IN THE MATTER OF THE ARBITRATION PROCEEDINGS
ELIZABETH ELIZONDO, Petitioner,
WILLIAM F. FINKL ACADEMY LOCAL SCHOOL COUNCIL, Respondent.
HEARING OFFICER’S DECISION AAA 51 160-00507 99
Involving the Nonretention of Elizabeth Elizondo
Hearing Officer: Jay E. Grenig
For the Petitioner:
William J. Quinlan, Attorney at Law, Chicago Principals & Administrators
For the Respondent:
Elaine K. Siegel, Attorney at Law, Hager & Siegel
This matter was brought for hearing before Arbitrator Jay E. Grenig on January 28, February 2, 11, 14, 21, 23, March 1, 2, 3, 5, 6, 9, 10, 11, and 12, 2000. A prehearing conference was held on January 20, 2000. The parties were given full opportunity to present all relevant evidence and arguments. The hearing was transcribed by a court reporter resulting in over 3,000 pages of testimony. More than 100 exhibits were admitted in evidence. Upon receipt of the parties’ briefs, the hearing was declared closed on March 13, 2000.
The issues before the Hearing Officer are as follows:
1. Is the case arbitrable?
2. Was the Respondent’s nonretention of the Petitioner arbitrary and capricious?
III. PERTINENT STATUTORY PROVISIONS
S.H.A. 105 ILCS 5/34-2.2
§ 34-2.2 Local school councils—Manner of operation.
. . . . (c) A majority of the full membership of the local school council shall constitute a quorum and whenever a vote is taken on any measure before the local school council, a quorum being present, the affirmative vote of a majority of the votes of the full membership then serving on the local school council shall determine the outcome thereof . . . .
S.H.A. 105 ILCS 5/34-2.3
§ 34-2.3 Local school councils—Powers and Duties. Each local school council shall have and exercise, consistent with the provisions of this Article and the powers and duties of this Article and the powers and duties of the board of education, the following powers and duties:
1. (A) To annually evaluate the performance of the principal of the attendance center using a Board approved principal evaluation form, which shall include the evaluation of (i) student academic improvement, as defined by the school improvement plan, (ii) student absenteeism rates at the school, (iii) instructional leadership, (iv) the effective implementation of programs, policies or strategies to improve academic achievement; (v) school management, and (vi) any other factors deemed relevant by the local school council, including without limitation, the principal’s communication skills and ability to create and maintain a student-centered learning environment to develop opportunities for professional development, and to encourage parental involvement and community partnerships to achieve school improvement.
(B) to determine in the manner provided by subsection (c) of Section 34-2.2 whether performance contract of the principal shall be renewed:
(C) . . . . A Council shall be required, if requested by the principal to provide in writing the reasons for the council’s not renewing the principal’s contract.
1.5 The local school council’s determination of whether to renew the principal’s contract shall be based on an evaluation to assess the educational and administrative progress made at the school during the principal’s current performance-based contract. The local school council shall base its evaluation on (i) student academic improvement, as defined by the school improvement plan, (ii) student absenteeism rates at the school, (iii) instructional leadership, (iv) the effective implementation of programs, policies or strategies to improve academic achievement; (v) school management, and (vi) any other factors deemed relevant by the local school council, including without limitation, the principal’s communication skills and ability to create and maintain a student-centered learning environment to develop opportunities for professional development, and to encourage parental involvement and community partnerships to achieve school improvement. If a local school council fails to renew the performance contract of a principal rated by the general superintendent, or his or her designee, in the previous years’ evaluations as meeting or exceeding expectations, the principal within 15 days after the local school council’s decision not to renew the contract may request a review of the local school council’s principal non-retention decision by a hearing officer appointed by the American Arbitration Association. A local school council member or members or the general superintendent may support the principal’s request for review. . . . . All requests to review the retention or non-retention of a principal shall be submitted to the general superintendent, who shall, in turn, forward such requests within 14 days of receipt to the American Arbitration Association. . . . . If the local school council does not retain the principal and the principal requests a review of the retention decision, the local school council and the parties shall be considered adversarial parties and a hearing officer shall be chosen between those 2 parties in the manner described in Section 34-85 of this Code. The hearing shall begin within 45 days after the initial request for review. The hearing officer shall render a decision within 45 days after the hearing begins. The Board shall contract with the American Arbitration Association for all of the hearing officer’s reasonable and necessary costs. In addition, the Board shall pay any reasonable costs incurred by a local school council for representation before a hearing officer.
1.10 The hearing officer shall conduct a hearing, which shall include (i) a review of the principal’s performance, evaluations, and other evidence of the principal’s service at the school, (ii) reasons provided by the local school council for its decision, and (iii) documentation evidencing views of interested persons, including, without limitation, students, parents, local school council members, school faculty and staff, the principal, the general superintendent or his or her designee, and members of the community. The hearing officer shall set the local school council decision aside if that decision, in light of the record developed at the hearing, is arbitrary and capricious. The decision of the hearing officer may not be appealed to the Board or the State Board of Education. If the hearing officer decides that the principal shall be retained, the retention period shall not exceed 2 years.
