good morning may it please the court i'm thomas doyle for the board of education in the city of chicago as this case has been briefed it is largely a pure legal issue the the facts are largely not in dispute that is there is no manifest weight of the evidence argument and there is no evidence are there is no argument about whether the evidence suggests that a ninety day suspension was a proportional response here instead this case focuses on the power of a school board in these circumstances and the briefing has developed there are two closely related questions the  question is when a school board initiate a teacher dismissal proceeding does the school board retain the ability to suspend the teacher in lieu of dismissal the nd related question is if a school board suspends a teacher can the school board issue that suspension on a time served basis in the same order in which it reinstates the teacher with back pay let me look at st question st if i could the question about whether or school board retains the ability to issue a suspension when teacher dismissal proceedings begin the opposition brief seems to agree with us on that position that at least on a going forward basis a school board does have authority to issue a suspension in other words a school board could have said you may return to work and serve a ninety day suspension and then begin teaching again i say that because it page nineteen of the opposition brief they talk about three thousand four hundred and eighty five dollars the section that's at issue here does not limit a school board's general ability to issue a on the dismissal proceeding do not necessarily limit the board's ability to suspend or the circumstances in which the board may suspend that this is more than a statutory interpretation it is if i entire procedure for that there is a hearing officer appointed and the parties go through the pre hearing process and a hearing happens in the hearing officer offers a finding of fact and offers recommendations on whether the teacher should be grounds it's not required john or and the reason it's not required is because we always have that power we would have that power if we had never begun a three thousand four hundred and eighty five proceeding so the initial charging document does not have to tee up suspension as a possible remedy the two of them are different sources of authority under the school code now that makes sense given one of the other things that we know on this record the board did other things other than just suspend or dismiss for example there is a warning resolution that happens in october th decision there is a remediation requirement that happens in the the only thing a school board may do the appellate court suggests is either dismiss or reinstate with full back pay that is inconsistent with what happened here that is inconsistent with what the parties seem to agree at least as to the warning resolution and the remediation into the ability suspend going forward the appellate court read the statute wrong when it came to the conclusion that this was an all or nothing or a binary choice proposition as soon as the ready for eighty dollars begins there's a sensible reason to do it this way also if school boards were boxed into an all or nothing kind of procedure they would end up over prosecuting some cases and under prosecuting others if there is a range of responses available to a school board justice can be done better at the agency level instead of if the agency is boxed only into  reinstate with full back pay your honors that st question the pure legal question does the board retain the ability to issue a suspension it seems to me on this record can clearly be answered yes the board does have that ability the nd question is can that suspension occur in the same order that reinstates a teacher with back pay and the sentence or the suspension be fashioned on time served basis that question i believe also is yes a board does have the ability to issue a retroactive or time serve suspension this court recognized in lake county that an agency may carry out t words the board reinstates the teacher with back pay satisfies the must requirement under three thousand four hundred and eighty five dollars that is the centerpiece to the opposition brief satisfies that and then imposes an for that improper post hoc rationalization don't say that department central management services and motor vehicle both dealt with situations where the agency offered nothing they offered no explanation of the facts they offered no explanation of the circumstances and then on appeal the lawyers trying to defend the agency came up with a brand new explanation that's very different than what happened here in department of central management services the court  district sent the case back so that the agency kirchick you later basis the court into central management services did not hold that the agency action was per se improper the court said we needed a record on that's for sure however the facts and circumstances are there and when this court reviews an agency decision this court is not bound by the agency's specific explanation for what it is that it did and the time served piece makes sense because it lets everyone move on faster otherwise the teacher would have to go through an entire new perceiving that would involve essentially all of the same kinds of stuff in whatever format was required to justify a suspension and then would end up in the exact same net position why not do it all in the same order late county says that's proper and there isn't anything unfair  back pay is less mitigation and offsets and it does not identify an exhaustive list of what an offset could be your arms in this situation an offset could clearly include dollars the hearing officers appointed her thirty four eighty five dollars and they're making a recommendation on the findings and they're making a recommendation of what the remedy ought to be whether it's dismissal or not under three thousand and forty five dollars there isn't a role for hearing officer it would be permissible i don't think there's anything wrong with it on its face it isn't required and it would be odd if it did happen in the charging document your honor the thumb yeah let's talk for a moment about what that must that must language means when it talks of when three thousand and forty five dollars talks about reinstating the teacher with back pay that is the reinstate the teacher with back pay to make them whole for any lost earnings during the pre hearing suspension the that section in which it appears talks about how a school board pending dismissal charges may suspend a teacher for the interim at the end the hearing of the the school board reinstates for lost earnings in other words the pre hearing suspension does not cost the teacher earnings we took care of that here we reinstated with back pay and then after that imposed the suspension as an offset the fact that the teacher was suspended for the school board your arse there's nothing unfair about what happened here the ninety days suspension was proportional the record seems to reflect that and there isn't an argument to the contrary in this in circumstances like this school boards need to