Recent Court Decisions

The Illinois Appellate Court for the 2nd District (Court) considered an appeal from the Circuit Court of Lake County (Circuit Court) and affirmed the dismissal of a tenured teacher for sexual harassment of a student as irremediable conduct, denying the teacher’s complaint for administrative review seeking reinstatement.
 
Lance Pacernick (Plaintiff) began working for Waukegan CUSD No. 60 (District) during the 2002-03 school year as a teacher and served as head coach of the Waukegan High School girls’ track team from January 2014 through March 2017. In March 2017, a member of the girls’ track team reported that Plaintiff had touched some of the girls on the buttocks. The District promptly began a thorough investigation into the allegations, headed by the Title IX Coordinator. On the first day of the investigation, the District held a due process meeting with Plaintiff and his union representative and placed Plaintiff on paid administrative leave pending the investigation. A few weeks later a second due process meeting was held with Plaintiff and his union representative, during which Plaintiff was informed of, and denied, the allegations. Plaintiff then submitted a written statement denying the allegations, and he was provided with redacted statements from 48 current and former students interviewed during the investigation. Four students reported unwelcomed touching on their buttocks, seven reported receiving inappropriate verbal comments, 17 witnessed unwelcomed touching and/or comments to their teammates, and eight reported feeling discomfort or suspecting “other” intentions from Plaintiff. Five of these students were also in Plaintiff’s English class. On April 19, 2017, Plaintiff’s dismissal was recommended to the Superintendent, who approved the presentation to the Board of Education (Board). On April 21, 2017, a third due process meeting was held with Plaintiff where he was informed his dismissal would be recommended to the Board.
 
On May 9, 2017, the Board received a two-page Executive Summary of the allegations against Plaintiff and the investigation’s findings, as well as a three pages of Supporting Documents that included a factual timeline of the investigation, summary of a 2012 investigation, and summary of relevant Board policies. The Investigator recommended that the Board terminate Plaintiff for sexual harassment of female students and the Board unanimously approved the recommendation. On May 16, 2017, the Board gave Plaintiff a nine-page Notice of Charges with a Bill of Particulars, informing Plaintiff that the Board unanimously approved his dismissal. Notably, the Bill of Particulars related a May 2012 incident that had been unfounded but that had clearly put Plaintiff on notice that “care in [his] dealings with female students was necessary and that sexual misconduct of any nature with students is intolerable and a potential basis for discipline.” Despite this 2012 warning, Plaintiff did not change his behavior or exercise sufficient care. The Bill of Particulars also noted that Plaintiff’s continued denial of the allegations in the face of “voluminous accounts of inappropriate incidents” showed a lack of candor that “buttressed negative conclusions about [his] character and [his] conduct.” As a result, the Board concluded that Plaintiff’s conduct was irremediable, having a negative impact on the teaching profession and psychologically harmful to students.
 
Plaintiff chose to have a tenured teacher dismissal hearing, which began in December 2017 before an Illinois State Board of Education hearing officer and involved the testimony of 16 witnesses for the Board. Plaintiff did not put on a case. In an October 2018 decision, the hearing officer found that the Board had proven that Plaintiff engaged in the charged offenses and that these offenses were sufficient for dismissal under the School Code (105 ILCS 5/24-12(d)(1)). Regarding whether Plaintiff’s conduct was remediable, the hearing officer noted the test was whether: 1) damage was done to the students, faculty, or school, and 2) the conduct could have been corrected had the teacher been warned. The hearing officer found Plaintiff’s conduct had harmed both the students and school, and that Plaintiff’s conduct would likely not have been corrected if he had received a warning because he had already received a warning in 2012 about getting too close to students. Accordingly, the hearing officer recommended that Plaintiff be dismissed. On December 11, 2018, the Board adopted the hearing officer’s findings and dismissal recommendation, and it notified Plaintiff of this on December 12, 2018. Plaintiff sought administrative review of the Board’s decision, and on October 8, 2019, the Circuit Court affirmed the Board’s findings and its dismissal of Plaintiff. Plaintiff then appealed to the Circuit Court.
 
On appeal, Plaintiff argued that the Board erred in dismissing him because: 1) they erroneously found he had sexually harassed track team members and that his conduct was irremediable, and 2) the Board had not strictly complied with required procedures for dismissing a tenured teacher for cause because it never approved a motion with specific charges and did not timely mail to Plaintiff a Notice of Charges and Bill of Particulars.
 
