On January 8, 2020, the Illinois Appellate Court determined that the Board of Education of Ottawa Township High School No. 140 improperly dismissed a tenured teacher.

In 2015, the Board fired Tim Burgess after what it deemed to be unprofessional and insubordinate conduct on three occasions during the fall of the 2014-2015 school year. At the time, Burgess had been employed at OTHS for 26 years and had received excellent ratings on each of his previous four evaluations.

Burgess previously received three disciplinary warnings, in 1993, 2002, and 2003, for disputes with colleagues and a confrontation with a parent. In 2009, the Board issued Burgess a notice to remedy after he verbally berated Board members, calling them “phony,” and “a bunch of lying filthy cheaters,” following the Board’s vote rejecting Burgess’s request for a tuition waiver for his daughter so that she could attend OTHS tuition-free. The notice of remedy directed Burgess to cease any further displays of anger in front of staff, parents, students, and members of the Board and cease referring to such individuals in an inappropriate or unprofessional manner.

Fast-forward to September 2014, where Burgess moved for a vote of no-confidence in then-Superintendent Matt Winchester during a union meeting at the high school. Other union members disagreed and expressed their displeasure, and words were exchanged between Burgess and his fellow union members Marx, Cartwright, and Doerrer. According to those members’ accounts, Burgess held a file folder and said that he “ought to slap Cartwright upside the head.”

In November 2014, the union held another meeting on the no-confidence vote, and words were again exchanged between Burgess and Doerrer. Doerrer alleged that Burgess made a comment that Doerrer was “all over underage girls.” Doerrer filed a written complaint, and in December 2014, Winchester convened an investigatory meeting. Burgess received only 7-8 minutes notice of the meeting, and was not given any information regarding the meeting’s subject matter. The Board’s attorney was present at the meeting, and while Burgess did attend with his union representative, his request for the presence of a UniServ Director and his own attorney were denied. Despite the fact that Doerrer’s complaint was specific to Burgess’s conduct at the November 2014 union meeting, the administration asked Burgess questions about incidents throughout the 2014-2015 school year. Burgess denied making the comment to Cartwright in September. Winchester concluded that Burgess was evasive and did not honestly answer his questions. At the end of the meeting, Burgess was placed on paid leave while the investigation continued.

In January 2015, the Board authorized Burgess’s dismissal, and Burgess requested a hearing. Following a three day hearing, the Hearing Officer recommended reversal of the Board’s decision, finding that the evidence was insufficient to conclude that Burgess made the comment about slapping Cartwright, and that it was unreasonable to credit the testimony of Cartwright, Marx, and Doerrer over Burgess due to the long-standing disagreement over union business. The Hearing Officer further found the evidence insufficient to support the Board’s conclusion that Burgess was dishonest at the December 2014 investigatory meeting.

The Board rejected the Hearing Officer’s recommendation and dismissed Burgess. Burgess filed a lawsuit for review of the Board’s decision with a state trial court. The trial court upheld his dismissal.

On appeal, the Illinois Appellate Court performed an exhaustive analysis of the facts and found that the Board created a hierarchy to the credibility of witnesses, giving more credence to its own witnesses than to Burgess’s. With respect to Burgess’s challenge to the Board’s dismissal decision, the Court found that the decision was clearly erroneous and that Burgess’s conduct did not violate the notice to remedy in a clear and material way. In so finding, the Court placed significant weight on the context of Burgess’s conduct. Specifically, the Court noted that Burgess’s conduct occurred in a private context—at two separate, closed-door union meetings—and thus was not the type of conduct that led to the notice to remedy. Even though the meetings took place on the OTHS campus, there was no logical connection between Burgess’s conduct and his fitness to perform as a teacher. The same was true for the investigatory meeting, which the Court found was sprung on Burgess, but more importantly, asked questions about alleged conduct at private union meetings. The Court determined that the Board’s decision was arbitrary, unreasonable, and unrelated to the requirements of service, and therefore reversed Burgess’s dismissal.

This case serves as a cautionary tale, highlighting how fact-specific determinations of irremediable conduct can be.  School districts carefully examine the facts and whether the teacher’s conduct is truly related to the requirements of his or her job. In addition, if collective bargaining agreements are silent on this point, best practice dictates that administrators provide an employee at least 48 hours’ notice prior to convening an investigatory conference. Employees should also be allowed the representative of his or her choice, provided that the request is not unreasonable or a dilatory tactic.