Elizabeth Elizondo (“Petitioner” or “Principal”) was selected by the Local School Council (“Respondent” or “LSC”) as the principal for Finkl Academy (“Academy”), an elementary school in the Chicago Public Schools, under a four-year “Uniform Principal Performance Contract” dated March 21, 1996, for the period April 1, 1996, to March 31, 2000. The contract provided that it “shall expire at the end of its stated term and shall not grant or create any contractual rights or other expectancy of continued employment beyond the term of this Agreement.” The Petitioner has been the Academy’s principal since the Academy opened.
The Academy is located between the Pilsen and Little Village communities on the southwest side of Chicago and serves over 750 students in grades prekindergarten through the eighth grade. The student population is nearly 90 percent Hispanic and 10 percent African-American. The school has been on remediation status since October 1996 because of student scores on the Iowa Test of Basic Skills (ITBS). The school has developed community partnerships with the Finkl Steel Company, Flex-Mat Company, and Alivio Health Clinic.
B. THE NONRETENTION DECISION
Members of the LSC met on October 27, 28, and 29, 1999, to consider the renewal of the Petitioner’s contract. As part of the process, the Respondent surveyed teachers and other employees at the Academy. Seventeen of the surveys were returned indicating the person who completed the survey thought the Petitioner’s contract should not be renewed. These surveys included comments briefly indicating the reason for this opinion. Three others indicated they did not want her contract renewed but did not include comments. One response did not indicate any opinion, stating that the responding person had not been at the school long enough, but that the person believed the school has a lot of problems stemming from the inefficiency of the administration. Thirty-two responses indicated the LSC should renew the Petitioner’s contract.
On October 28, the Respondent met and considered a number of documents including past evaluations of the Petitioner by the LSC, the School Improvement Plans, the staff surveys, and the Regional Educational Officer’s most recent evaluation of the Petitioner. LSC member Miller did not attend the meeting because of another commitment. He testified that he talked to LSC members about the October 28 meeting later the afternoon of October 28.
On October 29, the Respondent voted not to retain the Petitioner as principal of the Academy. LSC members voting in favor of not renewing the Petitioner’s contract were Mrs. Ortiz, Mr. Miller, Mrs. Garcia, Mr. Steiner, Mrs. Martin, and Mrs. Balderas. Mr. Vargas abstained and Mrs. Manrique voted against the motion. On November 1, 1999, the Petitioner wrote the respondent requesting a statement of reasons for her nonretention.
On November 12, 1999, the Respondent met with Ms. Siegel to discuss Ms. Siegel representing the Respondent in this matter. On November 23, 1999, the Respondent met with Ms. Siegel to discuss responding to the Petitioner’s request for the reasons for her nonretention. The Respondent sent the Petitioner a statement of its reasons in a letter dated November 24, 1999. A copy of that letter is attached as Exhibit A.
C. APPEAL OF THE NONRETENTION DECISION
On November 1, 1999, the Petitioner notified Paul Vallas, the Chief Executive Officer (“CEO”) of the Chicago Board of Education (“Board”) that she was appealing the Respondent’s nonretention decision. Thereafter on November 10, 1999, the Board’s General Counsel wrote the American Arbitration Association indicating that it was “desirous of entering into a contractual relationship with AAA for establishment of a program for the review by AAA arbitrators of local school councils’ principal retention decisions.” In that letter, the General Counsel indicated that the CEO had received a request from the Petitioner for a review of the Respondent’s nonretention decision. The letter also indicated that the hearing must begin within 45 days of the date of receipt of the request for review.
On November 22, 1999, the CEO wrote the AAA expressing his support for the Petitioner’s request for review of the Respondent’s nonretention decision. In that letter, the CEO stated that he believed “that decision to be arbitrary and capricious.” He also reminded the AAA that the hearing had to begin within 45 days of the Petitioner’s November 1, 1999, request.
On November 29, 1999, Ms. Siegel notified the Board that she had been retained to represent the Respondent in this matter. Ms. Siegel followed up that letter with another letter dated December 3, 1999, to the Board’s Legal Department asking for an update on the scheduling of the hearing on the Petitioner’s appeal. On December 6, 1999, the AAA wrote the Board’s General Counsel stating that it was necessary to meet with the General Counsel to work out details of the new program before the AAA could proceed.
On December 7, 1999, the AAA sent a letter to the Petitioner, the Board’s General Counsel, and the CEO acknowledging receipt of the November 19, 1999, demand for arbitration. The letter included a list of potential hearing officers, but the list did not satisfy the Reform Act’s criteria for hearing officer selection. A copy of the letter was not sent to the Petitioner’s attorney although the General Counsel’s office was aware that Petitioner was represented by counsel.
The Board’s General Counsel did not forward the letter of December 7 to the Petitioner’s counsel and it did not respond to the AAA letter itself. On December 13, 1999, the General Counsel notified the AAA that the CEO was “hereby withdrawing as an active participant in the above-referenced matter.” On January 5, 2000, Mr.Quinlan notified the AAA that he was representing the Petitioner in this matter. In that letter, Mr. Quinlan explained the statutory procedures for selecting a hearing officer. He also asked the AAA to immediately proceed to convene this statutory arbitration.
Following negotiations between the Board and the AAA regarding terms of the program, the AAA sent a letter to the Petitioner and Respondent on January 12, 2000 enclosing a list of five names from which the parties were to select a hearing officer.