be able to ensure student safety they have an important charge in order to do that school boards need flexibility and they need the ability to respond where the evidence and the facts takes them the all or nothing approach suggested by the appellate court is not consistent with the statute and it's not consistent with this court's precedents for these reasons if you if there are any other questions i'm happy to discuss but for these reasons we believe that this court should reverse the appellate court's decision send the case back so the few october th decision can be reinstated thanks to your honor after reading the hearing officers recommendation on dismissal the chicago board of education admitted its error in seeking dismissal it reversed itself and declined to dismiss miss moore so the school board make only act within the powers that are conferred to it by the legislature and the statute is clear upon initiating dismissal proceedings if the school board chooses to suspend a teacher without pay and ultimately does not dismiss that teacher the teacher must be made whole for the suspension if the legislature had intended to allow the school board another option decision recognized the school board's right to suspend  recognize the school boards its derivative right to impose suspensions incident to the school board's power to enforce its work rules that right is not derived from the right to discharge but it is derived instead from the right to enforce of youth already to enforce its rules and regulations in spinelli this court found that right rose under section ten dash twenty of the school code which applies outside of chicago the board relies on the equivalent article thirty four provision three thousand four hundred and eighteen giving it authority to general management authority over the school district but th eighteen as a critical qualifying language within it that the school board may only exercise these powers quote not inconsistent with the other provisions of this article or provisions of this code which apply to all school districts in other words it cannot exercise its derivative power and authority for eighteen to suspend if it's inconsistent with other provisions in article thirty four applying to the chicago schools or other provisions of the school coach generally that apply to all school districts that qualifiers important because after the spinelli decision the school code was amended and those amendments were very significant in two directly addressing suspensions but one exists today and the board the school board is seeking to apply the derivative right under its general of the forty to manage the schools to override now and express specifically under three thousand four hundred and eighty five which controls dismissal of teachers it went down that road and as this court's prior questions indicated it stayed down this road the entire time it nevers it never dismissals and the i hesitate because under the school code that right of suspension exists while it's not part of this case the chicago public schools in the chicago teachers union have negotiated a labor contract and in that labor contract they have provided the disciplinary suspensions are not allowed the parties mutually agreed that disciplinary suspensions were counterproductive to remove a teacher from the school for conduct that doesn't justify two in the nation and so under the labor contract the teacher is issued a final warning in lieu of suspension as the penultimate disciplinary step before terminations so while the school code itself does not prevent the board from suspensions as part of its managerial authority the labor contract does bear on that but what the school board is attempting to do in this case is they are attempting to exercise both rights simultaneously counsel for the school board says it has the right to exercise both both rights simultaneously the problem here is that the exercise of one right undermines the clear nd right and while it asse convert that to a discipline it's simply not possible to do both at the same time subsection eight to is very clear the teacher must be made whole you cannot make a teacher very clear as to what the set off can be on the make whole order in subsection a seven it's that it provides that the set off can include offsets for interim earnings and failure to mitigate losses that mean failure to seek other employment during the term of the suspension it makes absolutely no allowance for set off for separate disciplinary purposes again if the legislature wanted it mended the code had intended to allow the school board when it exercises that right under eight to to suspend without pay if the legislature had intended to allow the legislature to provide other offsets it would have provided the would have said teacher without pay but the school board had other options here it didn't have to suspend this more without pay it could have for example they could have chosen to issue her it warning resolution which in fact the board school board ultimately didn't scase it could of elected to suspend her with pay or it could have elected to simply not suspend her while it pursued dismissal proceedings it didn't it is not stuck with a binary choice as the school board suggest really with the school board comes to this court claiming because it has no legal right three hundred and forty eight thousand five hundred and eighty two it's crystal clear as to what the obligations on the school board are it really comes with an equitable argument and it's arguing from the right to terminate the right to suspend is derived elsewhere from the journal managerial authority but it complains to this court that it faces an all or nothing choice when it seeks to terminate a teacher really what it's argument ultimately boils down to is its own error in seeking terminations should not be held against him that it must be allowed to retroactively at the end of the dismissal process start all over again and decide to impose a suspension but again the board had choices how it would proceed in the snow or you could have issued the warning resolution it could have avoided the suspension or it could have suspended with the board is asking the tenured teacher to pay for its error in seeking dismissal and the fact requires the teacher to defend herself twice under the board's interpretation of the the teacher must defend herself through a full dismissal hearing in the st instance when the board goes back and decides oh we're going to convert that to a suspension and she has to defend herself again for separate action on suspension but the amendments that were placed into the code in two thousand and eleven by the school board in the two thousand nine hundred and eleven amendments the only school code was substantially revised it was revised chiefly regarding it value ation of teachers and it seems that the board would have to decide how to proceed these but the remedy without actually hearing the facts here sorry i don't follow just as well if if if they decide to proceed under their town management decision for suspension before they hear on the facts or they have to proceed under the section that's pressing us right now based on terminations but they