Full Text of HB2801 102nd General Assembly
HB2801 102ND GENERAL ASSEMBLY |
| | 102ND GENERAL ASSEMBLY
State of Illinois
2021 and 2022 HB2801 Introduced 2/19/2021, by Rep. Sonya M. Harper SYNOPSIS AS INTRODUCED: | | 105 ILCS 5/34-85 | from Ch. 122, par. 34-85 |
|
Amends the Chicago School District Article of the School Code. Makes a
technical change in a provision concerning the removal of a teacher or a principal.
|
| |
| | A BILL FOR |
|
| | | HB2801 | | LRB102 14523 CMG 19876 b |
|
| 1 | | AN ACT concerning education.
| 2 | | Be it enacted by the People of the State of Illinois, | 3 | | represented in the General Assembly:
| 4 | | Section 5. The School Code is amended by changing Section | 5 | | 34-85 as follows:
| 6 | | (105 ILCS 5/34-85) (from Ch. 122, par. 34-85)
| 7 | | Sec. 34-85. Removal for cause; notice and hearing; | 8 | | suspension. | 9 | | (a) No
teacher employed by the
the board of education | 10 | | shall (after serving the
probationary period specified in | 11 | | Section 34-84) be removed
except for cause. Teachers (who have | 12 | | completed the probationary period specified in Section 34-84 | 13 | | of this Code) shall be removed for cause in accordance with the | 14 | | procedures set forth in this Section or, at the board's | 15 | | option, the procedures set forth in Section 24-16.5 of this | 16 | | Code or such other procedures established in an agreement | 17 | | entered into between the board and the exclusive | 18 | | representative of the district's teachers under Section 34-85c | 19 | | of this Code for teachers (who have completed the probationary | 20 | | period specified in Section 34-84 of this Code) assigned to | 21 | | schools identified in that agreement. No principal employed by | 22 | | the board of education shall be
removed during the term of his | 23 | | or her performance contract except for
cause, which may |
| | | HB2801 | - 2 - | LRB102 14523 CMG 19876 b |
|
| 1 | | include but is not limited to the principal's repeated
failure | 2 | | to implement the school improvement plan or to comply with the
| 3 | | provisions of the Uniform Performance Contract, including | 4 | | additional
criteria established by the Council for inclusion | 5 | | in the performance
contract pursuant to Section 34-2.3. | 6 | | Before service of notice of charges on account of causes | 7 | | that may be deemed to be remediable, the teacher or principal | 8 | | must be given reasonable warning in writing, stating | 9 | | specifically the causes that, if not removed, may result in | 10 | | charges; however, no such written warning is required if the | 11 | | causes have been the subject of a remediation plan pursuant to | 12 | | Article 24A of this Code or if the board and the exclusive | 13 | | representative of the district's teachers have entered into an | 14 | | agreement pursuant to Section 34-85c of this Code, pursuant to | 15 | | an alternative system of remediation. No written warning shall | 16 | | be required for conduct on the part of a teacher or principal | 17 | | that is cruel, immoral, negligent, or criminal or that in any | 18 | | way causes psychological or physical harm or injury to a | 19 | | student, as that conduct is deemed to be irremediable. No | 20 | | written warning shall be required for a material breach of the | 21 | | uniform principal performance contract, as that conduct is | 22 | | deemed to be irremediable; provided that not less than 30 days | 23 | | before the vote of the local school council to seek the | 24 | | dismissal of a principal for a material breach of a uniform | 25 | | principal performance contract, the local school council shall | 26 | | specify the nature of the alleged breach in writing and |
| | | HB2801 | - 3 - | LRB102 14523 CMG 19876 b |
|
| 1 | | provide a copy of it to the principal. | 2 | | (1) To initiate dismissal proceedings against a | 3 | | teacher or principal, the general superintendent must | 4 | | first approve written charges and specifications against | 5 | | the
teacher or
principal. A local school council may | 6 | | direct the
general superintendent to approve written | 7 | | charges against its principal on behalf of the Council
| 8 | | upon the vote of 7 members of the Council. The general | 9 | | superintendent must
approve those charges within 45 | 10 | | calendar days
or provide a written
reason for not | 11 | | approving those charges. A
written notice of those | 12 | | charges, including specifications,
shall be served upon | 13 | | the teacher or principal within 10 business days of the
| 14 | | approval of the charges. Any written notice sent on or | 15 | | after July 1, 2012 shall also inform the teacher or | 16 | | principal of the right to request a hearing before a | 17 | | mutually selected hearing officer, with the cost of the | 18 | | hearing officer split equally between the teacher or | 19 | | principal and the board, or a hearing before a qualified | 20 | | hearing officer chosen by the general superintendent, with | 21 | | the cost of the hearing officer paid by the board. If the | 22 | | teacher or principal cannot be found upon diligent
| 23 | | inquiry, such charges may be served upon him by mailing a | 24 | | copy thereof in a
sealed envelope by prepaid certified | 25 | | mail, return receipt requested, to the
teacher's or | 26 | | principal's last known address. A return receipt showing
|
| | | HB2801 | - 4 - | LRB102 14523 CMG 19876 b |
|
| 1 | | delivery to such address within 20 calendar days after the | 2 | | date of the
approval of the charges shall constitute proof | 3 | | of service.