The Petitioner’s 1996-97 evaluation by the Respondent showed a total score of 61. (A score between 50-110 was defined as “Meets Expectations” and a score between 111 and 140 was defined as “Exceeds Expectations.”) The Petitioner’s 1997-98 evaluation resulted in a score of 17. (A score between 0 and 19 was defined as does not meet expectations. She received ratings of “does not meet expectations” in areas of school leadership and in communication of the school curriculum and student achievement. The evaluation indicated that the Petitioner needed to provide the Respondent with satisfactory explanation of internal accounts, have LSC members present during staffing decisions, maintain a professional and equitable environment towards staff and parents, and insure that forms that effect availability services and benefits to students are filed in a timely manner.
The Respondent’s 1998-99 annual evaluation of the Petitioner resulted in a cumulative score of 20. (A score between 20-26 is defined as “Meets Expectations.” A score between 0-19 is defined as “Does not Meet Expectations.”) The evaluation showed “Does Not Meet” ratings for interpersonal relations with parents and community. Only in the area of student attendance did the Petitioner receive a “Exceeds Expectations” rating.
In 1997, the Board’s Regional Executive Officer (“REO”) evaluated the Petitioner and gave her a cumulative score of 24. (A score of 33-20 was defined as “Meets Expectations.”) She received “Does Not Meet” ratings in Elementary Student Assessment (Reading). In 1998 the REO gave the Petitioner a rating of 26. (A score of 20-26 was defined as “Meets Expectations.” She did not receive a “Does Not Meet” rating from the REO in any criterion that year.
In 1999 the REO gave the Petitioner a score of 25. (A score of 20-26 being defined as “Meets Expectations.”) She received a “Does Not Meet” with respect to Elementary Student Assessment (Reading).
E. TEST SCORES
The Iowa Tests of Basic Skills (Reading Comprehension Results for Grades 3 through 8 Combined) shows 67.0 percent of students in Quartile 1 in 1996 and 41.5 percent in that quartile in 1999. In 1996, 24.6 percent of the students taking the test were ranked in Quartile 2 and 40.4 percent were ranked in that quartile in 1999. In 1996, 8.1 percent of the students ranked in Quartile 3 and 16.7 percent in 1999. In 1996, 0.4 percent of the students taking the test were ranked in Quartile 1, 2.5 percent in 1998, and 1.5 percent in 1999. In 1996 9.5 percent of the students were ranked at or above the national average and 19.6 percent in 1999.
With respect to “Math Total” for the same grades, 68.4 percent of the students raked in Quartile 1 in 1996 and 34.7 percent ranked in that quartile in 1999. In 1996, 22.1 percent were ranked in Quartile 2 and 39.1 percent in 1999.
F. SCHOOL IMPROVEMENT PLANS
The 1996-1997 School Improvement Plan (SIP) recognized that certain aspects of the attendance program were working but suggested that work was needed on such matters as improved communication with parents and increased incentives. The plan indicated certain aspects of discipline were working but that parent involvement and staff development needed work. The SIP also suggested there needed to be work on a stronger uniform policy. With respect to safety, the SIP indicated that parent patrol, a security guard, and security cameras were working, but such things as gang and drug prevention needed work. The 1996-97 SIP indicated that there needed to be work on better communication with teachers, parents, and students. The SIP indicated that such staff development issues as team building, individual professional development, curriculum development, and strategies for test preparations needed work.
The 1997-1998 SIP acknowledged that the spring of 1996 was the first opportunity to test the student body. While the majority of scores were still below grade level, the SIP noted that there was an overall increase in students’ scores. The SIP recognized accomplishments for 1996-1997 as including incentives for honor roll students and for perfect attendance students, parents’ read aloud, and small classrooms. Listed as items needing work were attendance recognition every marking period, communication with parents and teachers, increasing parental involvement, increasing parental support, gang prevention, wiring for computers, better communication with parents, increased home visits, increase teacher-to-teacher communication at all grade levels, grade books and lesson plan books monitored regularly, increase teacher participation in staff development, increase math and reading staff development, use of technology, school-wide bilingual curriculum and policies.
The 1997-1998 SIP established priority goals and identified the responsible person. The Petitioner was responsible for developing a remediation plan, implement daily read aloud and independent reading by July 1997, develop an after school remediation program for under-achieving students. The section on alignment of budget allocations listed improving student achievement, insuring all students are secure, and increasing parental involvement as priorities.
The 1998-1999 SIP listed of accomplishments for 1997-98 included parents’ read aloud, extended day, year-round school schedule, incentives for honor roll students and perfect attendance students, and small classrooms. Among the items listed as needing work were more community outreach, communication with parents and teachers regarding discipline, increased parental involvement with respect to discipline, increased parental support, gang and drug prevention, lack of wiring for computers between classrooms and between computer lab and classrooms, and lobbying the Board for help in installing computer networking, teacher-to-teacher communication, review of job responsibilities, increased student participation in staff development, school-wide bilingual curriculum and policies, and primary reading curriculum.