The Court first reviewed whether the Board’s factual findings were against the manifest weight of the evidence, and whether those findings provided a sufficient basis for dismissal. Generally a Board’s decision is reviewed, but because the Board adopted the hearing officer’s decision, the Court reviewed the hearing officer’s decision to determine if it was erroneous. The School Code only allows a tenured teacher to be dismissed for cause. Though the School Code does not define “cause,” case law has defined it as “that which law and public policy deem as some substantial shortcoming which renders a teacher’s continued employment detrimental to discipline and effectiveness.” Thus, a school board has the power to dismiss a teacher for various reasons, including incompetency, cruelty, negligence, immorality or other sufficient cause. A school board must prove there is cause for dismissal by a preponderance of the evidence. After reviewing the hearing record, the Court determined that the Board’s conclusion that Plaintiff sexually harassed female students and that this was sufficient cause for dismissal was not erroneous. Moreover, the Court found that the Board correctly determined Plaintiff’s conduct violated its policies – most significantly its policy prohibiting sexual harassment.
 
Next, the Court considered whether Plaintiff’s conduct was irremediable. The Court used the same test for determining whether cause for dismissal is irremediable as the hearing officer had used: 1) whether damage has been done to students, faculty, or school, and 2) whether the conduct resulting in that damage could have been corrected had the teacher’s superiors warned the teacher. To meet the first prong, the Board had relied only on the students’ testimony about the damage that was done – and the Court found no error with the Board’s analysis. To meet the second prong, the Board had determined Plaintiff was unlikely to fix his behavior because had had already been warned in 2012 – and the Court found no error with this analysis either. The Court succinctly stated “the harm Plaintiff caused here by his demeaning treatment of the students who were entrusted to his care cannot be undone or corrected.”
 
Third, the Court considered Plaintiff’s argument that the Board hadn’t strictly complied with required procedures. Section 24-12(d)(1) of the School Code requires that a board seeking dismissal of a tenured teacher “first approve a motion containing specific charges” and then provide the teacher with “written notice of such charges, including a bill of particulars” by mail and also by certified mail or personal delivery within five days of adoption of the motion. Plaintiff claimed the Board’s Executive Summary wasn’t a “motion” with “specific charges” because it described his conduct as sexual harassment but didn’t provide context, so it was an incomplete and misleading presentation to the Board. The Court disagreed, finding that both the two-page Executive Summary and three pages of Supporting Documents, despite their titles, reasonably apprised Plaintiff of the allegations against him as required by the School Code. As for the five-day timeline, the Court found that strict compliance was not necessary here, where there was only a one-day delay and the delay didn’t cause prejudice to Plaintiff because he was able to have a hearing and was represented by counsel. The Court affirmed the Circuit Court’s decision upholding the Board’s dismissal of Plaintiff.
 

The Illinois Appellate Court for the 4th District (Court) considered an interlocutory appeal from the Circuit Court of Sangamon County (Circuit Court) and determined that the 1-year statute of limitations period in the Local Government and Governmental Employee Tort Immunity Act (Tort Immunity Act) does not control over the limitations period set out in the Childhood Sexual Abuse Act, which expressly states that its terms apply “notwithstanding any other provision of law.”
 
In April 2019, Plaintiff Michelle Forbes (Plaintiff) filed a complaint against Defendants New Berlin Community Unit School District No. 16 (the District) and Carroll Owen Smith (Smith) seeking damages based on alleged childhood sexual abuse directly and proximately caused by Defendants. Plaintiff alleged counts of willful and wrongful conduct, negligence, negligent failure to follow established policies and procedures, breach of fiduciary duty, and intentional infliction of emotional distress against the District. Plaintiff also alleged counts of assault and battery and intentional infliction of emotional distress against Smith. These counts are based on allegations that between 1985 and 1989, when Plaintiff was a high school student, Smith recruited her to help him with paperwork while the two were alone in his office. While in his office, Smith allegedly then engaged in acts of sexual grooming and sexual abuse against Plaintiff. Plaintiff claimed that she suffered personal, pecuniary, and emotional injuries as a result, but that she did not discover the causal connection of her injuries until 2015, when she was 44 years old.
 
