The Board alleges that the procedural due process claim fails because Bogacz did not have
a valid contract since the Board did not “legally” approve it at the March 20, 2003 meeting. At the
March 20, 2003 meeting, four of the seven board members were present. As to Bogacz’s contract,
two board members voted “yea” to approve it; and two board members abstained from voting. A
majority of present board members’ votes is needed to approve a contract.

Defendant contends that Bogacz’s contract was never approved by the Board because the
affirmative yote of the majority was required, and the two “yea” votes does not constitute a majority
vote.

The {aw presumes that public officials have performed their duties properly and that one who
contends to the contrary has a difficult burden of proof. See Compton v. School Directors of Dist.
No. 14, 8 Ill. App. 2d 243 (1955). Section 10-12 of the Illinois School Code, applicable to the
present case, provides:

A majority of the full membership of the board of education shall
constitute a quorum, Unless otherwise provided, when a vote is taken

upon any measure before the board, a quorum being present, a

majority of the votes of the members voting on the measure shall

determine the outcome thereof.

105 ILCS 5/10-12. The Illinois School Code further provides for principals’ contracts that “the
affirmative vote of a majority of the votes of full membership then serving the local school council
shall determine the outcome thereof.” 105 ILCS 5/34-2.2.

Here, two of the four board members that were present voted “yea” as to Bogacz’s contract.
The other two Board members abstained. The abstentions are not considered a vote but, rather, a

failure to vdte. See County of Kankakee v. Anthony, 304 Il. App. 3d 1040, 1046-47 (1999); see also

Lake County Forest Preserve v. Northern Trust Bank/Lake Forest, 207 I. App.3d 290, 294-295



Lastly, the Board argues that Bogacz’s Motion for Injunctive Relief should be denied. This

argument is premature and is denied.
|

For the foregoing reasons, the Board’s Motion to Dismiss is denied.

Dated: leu ut JE, 200%
O

hom. DARRAIL
United States District Judge



Bognez alleges subject matter jurisdiction based on her procedural duc process claim
pursuant to her contract with the Board.

In arder to state a claim for a procedural due process violation that is based upon a
deprivation |of a property interest, the plaintiff must allege that (1) she has a protected [property]
interest, (2) that she was deprived of that protected property interest without due process of law, and
(3) that the leprivation of that interest was caused by state officials acting under the color of law.
Alexander y. Bd. of Educ. of Indian Prairie Sch. Dist. No, 204, 1998 WL 699020 *3 (N.D. IIL.)
(Alexander).

A public employee whose term of employment is established by a contract has a protectable
property interest in the performance of that contract according to its terms. Head v. Chicago Sch.
Reform Bd. of Trustees, 225 F.3d 794 (7th Cir, 2000) (Head). A plaintiff asserting a procedural due
process claim must have a legitimate claim of entitlement to continued employment in order to
establish a property interest in continued employment. Kiser v. Naperville Community Unit, 227 F.
Supp. 2d 954, 968 (N.D. Ill. 2002). 1fan employment contract is deemed to be void under Illinois
law, then the contract has not created any property interest to which the protections of the 14"

Amendment would otherwise attach. Grassinni, 279 Ill.App.3d at 621, Failing to adhere to such
i

a void emplpyment contract does not deprive the employee of a property interest in the contract in
violation of her due process rights. Grassinni, 279 Ill_App.3d at 621, Accordingly, in order to show
that Bogacz|s position as a principal ofa school, created by an employment contract, is a protected

property interest, the employment contract must be valid and legally binding upon the parties. See

Alexander, 1998 WL 699020 at *3.



(1990); Prosser y. Village of Fox Lake, 91 Ill.2d 389, 393 (1982). Accordingly, the majority of the
members voting voted “yea”; and Bogacz’s contract was passed by the “majority of the members
voting”.

The Board also argues that the contract is invalid because the previous Board is not allowed
to award vont that extend beyond the terms of the then-current board members.