Among the priority items for curriculum were developing continuity with a curriculum calendar and giving a weekly reading test. The priority goals under alignment of budget allocations listed improving student achievement and increasing parental involvement. The Petitioner was responsible for implementing a daily read aloud and independent reading as well as maintaining reduced student teacher ratios and for the SIP Monitoring Committee’s submitting monthly reports to the Respondent. The Petitioner was also responsible for integrating computer use into instruction, providing staff development on increased use of technology and on leadership skills, increasing communication about school progress, and monitoring the Bridge Program and Lighthouse Program.
The 1999-2000 SIP showed a number of accomplishments. It indicated that what needed work included the read aloud program, parent involvement in discipline matters, increasing parental support, installing wiring for computers, creating a comprehensive staff development schedule, increasing math and reading staff development, networking with community businesses,
G. STAFF SURVEYS
Past staff surveys showed divergent views regarding the Petitioner’s performance. There were numerous surveys highly supportive of the Petitioner. Negative comments related to parent/community involvement, providing training, dealing fairly with everyone, and providing instructional leadership. There are a number of petitions and letters from students and parents supporting the renewal of the Petitioner’s contract.
In April 1997, the CPS Director of Intervention, Office of Accountability sent the Petitioner and Respondent a report indicating various weaknesses in the Academy, including grade brooks and lesson plans not monitored regularly, professional development not meeting staffs’ needs, bilingual program not clearly received, no evidence of remediation program for low achieving students, and unavailability of after school program. The report recommended that lesson plans be reviewed regularly, a comprehensive review of the bilingual program be conducted, and a comprehensive staff development plan be implemented. In 1997, the CPS Department of Language and Cultural Education found that the Academy’s bilingual program was not in compliance with respect to individual entry assessment and updating the student on line roster and other specified items.
For most of its existence the Academy has been on remediation or probation status. While test scores have improved in many areas during this time, this probationary status continues. There is evidence that there is a high turnover in the student population and a large number of students who do not speak English or for whom English is a second language.
V. POSITIONS OF THE PARTIES
A. THE PETITIONER
The Petitioner argues that these proceedings are not time-barred. The Petitioner asserts that the failure of the AAA and the Board to act strictly within the timelines of Section 34-2 does not justify stripping the principal’s statutory right to a hearing on the merits. The Petitioner says it is absurd to contend in an employment dispute that the failure of the employer to negotiate a contract with a statutorily designated neutral can strip the employee of a statutory entitlement.
According to the Petitioner, the Respondent has the burden of proof in establishing that it properly acquitted its responsibilities in evaluating the principal in the manner mandated by the legislature. The Petitioner argues that a written evaluation of the Petitioner is required and that the evaluation was conducted improperly. She also contends that the vote on October 29 is invalid because two of the LSC members who voted on October 29 were not present for deliberations on October 28. It is the Petitioner’s position that the evidence fails to establish any rational justification for the Respondent’s decision and it is therefore arbitrary and capricious.
B. THE RESPONDENT
The Respondent argues that the requirement that the hearing begin within 45 days after the initial request for review is mandatory and jurisdictional. The Respondent claims that had the Petitioner responded diligently to the efforts of the AAA to initiate proceedings, the arbitration could have begun in a timely manner. Because she did not, the Respondent asserts that the case must be dismissed.
The Respondent contends that the Petitioner has failed to carry her burden of demonstrating that the non-renewal of her contract by the Respondent was “arbitrary and capricious.” The Respondent asserts that it acted properly under the Reform Act and that its decision not to renew the Petitioner’s contract should be sustained.
The 1989 Chicago School Reform Act transferred governmental authority from the Board to newly created entities called “Local School Councils.” One LSC was established for each attendance center operated by the Chicago Board of Education. The LSCs have limited government authority as specified in 105 ILCS 5/34-2.3.
Under the Reform Act, LSCs have the authority to select the principal but they have no authority to contract or employ; only the Board is authorized to do so. 105 ILCS 5/34-2.3; 5/34-18; 5/34-8.1; 5/34-21.3. Both the LSC and the Board are signatories to the contract; the Board is the employer and the LSC acts as an agent of the Board. However, an LSC has the authority to determine whether the performance contract of a principal for its attendance center shall be renewed. 105 ILCS 5/34-2.3(2).
Under the Reform Act, principals have a property right in their position for the duration of their performance contract. See Fummarollo v. Chicago Board of Educ., 142 Ill.2d 54, 153 Ill.Dec. 177 (1991). During the term of the contract, the principal may be removed only for cause. Principals have no expectation or entitlement to contract renewal.
The Academy’s LSC voted not to renew the Petitioner’s contract and the Petitioner then requested a review of that decision by a hearing officer within the time period specified by statute. See 105 ILCS 5/34-2.3(1)(B). See Hamilton v. Chrysler Corp., 281 Ill.App.3d 284, 666 N.E.2d 758, 760 (1st Dist.1996) (duty of complainant to establish compliance with limitations period). Cf. Carver v. Nall, 166 Ill.2d 554, 714 N.E.2d 496, 498 (1999) (party seeking judicial review of an administrative decision must strictly adhere to Act’s procedures.) At that point the Petitioner had done all she was required to do by the statute in order to commence the review process.