| 4 | | (2) No hearing upon the charges is required unless the | 5 | | teacher or principal
within 17 calendar
days after | 6 | | receiving notice requests in writing of the general
| 7 | | superintendent that a hearing
be scheduled. Pending the | 8 | | hearing of the charges, the general superintendent or his | 9 | | or her designee may suspend the teacher or principal | 10 | | charged without pay in accordance with rules prescribed by | 11 | | the board, provided that if the teacher or principal | 12 | | charged is not dismissed based on the charges, he or she | 13 | | must be made whole for lost earnings, less setoffs for | 14 | | mitigation. | 15 | | (3) The board shall maintain a list of at least 9 | 16 | | qualified hearing officers who will conduct hearings on | 17 | | charges and specifications. The list must be developed in | 18 | | good faith consultation with the exclusive representative | 19 | | of the board's teachers and professional associations that | 20 | | represent the board's principals. The list may be revised | 21 | | on July 1st of each year or earlier as needed. To be a | 22 | | qualified hearing officer, the person must (i)
be | 23 | | accredited by a national arbitration organization and have | 24 | | had a minimum
of 5 years of experience as an arbitrator in | 25 | | cases involving labor and
employment
relations matters | 26 | | between employers and employees or
their exclusive |
| | | HB2801 | - 5 - | LRB102 14523 CMG 19876 b |
|
| 1 | | bargaining representatives and (ii) beginning September 1, | 2 | | 2012, have participated in training provided or approved | 3 | | by the State Board of Education for teacher dismissal | 4 | | hearing officers so that he or she is familiar with issues | 5 | | generally involved in evaluative and non-evaluative | 6 | | dismissals.
| 7 | | Within 5 business days after receiving the notice of | 8 | | request for a hearing, the general superintendent and the | 9 | | teacher or principal or
their legal representatives
shall | 10 | | alternately strike one name
from the list until only one | 11 | | name remains. Unless waived by the teacher,
the teacher or | 12 | | principal shall
have the right to proceed first with the | 13 | | striking. If the teacher or principal fails to participate | 14 | | in the striking process, the general superintendent shall | 15 | | either select the hearing officer from the list developed | 16 | | pursuant to this paragraph (3) or select another qualified | 17 | | hearing officer from the master list maintained by the | 18 | | State Board of Education pursuant to subsection (c) of | 19 | | Section 24-12 of this Code.
| 20 | | (4) If the notice of dismissal was sent to the teacher | 21 | | or principal before July 1, 2012, the fees and costs for | 22 | | the hearing officer shall be paid by the State
Board of | 23 | | Education. If the notice of dismissal was sent to the | 24 | | teacher or principal on or after July 1, 2012, the hearing | 25 | | officer's fees and costs must be paid as follows in this | 26 | | paragraph (4). The fees and permissible costs for the |
| | | HB2801 | - 6 - | LRB102 14523 CMG 19876 b |
|
| 1 | | hearing officer shall be determined by the State Board of | 2 | | Education. If the hearing officer is mutually selected by | 3 | | the parties through alternate striking in accordance with | 4 | | paragraph (3) of this subsection (a), then the board and | 5 | | the teacher or their legal representative shall each pay | 6 | | 50% of the fees and costs and any supplemental allowance | 7 | | to which they agree. If the hearing officer is selected by | 8 | | the general superintendent without the participation of | 9 | | the teacher or principal, then the board shall pay 100% of | 10 | | the hearing officer fees and costs. The hearing officer | 11 | | shall submit for payment a billing statement to the | 12 | | parties that itemizes the charges and expenses and divides | 13 | | them in accordance with this Section. | 14 | | (5) The teacher or the principal charged is required | 15 | | to answer the charges and specifications and aver | 16 | | affirmative matters in his or her defense, and the time | 17 | | for doing so must be set by the hearing officer. The State | 18 | | Board of Education shall adopt rules so that each party | 19 | | has a fair opportunity to present its case and to ensure | 20 | | that the dismissal proceeding is concluded in an | 21 | | expeditious manner. The rules shall address, without | 22 | | limitation, the teacher or principal's answer and | 23 | | affirmative defenses to the charges and specifications; a | 24 | | requirement that each party make mandatory disclosures | 25 | | without request to the other party and then update the | 26 | | disclosure no later than 10 calendar days prior to the |
| | | HB2801 | - 7 - | LRB102 14523 CMG 19876 b |
|