haven't heard all the exist you are correct that there would have be there would be no hearing if the board simply issued a suspension again the school board contract the school board has agreed with the with the union that should not be used and the labor contract provides alternative forms of discipline but it does not it's the school board's decision to suspend without pay before it knows the facts that's what it's doing under three hundred and forty eight thousand five hundred and eighty two dollars it is simply saying this chargers is so serious that this teacher must be removed from the classroom and denied any paid while we go about the process of determining the facts in this case and determining whether the charges are true and whether they warrant terminations it doesn't have in this situation it doesn't have to suspend the teacher it has many options to handle that situation now how does it decide if it wants to simply suspended teacher again the labor the school board has negotiated that right away with them with the union but because based on the decision the mutual decisions that suspensions aren't appropriate but if it is school board under the school code alone the school board could conduct its own investigation and it could issue its own discipline just as it does on other matters other lesser  disciplines it issues warning letters to teachers all the time those don't require a full hearing they simply act now the teacher has a right to challenge all those lesser forms of discipline through the collective bargaining process  through the parties agreement and resolve them but this is that the board is doing here is it is suspending the teacher before the facts are known before the case has been litigated before the hearing officer has weighed in on what the facts it is ultimately the board's decision what to do but the legislature clearly saw in this situation with the board see extermination to balance the rights of the teacher balance the right with the school board and it expressly prieta the right that didn't expressly exist before that when the board is seeking terminations before the hearing before the adjudication before determining whether the teacher actually committed those on that conduct and whether it justifies terminations it can suspend the teacher while this matter is he is is proceeding that's a new right created in the act but if it does t board comes before the court asking what kind do when the conduct is wrong but not enough for terminations as though it has no choices but ultimately all of these decisions are the school boards the board decides whether to terminate or not the board simply has to show more care in making its decision whether to seek this dismissal and whether it's going to during that process suspend the teacher without pay if the board is allowed as it seeks to do is here to go through the entire process can dismissal and then just substitute at the end go back and say oh we're going to call that a suspension instead there is no check on the board pursuing terminations in every charge infraction and suspending the teacher without pay forcing the teacher through a full dismissal hearing process and then at the end of the process going back saying oh change their mind it's a suspension that's not the process that the legislature has established it is not a fair balance that the legislature established in two thousand and eleven between the rights of the tenured teacher and the rights of the school board as this court was previously questioning the  court found and properly so that the school board had engaged in improper ad hoc decision making it claims before this court now that it is it also have no right to after the fact provide a postcard justification to this court thank you we heard just now about a labor agreement it isn't in the briefs it wasn't in the appellate court it wasn't argued we don't have it on this record on not able to respond in detail about what that labor agreement provision does or doesn't provide to shed light on this case it really is not part of this appeal separately your honor we also heard that spinelli is separate the two are separate powers that the board holds he mentions along the way that the board could have suspended in a time that's correct the board could have suspended any time including at the end offsets under section a seven section a seven does not contain an exhaustive limit of what the offsets might be and we can think of in numerable situations that could be an offset that would be entirely proper that no one would would have an issue with that are not included there separately your honor he mentions that the provision says not inconsistent with other provisions your are the dismissal procedures offsets there is a way to reconcile and under this court's precedent if there is a way to reconcile to set a tory provisions this court should take it in your honor there is a way that makes sense here of what it is that happened separately your honor your honors my my colleague says that this is softness story to say that we are exercising two powers at the same time the flipside of that your hon is that we would be looking at having to start an entire additional proceeding there is no sense in that if we have the ability to suspended any time why not do it all in the same order and let everyone move on just as gets done simply and directly in a way that doesn't prejudice anyone because the board could have started a suspension proceeding at the very end of  proceeding and drug everyone through that it doesn't make any sense to say question your client argues that you're under your theory that the teacher is not made whole you have to be awa appears costing the teacher money in other words the fact that the teacher was suspended during the pendency of the dismissal proceeding did not cost her any money instead what cost her money is the suspension that the board imposed she was made whole when she got a back pay award and then we had a deduction on top of that and the made a whole relates to impose a warning resolution or remediation steps as a condition of further employment in this case there is no question the board has the power to suspend the only question is whether the board may impose that suspension on a retroactive time served basis as part of the same order justice suggests that the board ought to be able to pursue its mandate that mandate is to guarantee student safety the student safety issues here are not in dispute and they're important secondly let me mention briefly the ad hoc suggestion that this is somehow unfair to articulate a basis now that october th the seizure articulated the basis for the board's decision to suspend ms moore it articulated in some depth in articulated it in the context of here's why we're not dismissing because a suspension makes more sense there is no showing up for the st time on appeal and offering an explanation and that was a problem in the central management services case that was the problem in the motor vehicle case in the us supreme court in your honour's there was nothing improper about the way the board imposed the suspension here and boards need flexibility in order to respond to  reinstated in full thank you