Once the Petitioner requested review of the LSC’s nonrenewal decision, the statute places the obligation of notifying the AAA and making arrangements for a hearing on a third party, specifically the “general superintendent” (i.e. the CEO). Neither the Petitioner nor the Respondent has the statutory authority or power either to contract with the AAA regarding the hearing procedure or to contact the AAA in order to commence the proceeding. Nonetheless, the representatives of both the Petitioner and the Respondent both made numerous attempts, contacting both the General Counsel’s office and the AAA. For example, an attorney in the General Counsel’s office testified that the Petitioner’s attorney contacted him approximately 15 times during November and December in an attempt to move the process and create rules governing the process.
Following receipt of the Petitioner’s request for review, the CEO, through the Board’s General Counsel then notified the AAA of the Petitioner’s request for review within the time specified by statute. In that letter, the General Counsel recognized that no contract or other arrangements had been made, including agreeing on which arbitration rules were applicable to the proceedings, the selection procedures for the hearing officer, and the hearing officer’s compensation. See 105 ILCS 5/34-2.3(2) (“The Board shall contract with the American Arbitration Association for all of the hearing officer’s reasonable and necessary costs.”).
While this was going on, the CEO wrote a letter to the AAA on November 22, 1999, expressing his support for the Petitioner’s request for review of the Respondent’s nonretention decision and stating that he believed “that decision to be arbitrary and capricious.” An Associate Attorney from the General Counsel’s office testified that during this time the he was representing the Petitioner. The Associate Counsel testified that he told the Respondent’s president that because he would be representing the Petitioner it would not be appropriate for him to talk to the president about the matter.
Nearly a month later, the Board still had not worked out an agreement with the AAA. The AAA’s Regional Vice President wrote the General Counsel on December 6, 1999, stating that it was necessary to meet with the General Counsel to work out details of the new program before the AAA could proceed. The AAA letter of December 7, 1999, did not include a list of hearing officers in compliance with the requirements of the Reform Act. Furthermore, a copy of the letter was not sent to Petitioner’s attorney although the General Counsel was aware that Petitioner was represented by counsel.
Following negotiations between the Board and the AAA regarding terms of the program, the AAA sent a letter to the Petitioner and Respondent on January 12, 2000 enclosing a list of five names from which the parties were to select a hearing officer. Neither the Petitioner nor the Respondent was in a position to compel the hearing proceedings to go forward until the AAA and the Board reached an agreement on the terms on or about January 12, 2000.
Despite having aligned himself with the Petitioner, less than a month later, the Board’s General Counsel notified the AAA that the CEO was “hereby withdrawing as an active participant in the above-referenced matter.” The Associate Counsel testified that at some point he then advised the Petitioner’s attorney that the General Counsel’s office would not be representing the Petitioner.
As summarized above, the facts of this case differ from those in the cases cited by Respondent, including Jones v. General Superintendent of Schools of City of Chicago, 58 Ill.App.3d 504, 374 N.E.2d 834 (1st Dist. 1978) (board of education had no authority to dismiss or remove principal where board did not hold hearing on case within specified time limit), Carter v. State Board of Educ., 90 Ill.App.3d 1042, 414 N.E.2d 153 (1st Dist. 1980) (teacher himself caused delay attendant upon instituting proceedings); and McReynolds v. Civil Service Comm’n, 18 Ill.Ap.3d 1062, 311 N.E.2d 308 (1st Dist. 1974) (Civil Service Commission responsible for delay in commencing hearing). Unlike the situation here, in none of these cases, did a third-person control access to the administrative hearing process.
Certainly, the Legislature did not intend that the 45-day provision relating to commencement of the hearing to be construed in a manner that a third-party’s action or inaction would result in the forfeiture of the rights of either the Petitioner or the Respondent, both to a hearing on the merits, where the third-party was the only one empowered under the Act to come to terms with the AAA regarding a hearing. See Kaplan v. Tabb Associates, Inc., 276 Ill.App.3d 320, 657 N.E.2d 1065 (1st Dist. 1995) (“shall” should be considered permissive only if it is evident from the context of the statute or the clear intent of the drafters that it is permissive). This conclusion was particularly compelling here where the CEO acted in a variety of capacities. At times, the CEO, on behalf of the Board, has acted together with the LSC as the employer. Following the Petitioner’s request for a hearing, the CEO aligned himself with the Petitioner and the General Counsel’s office acted as counsel for the Petitioner. Just days before the 45-day period expired, the CEO unilaterally withdrew his support for and representation of the Petitioner. However, there was no formal substitution of attorney and correspondence from the AAA and the Respondent apparently was not forwarded to Petitioner’s counsel in a timely manner.
Finally, it is unclear as to which party would be prejudiced by a determination that these proceedings are time-bound. For example, in Jones v. General Superintendent of Schools of City of Chicago, 58 Ill.App.3d 504, 374 N.E.2d 834 (1st Dist. 1978), it was held that the board of education had no authority to dismiss or remove a principal when the board did not commence the hearing proceedings in a timely manner. See also McReynolds v. Civil Service Comm’n, 18 Ill.Ap.3d 1062, 311 N.E.2d 308 (1st Dist. 1974) (where Civil Service Commission did not commence hearing in a timely manner, employee’s discharge was set aside) Under these circumstances, it would be unconscionable to permit the CEO’s action or inaction to deprive either party of the right to a hearing as contemplated by the Reform Act. Cf. Jones v. Municipal Officers Electoral Bd., 112 Ill.App.3d 926, 446 N.E.2d 256 (1st Dist. 1983) (where interpretation is required, we will select constructions that leads to a logical result, considering object to be attained). Accordingly, it is concluded that these proceedings are not time-barred and are arbitrable.