| 1 | | commencement of the hearing, including a list of the names | 2 | | and addresses of persons who may be called as witnesses at | 3 | | the hearing, a summary of the facts or opinions each | 4 | | witness will testify to, and all other documents and | 5 | | materials, including information maintained | 6 | | electronically, relevant to its own as well as the other | 7 | | party's case (the hearing officer may exclude witnesses | 8 | | and exhibits not identified and shared, except those | 9 | | offered in rebuttal for which the party could not | 10 | | reasonably have anticipated prior to the hearing); | 11 | | pre-hearing discovery and preparation, including provision | 12 | | for written interrogatories and requests for production of | 13 | | documents, provided that discovery depositions are | 14 | | prohibited; the conduct of the hearing; the right of each | 15 | | party to be represented by counsel, the offer of evidence | 16 | | and witnesses and the cross-examination of witnesses; the | 17 | | authority of the hearing officer to issue subpoenas and | 18 | | subpoenas duces tecum, provided that the hearing officer | 19 | | may limit the number of witnesses to be subpoenaed in | 20 | | behalf of each party to no more than 7; the length of | 21 | | post-hearing briefs; and the form, length, and content of | 22 | | hearing officers' reports and recommendations to the | 23 | | general superintendent. | 24 | | The hearing officer shall commence the hearing within | 25 | | 75 calendar days and conclude the hearing within 120 | 26 | | calendar days after being selected by the parties as the |
| | | HB2801 | - 8 - | LRB102 14523 CMG 19876 b |
|
| 1 | | hearing officer, provided that these timelines may be | 2 | | modified upon the showing of good cause or mutual | 3 | | agreement of the parties. Good cause for the purposes of | 4 | | this paragraph (5) shall mean the illness or otherwise | 5 | | unavoidable emergency of the teacher, district | 6 | | representative, their legal representatives, the hearing | 7 | | officer, or an essential witness as indicated in each | 8 | | party's pre-hearing submission. In a dismissal hearing in | 9 | | which a witness is a student or is under the age of 18, the | 10 | | hearing officer must make accommodations for the witness, | 11 | | as provided under paragraph (5.5) of this subsection. The | 12 | | hearing officer shall consider and give weight to all of | 13 | | the teacher's evaluations written pursuant to Article 24A | 14 | | that are relevant to the issues in the hearing. Except as | 15 | | otherwise provided under paragraph (5.5) of this | 16 | | subsection, the teacher or principal has the
privilege of | 17 | | being present at the hearing with counsel and of
| 18 | | cross-examining witnesses and may offer evidence and | 19 | | witnesses and present
defenses to the charges. Each party | 20 | | shall have no more than 3 days to present its case, unless | 21 | | extended by the hearing officer to enable a party to | 22 | | present adequate evidence and testimony, including due to | 23 | | the other party's cross-examination of the party's | 24 | | witnesses, for good cause or by mutual agreement of the | 25 | | parties. The State Board of Education shall define in | 26 | | rules the meaning of "day" for such purposes.
All |
| | | HB2801 | - 9 - | LRB102 14523 CMG 19876 b |
|
| 1 | | testimony at the hearing shall be taken under oath | 2 | | administered by the
hearing officer. The hearing officer | 3 | | shall cause a record of the
proceedings to be kept and | 4 | | shall employ a competent reporter to take
stenographic or | 5 | | stenotype notes of all the testimony. The costs of the
| 6 | | reporter's attendance and services at the hearing shall be | 7 | | paid by the party or parties who are paying the fees and | 8 | | costs of the hearing officer. Either party desiring a | 9 | | transcript of the
hearing shall pay for the cost thereof. | 10 | | At the close of the hearing, the hearing officer shall | 11 | | direct the parties to submit post-hearing briefs no later | 12 | | than 21 calendar days after receipt of the transcript. | 13 | | Either or both parties may waive submission of briefs. | 14 | | (5.5) In the case of charges involving sexual abuse or | 15 | | severe physical abuse of a student or a person under the | 16 | | age of 18, the hearing officer shall make alternative | 17 | | hearing procedures to protect a witness who is a student | 18 | | or who is under the age of 18 from being intimidated or | 19 | | traumatized. Alternative hearing procedures may include, | 20 | | but are not limited to: (i) testimony made via a | 21 | | telecommunication device in a location other than the | 22 | | hearing room and outside the physical presence of the | 23 | | teacher or principal and other hearing participants, (ii) | 24 | | testimony outside the physical presence of the teacher or | 25 | | principal, or (iii) non-public testimony. During a | 26 | | testimony described under this subsection, each party must |
| | | HB2801 | - 10 - | LRB102 14523 CMG 19876 b |
|
| 1 | | be permitted to ask a witness who is a student or who is | 2 | | under 18 years of age all relevant questions and follow-up | 3 | | questions. All questions must exclude evidence of the | 4 | | witness' sexual behavior or predisposition, unless the | 5 | | evidence is offered to prove that someone other than the | 6 | | teacher subject to the dismissal hearing engaged in the | 7 | | charge at issue.