In gengral, when any governmental board “appoints an officer or contracts for services, and

1

the duties of the officer or the services to be rendered are duties to be delegated to the supervisor of
the board, su¢h appointment of contract for a period beyond the term of the board in not valid.”
Cannizzo v. Berwyn Township 708 Community Mental Health Bd., 318 W.App.3d 478, 484 (2000)
(Cannizzo) citing Miki v. Edgar County, 142 Ill. 528 (1892), and Grassinni v. Dupage Township,
279 Ti.App.3d 614 (1996) (Grassinni). The general rule against “beyond-term” employment
contracts applies to contracts made by school boards, and such contracts are decmed void if they
extend past t le term of the present school board. Trombetta v. Bd. of Edu., Proviso Township High

School Dist, No. 209, 2003 WL 1193337 *3 (N.D. lll.) (Trombetta). A school board is said to have

acted ultra vires when it awards such a contract that extends beyond the terms of the then-current

board members. Trombetta, 2003 WL 1193337 at *3.

However, an exception to this general rule exists and applies to school principals and
superintendents, who the school board may enter into performance contracts with for up to five
years. Tro. | etta, 2003 WL 1193337 at *2; 105 ILCS 5/10-23.8 & 10-23.8a. Specifically, “school
districts "le school administrators may only employ principals and other school administrators

under eithcy a contract for a period not to exceed one year or a performance-based contract for a

period not to exceed 5 years.” 105 ILCS 5/10-23.8a.



2

Minute ier Forma (08497)

United States District Court, Northern District of Mlinois

Name of Assigned uae John W. Darrah Sitting Judge if Ocher
or Mugistrate Jud; than Assigned Judge
CASE NUMBER 03 C 4548 DATE 8/28/2003
CASE LORI BOGACZ vs. BOARD OF EDUCATION
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (h) state briefly the nature
MOTION: of the motion being presented]
DOCKET ENTRY: |
ql) a Filed motion of [ use listing in “Motion” box above.]
(2) Qo Bri¢f in support of motion due
(3) o Answer brief to motion due. » Reply to answer brief due.
(4) o Ruling/Hearing on | .___sct for at
(5) o Status hearing[held/continued to] [set for/re-set for] on set for at
(6) o Prefrial conference[held/continued to] [set for/re-set for] on sct for at
(7) o Tridl[set for/re-set for] on __ at
(8) Qo [BehelyJury trial} [Hearing] held/continued to at
(9) Oo Thig case is dismissed [with/without] prejudice and without costs[by/agreemenl/pursuant to]
OORRCP4(m) OLocal Rule 41,1 OOFRCP41(a)(1) Cl FRCP41(a)(2).
qo ther docket entry] Status hearing held. Hearing is set for 9/9/03 at 1:00 p.m. on whether
permanent] injunction should issue. Enter Memorandum Opinion And Order. The Board’s motion to
dismiss is denied.
(il) ff [Fok further detail see order attached to the original minute order.]
No notices require, udvised in open court
No notices require number of natices
Notices mailed by judge's staff. KUG 29 2003
Notified counsel by telephone. ae dookered
ow | Docketing to mail hoticcs. d
Mail AO 450 fori, «ith Muy ais
Copy to judge/magistrate judge.
datelpied notice
courtroom
LG | | deputy’s “yh
initials en
 Datte/time received in
central Clerk's Office mailing deputy iis



At tite March 20, 2003 meeting, the present board members approved a two-year
performance-based contract for Bogacz, included as Exhibit A in Bogacz’s complaint, which was
executed on March 28, 2003. Therefore, since the approved principal contract was performance-
based and fot less than five years, the previous Board had the authority to enter into such a contract
with Bogacz| Furthermore, unlike the type of contracts at issue in Cannizzo and Grassinni, the
contract entefed into by Bogacz and the Board involves a school principal contract that falls within
the scope of and complies with Sections ]0-23.8 and 10-23.8a of the Illinois School Code. 105 ILCS
5/10-23.8 & 10-23.8a. Accordingly, Bogacz’s contract is not void.