The hearing officer may set aside the Respondent’s decision only if, in light of the record developed at the hearing, it is determined that the decision is “arbitrary and capricious.” The Respondent’s action is arbitrary and capricious if it (1) relies on factors the legislature did not intend for it to consider, (2) entirely fails to consider an important aspect of the problem, or (3) offers an explanation for its decision that runs counter to the evidence before it or that it could not be ascribed to a difference in view. Waste Management of Illinois, Inc. v. Pollution Control Bd., 231 Ill.App.3d 278, 284-85 (1st Dist. 1992), citing Greer v. Illinois Housing Development Authority, 122 Ill.2d 462 (1988). The Respondent has no burden to support its conclusions with a given quantum of evidence. 231 Ill.App.3d at 284.
In determining whether or not to retain the Petitioner, the Respondent was acting in a quasi-legislative function. Cf. Tyska v. Board of Educ. v. Township High School Dist 214, 117 Ill.App.3d 917, 927, 453 N.E.2d 1344, 1353 (1st Dist.1983) (decision to close school and to reassign students to other attendance zones is exercise of discretionary powers granted to board and is quasi-legislative in nature). The Reform Act did not require the LSC to conduct any sort of hearings, receive evidence or testimony, or make determinations based on the evidence or testimony in making its decision to renew or not renew the Petitioner’s contract. Thus, the Respondent was not acting as a quasi-adjudicative body. See 5 ILCS 120/2(d) (Illinois Open Meetings Act) (a “quasi-adjudicative body” is an administrative body charged by law or ordinance with responsibility to conduct hearings, receive evidence or testimony and make determinations based thereon). Compare Jay Grenig, Alternative Dispute Resolution § 5.40 (2d ed. 1990) (where there is an adjudicative hearing, the hearing must be conducted by all arbitrators). It is significant that the Reform Act does not give a principal the right to appear at a meeting where a local school council is considering the renewal of the principal’s contract to present evidence and testimony and to cross-examine witnesses and challenge evidence presented by those opposing renewal of the contract.
2. Inadequate Student Academic Improvement
a. “At Risk” Status of the Academy
The Academy was placed on remediation in the fall of 1996 because of student academic performance. In 1997, CPS placed the Academy on probation because of low test scores. The Academy is still on probation.
b. Test Results
During the Petitioner’s service at the Academy, its students have made gains in their test scores. In 1999, 19.6 percent of the students tested in grades 3 through 8 were at or above the national average compared with 9.5 percent in 1996. In that same year, 1.5 percent were in the fourth quartile compared with 2.5 percent in 1998 and 0.4 percent in 1996.
With respect to math, 28.8 percent were at above the national average in 1999, compared with 29.5 percent in 1998, and 10.5 percent in 1996. In 1999, 6.6 percent were in the quartile 4 compared with 8.9 percent in 1998 and 0.7 percent in 1996.
While there has been improvement in many areas with respect to these test scores, the Respondent’s judgment that the scores remain deficient is not arbitrary and capricious. It is not irrational for the Respondent to desire even better test performance. The Respondent’s dissatisfaction with the test scores is reflected to some degree in the Board’s placing the Academy on probation.
3. Instructional Leadership
The Respondent is the instructional leader at the Academy. The Respondent is of the opinion that there are persistent problems with the Academy curriculum, including inadequate bilingual education and a pattern of inconsistency throughout the curriculum.
b. Deficiencies in General Curriculum
The School Improvement Plan has identified improvement of reading as the school’s number one priority. While witnesses disagreed as to whether there was an effective reading program, there is some credible evidence that there has not been an acceptable follow-through on the reading objectives of the SIP. Even the REO’s 1999 evaluation indicated the Petitioner did not meet expectations with respect to elementary student assessment—reading.
A number of the witnesses recognized the importance of the read aloud program. The Petitioner had the responsibility of maintaining the program despite the problems of finding a person to conduct it. The failure of a parent volunteer to conduct the program as promised does not excuse the Petitioner from making reasonable efforts to find another staff member or volunteer to conduct this important program.
It is unclear, however, whether the Petitioner or the Respondent is responsible for the failure to maintain a full-day kindergarten. Accordingly, the Petitioner’s nonrenewal is not supported by the claim that she failed to maintain a full-day kindergarten. Likewise, the Petitioner cannot be faulted for the failure of the Board to hardwire the Academy for computers when it was built or adequately to fund the computer program. The evidence shows that she has made reasonable attempts to obtain donations of computers and to seek volunteers to install the computers.
c. Inadequate Program of Bilingual Education
While there is conflicting evidence on the issue, there is still evidence of reports from various agencies criticizing the bilingual program at the Academy. Most of the criticism of the bilingual program from outside agencies occurred in 1997. The November 1999 report on the bilingual program is lacking in detail and is not persuasive. While some were not happy with various aspects of the program, the evidence does not establish that the bilingual curriculum was unacceptable or that the Petitioner was deficient in this area.