The District responded by filing a motion to dismiss, arguing that Plaintiff’s claims were time-barred by the Tort Immunity Act’s 1-year statute of limitations. Plaintiff argued that her case was not time-barred because the Childhood Sexual Abuse Act applied, and she filed her case within 20 years after her action accrued. The Circuit Court denied the District’s motion to dismiss, and the District then asked the Circuit Court to either reconsider its ruling or, in the alternative, certify the following question for appeal:

“Does the 1-year statute of limitations period in the Local Government and Governmental Employee Tort Immunity Act, 745 ILCS 10/8-101, control over the limitations period set out in the current version of the Childhood Sexual Abuse Act, 735 ILCS 5/13[-]202.2 (effective January 1, 2014), which by its express terms applies ‘[n]otwithstanding any other provision of law’?”
 
The Circuit Court declined to reconsider its ruling but did certify the question for appeal.
 
On appeal, the Court reviewed the limitations periods in both acts. The Tort Immunity Act, which shields local public entities from liability arising from the operation of government, provides that no civil action may be commenced in any court against a local entity or any of its employees for any injury unless it is commenced within one year from the date that the injury was received or the cause of action accrued. In contrast the Childhood Sexual Abuse Act, which governs civil actions for sexual abuse of a person under 18 years of age, provides:
 
(b) Notwithstanding any other provision of law, an action for damages for personal injury based on childhood sexual abuse must be commenced within 20 years of the date the limitation period begins to run…or within 20 years of the date the person abused discovers or through the use of reasonable diligence should discover both (i) that the act of childhood sexual abuse occurred and (ii) that the injury was caused by the childhood sexual abuse.
 
Looking to the plain language of these acts, the Court held that the language of the Childhood Sexual Abuse Act clearly applies to claims based upon childhood sexual abuse, despite any other statute of limitations, due to the phrase “notwithstanding any other provision of law.” The Court’s decision is consistent with the decision reached by the Second District Appellate Court in Doe v. Hinsdale Township High School Dist. 86, 388 Ill.App.3d 995 (2nd Dist. 2009), a case that also involved personal injury based on alleged childhood sexual abuse proximately caused by a defendant school district and its employees.
 
 

The Cook County Assessor’s Office (Assessor) violated Section 3(d) of FOIA by failing to respond to a FOIA request.
 
On September 29, 2020, Requestor submitted a FOIA request to the Assessor, seeking information regarding who had filed for a division of an identified property and a copy of the recent application related to the property, which Requestor identified by its Property Index Number. Requestor did not receive a response to his request.
 
On October 21, 2020, Requestor submitted a Request for Review to the PAC, alleging the Assessor failed to respond to his FOIA request. The PAC then wrote to the Assessor regarding this matter, but the Assessor did not respond. After multiple communication attempts by the PAC, on December 15, 2020, the Assessor finally responded to the PAC via a voicemail stating that the Assessor was preparing its response to the FOIA request and anticipated the response would issue within 10 days. As of December 30, 2020, the PAC had not received a written response from the Assessor and Requestor had not received a response to his FOIA request.
 
Section 3(d) of FOIA states that “each public body shall, promptly, either comply with or deny a request for public records within 5 business days after its receipt of the request…” Because the Assessor did not comply with Section 3(d), the PAC ordered the Assessor to take immediate and appropriate action to provide Requestor with all records responsive to his request, subject only to permissible redactions.
 
This opinion is binding only to the parties involved and may be appealed pursuant to State law.

The PAC held that the Ogle County Sheriff’s Office (Sheriff) violated FOIA by improperly withholding a police report involving the alleged sexual assault of a named minor.
 
On September 1, 2020, Lawyer submitted a FOIA request to the Sheriff seeking a copy of a July 2013 police report involving the alleged sexual assault of a named minor. In the request, Lawyer indicated the report was for his client, the father of the named minor, for a civil matter. Two days later, the Sheriff denied the FOIA request in its entirety based on Section 7(1)(a) of FOIA (which exempts the disclosure of information specifically prohibited from disclosure by federal or State law), simply stating it could not disclose juvenile reports. Lawyer then asked the PAC to review.
 