The Board also argues that Bogacz fails to state a procedural due process claim because
Bogaez did jnot have a property interest in continued employment because she did not have a
legitimate “em of entitlement to continued employment, particularly at a specific school, Burt Oak
Academy. ‘Ihe basis of the Board’s argument is that, because Bogacz did not have a valid contract,
she did not have a property interest in continued employment,

As discussed above, Bogacz’s Complaint sufficiently pleads a valid contract for employment
as principal pf Burr Oak Academy. A public employee whose term of employment is set by contract
has a prote¢table property interest in performance of the contract according to the terms of that
contract. See Head, 225 F.3d at 528; Bordelon v, Chicago School Reform Board of Trustees, 233
F.3d 524 (7! Cir, 2000). Furthermore, Bogacz has sufficiently pled that she was deprived of this
protected property interest without due process of law and that the deprivation of this interest was
caused by sjate officials acting under the color of law. See Alexander, 1998 WL 699020 *3 (N.D.

Ill.) (Alexander). Accordingly, the Board’s Motion to Dismiss is denied.



LORI BOGACZ,

v.

BOARD OF EDUCATION, CALUMET PUBLIC
SCHOOL DISTRICT 132,

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION DOCKETED

AUG 2 9 2ng3
Plaintiff, No. 03 C 4548

Judge John W. Darrah

weweweveevevee we

Defendant.

|
MEMORANDUM OPINION AND ORDER

MEMORANQDULY — ye

Plaintiff, Lori Bogacz (“Bogacz”), filed suit seeking inj unctive and monetary relicf against

Defendant,

violation of

|
Bourd of Education, Calumet Public School District 132 (“the Board”), alleging a

er due process rights and breach of contract. Presently before the Court is Defendant's

Motion to Dismiss Complaint and Request for Temporary Restraining Order.

Are
the parties.
On
as a princip’
August 4, 2!
Academy.

On

March 20,
two board 4

contract stq

ding of Bogacz’s complaint supports the following summary of the alleged conduct of

August 8, 2002, the parties executed a Principal’s Contract wherein Bogacz would act
41 in and for the Calumet Public School District (“the District”) for the period of

02 to June 30, 2003. Pursuant to the contract, Bogacz became the principal of Burr Oak
Bogacz fully performed her contractual duties as principal of Burr Oak Academy.
March 28, 2003, the parties executed another Principal’s Contract. At the

003 meeting, four of the seven board members were present. As to Bogacz’s contract,
embers voted “yea” to approve it; and two board members abstaincd from voting. The

tes that Bogacz will act as a Principal in and for the District for the period of August 4,

|



2003 to Jung 30, 2005. At the time the contract was executed, it was expressly understood and
agreed to that Bogacz would continue to act as principal of Burr Oak Academy,

Foll ing a school board election of April 1, 2003, the composition of the Board changed.
At its May 15, 2003 mecting, the Board voted to “reassign” Bogacz from her position of principal
of Burr Oak |Academy to the position of Assistant Principal of the Calumet School for a one-year
term. Bogadz was not given notice of the Board’s intent to reassign her position.

OnJ ne 13, 2003, Bogacz, by her counsel, demanded assurance from the Board of its intent
to honor its gontractual obligations to her as set forth in the contract. On June 20, 2003, the Board
informed Bagacz that it had no intention of employing Bogacz as a principal for the 2003-2004
school year. |

| -
Purswant to the Federal Rules of Civil Procedure 12(b)(1), a case must be dismissed if the

court does npt have the statutory authority to hear and decide the dispute. Dismissal is required if

there is no federal question involved, if the partics are not completely diverse, or if the amount in
controversy |is not more than $75,000, When considering a motion to dismiss for lack of subject
matter jurisdiction under Rule 12(b)(1), a court may look beyond the jurisdictional allegations of the
complaint and view any submitted evidence on the issue to decide whether subject matter
jurisdiction ¢xists. United Transp. Union v. Gateway Western Railway Co. 78 F.3d 1208, 1210 (7th
Cir. 1996).'| The party asserting subject matter jurisdiction has the burden of proof on a Rule

12(b)(1) issue. United Phosphorus, Ltd. v. Angus Chemical Co., 322 F.3d 942, 946 (7th Cir. 2003).

‘Thi$ includes the minutes of the March 20, 2003 Board meeting submitted by the
Defendant with its motion. These are the minutes that are also referred to in a letter dated June
13, 2003, attached as an exhibit to Plaintiffs Complaint.

2