4. Ineffective Implementation of Programs and Strategies
The evidence is insufficient to establish that the Petitioner had a pattern or practice of missing or canceling meetings or relegating her duties to others. Further, the evidence does not demonstrate the Petitioner had a pattern of failing to implement the School Improvement Plans.
5. Inadequate School Management and Administration
a. Staffing Problems
The record discloses that the Respondent was very interested in becoming involved in Academy staffing matters. While the Respondent may not have had the legal authority to hire staff, there is no showing that it was inappropriate for the Respondent to be kept informed of staffing matters and to be given an opportunity to express its views on staffing matters. The Respondent’s determination that the Petitioner did not give the Respondent a satisfactory role in staffing is not arbitrary and capricious.
With respect to the security guard allegedly smelling of alcohol while in the parking lot after school, the Petitioner was not in anyway derelict in her duties. The one incident was reported to the assistant principal who reported it to the guard’s supervisor. The Petitioner did not have supervisory responsibility for the guard and the evidence does not show that the matter was reported to her or that she could have done anything more than the assistant principal did. Further, the evidence discloses only the one incident and there is no evidence of any repeat of the alleged misconduct.
While there is a high rate of faculty turnover, the evidence is insufficient to establish that the Petitioner is responsible for the turnover or could do anything to correct the problem. The record shows that a large number of the teachers who left during the four years left because of family situations, including pregnancy, or left Chicago. The anecdotal evidence that some teachers may have left because of disagreements with the Petitioner is unpersuasive.
c. Lack of Professional Development Opportunities
The evidence fails to demonstrate any inadequacy with respect to professional development opportunities for faculty. There is credible testimony that faculty were given many opportunities for professional development and that their requests to participate in development activities were routinely granted.
The evidence does not support the claim that the Petitioner failed to prepare for foreseeable absences or that there was a lack of understanding of lines of authority.
e. Lighthouse Program
The evidence of a “chaotic transition” at the Lighthouse Program involved the first day of the program. There is insufficient evidence to show that the Petitioner’s actions with respect to this program were inadequate or unsatisfactory.
f. Loss of School Lunch Funding
There is insufficient evidence with respect to this issue to show any fault on the part of the Petitioner regarding loss of school lunch funding.
g. Financial Problems
The evidence is insufficient to show that the Petitioner engaged in improper accounting procedures. There is nothing in the record with respect to how internal accounts are to be maintained and how contributions from community partners are to be treated.
h. Failure to Cooperate with Respondent
Likewise, the evidence does not show that the Petitioner transferred funds without first obtaining LSC authorization or that she has been unresponsive to the Respondent’s requests for financial information.
6. School Leadership Concerns
a. Poor Communication and Negative Relationships
It appears from the evidence that the Petitioner got along very well with some faculty and parents and had poor relationships with others. The evidence is insufficient to show poor communication with faculty or parents.
This reason for nonrenewal is arbitrary and capricious. There is no showing that the LSC ever communicated its desires with respect to the Petitioner taking vacation days to which she is entitled under her contract. Nor is there any evidence that the Petitioner violated any school rules, policies, or procedures in the scheduling of her vacations. When she did take vacations, she designated who was to act in her place.
7. Misuse of Community Partnership
There is no credible evidence to support this reason. While the Petitioner may have indicated that if she left certain community partners would probably leave with her, the evidence fails to show that she threatened to encourage these partners to leave or that she attempted to pressure any partner to cease working with the academy.
8. October 1999 Evaluation Process
The record shows that the Respondent conducted an evaluation to assess the educational and administrative progress made at the school during the Petitioner’s current performance-based contract. Cf. Miller v. City of Tacoma, 979 P.2d 429, 434 (Wash.1999) (evaluation involved discussing and considering worth, quality and significance of applicants’ qualifications). The Respondent based its evaluation on those items listed in the Act. There is credible evidence in the record that the LSC members examined past LSC evaluations of the principal as well as an evaluation by the Regional Executive Officer as well as other documents relating to the Petitioner’s performance.
Nothing in the Act suggests that the evaluation had to be in writing. See Kurr v. Town of Cicero, 235 Ill.App.3d 528, 601 N.E.2d 1233, 1237 (1st Dist. 1992) (ordinance requiring “detailed report” of building code violations held not to require a written report); Tyska v. Board of Educ. Township High Sch. Dist. 214, 117 Ill.App.3d 917, 928, 453 N.E.2d 1344, 1354 (1st Dist. 1983) (in absence of statute or rule requiring school board to make detailed findings, none are required).
The evaluation in October differs from the annual evaluation the Respondent is required to perform. 105 ILCS 5/34-34-2.3.1(A). That statute expressly requires the LSC to use an approved evaluation form. Testimony that “Lesson 6” prepared by the Board requiring a written annual evaluation is not persuasive here. A careful reading of Lesson 6 discloses that the timelines and the various requirements are applicable only to the annual evaluations of the principal. There is no contention here that the Respondent failed to conduct the annual evaluations properly.
Where the legislature has desired a written evaluation, it has expressly so provided. Id. (“evaluate the performance of the principal of the attendance center using a Board approved principal evaluation form”). Furthermore, had the legislature intended to require the evaluation to be in writing, it would not have been necessary to provide that an LSC provide written reasons for the nonrenewal “if requested by the principal.” 105 ILCS 5/34-2.3.1(C).