| 8 | | (6) The hearing officer shall within 30 calendar days | 9 | | from the conclusion of the hearing
report to the general | 10 | | superintendent findings of fact and a recommendation as to | 11 | | whether or not the teacher or principal shall
be dismissed | 12 | | and shall give a copy of the report to both the
teacher or
| 13 | | principal and the general superintendent. The State Board | 14 | | of Education shall provide by rule the form of the hearing | 15 | | officer's report and recommendation. | 16 | | (7) The board, within 45
days of receipt of the | 17 | | hearing officer's findings of fact and recommendation,
| 18 | | shall make a decision as to whether the teacher or | 19 | | principal shall be dismissed
from its employ. The failure | 20 | | of the board to strictly adhere to the timeliness
| 21 | | contained herein shall not render it without jurisdiction | 22 | | to dismiss the
teacher
or principal. In the event that the | 23 | | board declines to dismiss the teacher or principal after | 24 | | review of a hearing officer's recommendation, the board | 25 | | shall set the amount of back pay and benefits to award the | 26 | | teacher or principal, which shall include offsets for |
| | | HB2801 | - 11 - | LRB102 14523 CMG 19876 b |
|
| 1 | | interim earnings and failure to mitigate losses. The board | 2 | | shall establish procedures for the teacher's or | 3 | | principal's submission of evidence to it regarding lost | 4 | | earnings, lost benefits, mitigation, and offsets. The | 5 | | decision
of the board is final unless reviewed in | 6 | | accordance with paragraph (8) of this subsection (a).
| 7 | | (8) The teacher may seek judicial review of the | 8 | | board's decision in accordance with the Administrative | 9 | | Review Law, which is specifically incorporated in this | 10 | | Section, except that the review must be initiated in the | 11 | | Illinois Appellate Court for the First District. In the | 12 | | event judicial review is instituted, any costs of | 13 | | preparing and
filing the record of proceedings shall be | 14 | | paid by the party instituting
the review. In the event the | 15 | | appellate court reverses a board decision to dismiss a | 16 | | teacher or principal and directs the board to pay the | 17 | | teacher or the principal back pay and benefits, the | 18 | | appellate court shall remand the matter to the board to | 19 | | issue an administrative decision as to the amount of back | 20 | | pay and benefits, which shall include a calculation of the | 21 | | lost earnings, lost benefits, mitigation, and offsets | 22 | | based on evidence submitted to the board in accordance | 23 | | with procedures established by the board.
| 24 | | (9) If the Governor has declared a disaster due to a | 25 | | public health emergency pursuant to Section 7 of the | 26 | | Illinois Emergency Management Act, except if the parties |
| | | HB2801 | - 12 - | LRB102 14523 CMG 19876 b |
|
| 1 | | mutually agree otherwise and the agreement is in writing, | 2 | | the requirements of this Section pertaining to prehearings | 3 | | and hearings are paused and do not begin to toll until the | 4 | | proclamation declaring the disaster is no longer in | 5 | | effect. If mutually agreed to and reduced in writing, the | 6 | | parties may proceed with the prehearing and hearing | 7 | | requirements of this Section connected to the appointment | 8 | | and selection of a hearing officer and those connected to | 9 | | commencing and concluding a hearing. Any hearing convened | 10 | | during a public health emergency pursuant to Section 7 of | 11 | | the Illinois Emergency Management Agency Act may be | 12 | | convened remotely. Any hearing officer for a hearing | 13 | | convened during a public health emergency pursuant to | 14 | | Section 7 of the Illinois Emergency Management Agency Act | 15 | | may voluntarily withdraw from the hearing and another | 16 | | hearing officer shall be selected or appointed pursuant to | 17 | | this Section. | 18 | | (b) Nothing in this Section affects the validity of | 19 | | removal for cause hearings
commenced prior to June 13, 2011 | 20 | | (the effective date of Public Act 97-8).
| 21 | | The changes made by Public Act 97-8 shall apply to | 22 | | dismissals instituted on or after September 1, 2011 or the | 23 | | effective date of Public Act 97-8, whichever is later. Any | 24 | | dismissal instituted prior to the effective date of these | 25 | | changes must be carried out in accordance with the | 26 | | requirements of this Section prior to amendment by Public Act |
| | | HB2801 | - 13 - | LRB102 14523 CMG 19876 b |
|
| 1 | | 97-8. | 2 | | (Source: P.A. 101-531, eff. 8-23-19; 101-643, eff. 6-18-20.)
|
|