The PAC construed the Sheriff’s denial under Section 7(1)(a) as asserting that the Juvenile Court Act (JCA) prohibited disclosure of the police report. On September 15, 2020 the PAC, in a non-binding determination letter, informed the Sheriff that the JCA did not prohibit disclosure of records concerning crimes committed by adults against minors, and it asked the Sheriff if it would change its position on the disclosure. The Sheriff did not respond. Next, the PAC asked the Sheriff to provide it with copies of the withheld police report, along with a detailed explanation of the factual and legal bases for its assertion that Section 7(1)(a) of FOIA allowed it to withhold the police report. This time the Sheriff replied to the PAC, and it eventually provided a copy of the police report to the PAC.
 
On review, the PAC noted that the Sheriff did not provide any arguments or legal authority in support of the supposed Section 7(1)(a) exemption. Instead, the Sheriff simply asserted that “the police report in question…is entirely juvenile related” and because the report “pertains to the questioning of the juvenile and what happened to him” they were prohibited from disclosing it. The PAC noted that the Illinois Appellate Court requires a public body to provide a detailed rationale to satisfy its burden of demonstrating that records are exempt under FOIA, yet here the Sheriff’s response was “generalized and conclusory” – so the Sheriff did not meet its burden.
 
Even so, the PAC evaluated for itself whether the police report could be withheld under Section 7.5(bb) of FOIA, which expressly exempts from disclosure “information which is or was prohibited from disclosure by the Juvenile Court Act.” Looking to the JCA, the PAC noted that Section 1-7A of the JAC states that juvenile law enforcement records may be accessed by the minor who is the subject of investigation, arrest, or custodial detention along with the minor’s parents and any of their legal representatives. Moreover, Section 1-3(8.2) of the JCA defines “juvenile law enforcement record” as those relating to a minor suspected of committing an offense – not those where the minor is a victim, witness, or missing juvenile. Since the police report at issue involved a minor as a victim, the PAC found the JCA does not apply and therefore Section 7.5(bb) of FOIA does not exempt the report from disclosure. The PAC held that the Sheriff’s Office violated FOIA and directed the immediate disclosure of the police report to Lawyer. 
 
This opinion is binding only to the parties involved and may be appealed pursuant to State law.

The PAC held that the Board of Trustees (Board) of the Village of Roanoke violated OMA during a remotely held meeting on September 8, 2020 when it muted a discussion of public business.
 
On September 8, 2020, the Board held a remote meeting via Zoom. Two days later, a member of the public submitted a Request for Review with the PAC, asserting that the Board President had asked another Board member to mute all microphones during a discussion with the Roanoke Village Ambulance Chief and that at this time, the Board did not announce it was entering closed session or otherwise provide an explanation for why all microphones were muted.
 
The PAC construed this as an allegation that the Board violated Sections 2(a) and 7(e)(4) of OMA. Section 2(a) of OMA requires that all meetings of public bodies be open to the public unless a specific exception applies. Section 7(e) of OMA permits public bodies to hold a remote meeting during a public health emergency (such as the current COVID-19 pandemic), and Section 7(e)(4) requires that when such a remote meeting is held, the public body must “allow any interested member of the public access to contemporaneously hear all discussion, testimony, and roll call votes, such as by offering a telephone number or web-based link.”
 
The PAC requested that the Board explain how the public was allowed to connect to the September 8, 2020 remote meeting, and to provide copies of the agenda, minutes, and verbatim recording of it. The Board responded that it complied with Section 7(e) of OMA by livestreaming the meeting on Zoom, which allowed for public attendance and participation, but acknowledged that the meeting livestream was muted for approximately one minute. The Board explained that this one minute was essentially a “sidebar” between the Mayor and Village Clerk regarding the appropriateness of discussing a personnel matter in open session or closed session. The Board asserted this one minute “sidebar” did not violate Section 7(e) because it “is not uncommon for sidebars to occur during a public meeting to clarify a matter of procedure” but assured the PAC that it would not mute any future sidebars. 
 
The PAC concluded that Section 7(e)(4) “expressly and unambiguously requires that members of the public be able to contemporaneously hear all open session discussion” and it does not provide an exception for a “sidebar.” The PAC held that because members of the public could not contemporaneously hear the one minute muted discussion, the Board violated Section 7(e)(4) of OMA. To remedy this violation, the PAC directed the Board to make publicly available the complete verbatim record of the open session portion of the September 8, 2020 meeting.  
 
This opinion is binding only to the parties involved and may be appealed pursuant to State law.