Based on the foregoing, it is determined that the Respondent satisfied the statutory requirement that its decision not to renew the Petitioner’s contract be based on an evaluation of the Petitioner.
9. Open Meetings Law
Any violation of the Illinois Open Meetings Law is waived if an action is not brought within 60 days of its occurrence. 5 ILCS 120/3. Thus, any claim of violation of the Open Meetings Law presented in this proceeding is not timely. The Petitioner does not cite any specific statute or case that would support its position that the Open Meetings Law was violated.
Moreover, the vote not to renew the Petitioner’s contract was taken at an open meeting on October 29. While some members may not have been present during the deliberations on October 28, there is no evidence that any member voted on October 29 who was not present when the vote was taken. There was no absentee voting and no one voted on behalf of another member. While Section 34-2.2 may prohibit proxy votes,, it does not require that a board member who votes be present for any or all of the deliberations preceding the vote.
If the Petitioner had been removed during the term of her contract, then that action would have been reviewed to determine whether there was “cause” for removal. The evidence in this case would fall short of satisfying the “cause” standard for removal during the term of a contract. However, this case involves a determination not to renew the Petitioner’s four-year contract at the expiration of the contract. By statute, the hearing officer is limited to determining only whether the nonrenewal decision was arbitrary and capricious in light of the record. See Legislative History of P.A. 91-622 (An arbitrator “would be empowered only to overturn a principal retention decision by the local school council, if that decision were arbitrary and capricious. What that essentially means, is that we can expect very few if any, council decisions to be overturned. But this provides a safety valve, in the event that a school council is indeed out of control, is making decisions based on whether the principal’s willing to sign a contract to hire the brother-in-law of a council member or inflate the grades of the child of a local school council member.”).
The evidence does not establish that the Respondent acted in an arbitrary and capricious manner when it decided not to renew the Petitioner’s contract. First, the Respondent did not rely on any factors that the legislature did not intend for it to consider. The Respondent is expressly authorized to consider “any other factors deemed relevant by the local school council.” 105 ILCS 5/34-2.3 (1.5). The record discloses that the LSC members did not entirely fail to consider an important aspect of the matter. The LSC members considered the student academic improvement as defined by the school improvement plans, student absenteeism rates, instructional leadership, the effective implementation of programs, policies or strategies to improve academic achievement, school management, and any other factors deemed relevant by the Respondent. The two prior evaluations of the Petitioner’s performance were considered and each of these evaluations included the above criteria.
The Respondent is charged by statute with making the determination whether to renew the Petitioner’s contract. The Respondent took into consideration the results of a surveys of faculty and staff but it is not bound by those surveys; the Respondent is charged with the responsibility of exercising its discretion and judgment to determine whether the Petitioner’s contract should be renewed.
Since the Respondent is primarily responsible for fulfilling this statutory mandate, it is not for the hearing officer to determine whether or not the board’s decisions was wise or expedient or to interfere with the exercise of the powers by the members of the LSC in matters confided to their discretion. The hearing officer cannot question the wisdom of the final action. Right or wrong, it is the decision of the Respondent adopted as a quasi-legislative function within its powers. For the Respondent’s decision to be upheld, only one or more of its reasons must withstand scrutiny.
In this case the Respondent’s determination that the improvement in student test scores and the continued placement on probation were grounds for nonrenewal is not arbitrary and capricious. While reasonable persons may disagree as to whether this was a wise or expedient decision, the decision was the Respondent’s to make. There is credible evidence showing that the Academy has been on probation since 1997 and that, while there has been improvement, a substantial number of Academy students score below the national norms on tests. It is not arbitrary and capricious for the Respondent to look for new leadership in hopes of improving academic performance at the Academy.
Having considered all the relevant evidence and the arguments of the parties, it is concluded that:
1. The case is arbitrable.
2. The Respondent’s nonretention of the Petitioner was not arbitrary and capricious.
Accordingly, the decision of the Respondent is sustained.
The Administrative fees and expenses of the American Arbitration association totaling two thousand seven hundred fifty dollars ($2,750.00) shall be borne by the Board of Education of the City of Chicago. Therefore, the Board of Education of the City of Chicago shall pay to the American Arbitration Association the sum of two thousand seven hundred fifty dollars ($2,750.00).
In accordance with S.H.A. 105 ILCS 5/34-2.3 (1.5), the reasonable and necessary costs of the hearing officer totaling sixteen thousand five hundred dollars ($16,500) shall be borne by the Board of Education of the City of Chicago. Therefore, the Board of Education of the City of Chicago shall pay to the American Arbitration Association the sum of sixteen thousand five hundred dollars ($16,500).
The reasonable and necessary costs of the hearing officer also include the preparation of a verbatim transcript by court reporters. Because of the statutory mandate that the hearing officer render a decision within 45 days after the hearing begins, it was necessary to expedite delivery and preparation of the transcript as well as to hold hearings on Saturdays, Sundays, and evenings. In accordance with S.H.A. 105 ILCS 5/34-2.3(1.5), the Board of Education of the City of Chicago shall pay to Esquire Deposition Services the reasonable and necessary costs of the court reporter services in providing transcription services.
Executed this thirteenth day of March 2000.
Jay E. Grenig, Hearing Officer