SECOND DIVISION

									March 19, 2002

No. 1-00-3720

BOARD OF EDUCATION OF COMMUNITY

CONSOLIDATED SCHOOL DISTRICT NO. 54, 

		Plaintiff-Appellant,

				v.

RAYMOND SPANGLER and ILLINOIS STATE

BOARD OF EDUCATION, 

		Defendants-Appellees.	

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Appeal from the 

Circuit Court of

Cook County.

Honorable

Ellis E. Reid, 

Judge Presiding.

	PRESIDING JUSTICE BURKE delivered the opinion of the court:

	Plaintiff Board of Education of Community Consolidated School

District No. 54 (Board) appeals from an order of the circuit court,

entered upon administrative review, confirming a hearing officer's

reversal of the Board's decision to dismiss defendant Raymond

Spangler, a tenured teacher, based on his failure to achieve a

satisfactory rating after a one-year remediation plan conducted

pursuant to section 24A-5(f) of the School Code (Code) (105 ILCS 5-

24A-5(f) (West 1998)).  On appeal, the Board contends that the

hearing officer's decision was contrary to law and against the

manifest weight of the evidence.  For the reasons set forth below,

we affirm.  

	STATEMENT OF FACTS

	Raymond Spangler was employed as a tenured fifth grade teacher

by the Board at Link Elementary School in Elk Grove Village, a part

of the Schaumburg School District.  Spangler had been evaluated on

his performance over the years and had received satisfactory

ratings.  On October 2, 1996, Dr. Bruce Brown, the principal of

Link Elementary, wrote a letter to Spangler with respect to five

visits Brown had made to Spangler's classroom during the month of

September.  Brown noted a consistent pattern of interaction with

the class that needed immediate attention.  He also criticized

Spangler's lesson organization, instructional planning, classroom

management, instruction method, and advised Spangler that he needed

to address the individual needs of students and provide them with

feedback.  Spangler was advised that if he failed to show

improvement, it might result in an unsatisfactory rating.

	Subsequent to this letter, Brown completed Spangler's

evaluation for the 1996-97 school year.  Brown's April 30, 1997,

summative evaluation report noted that he had observed Spangler's

classroom on 10 occasions over the course of the preceding year, 2

of them prearranged.  Brown stated that the following areas of

Spangler's performance needed improvement: instruction method,

lesson planning and organization, concept of lesson directions, and

pacing.  Brown rated defendant unsatisfactory.  

	Because of the unsatisfactory rating, a remediation plan was

adopted to cover the period from June 1, 1997, to May 1, 1998.  The

plan cited 11 areas of weakness in Spangler's performance, which he

was required to improve: failure to present instruction that

corresponded to presented lesson plans; failure to communicate

instructional goals and objectives to the students during

instruction; failure to structure lessons and include opening and

closing comments; failure to assign homework; failure to provide

adequate feedback to the students with respect to their work;

failure to deviate from "whole class, teacher-led" instruction

model; failure to stress active participation by all students

during instruction; failure to show little modification in lessons

or assignments to meet the individual needs of students; failure to

identify inattentive students and develop an engagement strategy;

failure to appropriately pace lessons, some being over 90 minutes

long; and failure to adequately display current student work.  It

concluded with a statement that Spangler's overall performance had

been rated unsatisfactory.

	During the remediation period, Spangler was observed and

evaluated by Dr. Brown and Marianne Zito, the assistant

superintendent for instruction.  During the first quarter, Brown

observed Spangler on nine occasions, one being prearranged.  In his

summative evaluation report dated October 17, 1997, after detailing his observation results, Brown noted that the pattern of concerns

in the remediation plan remained largely unaddressed by Spangler. 

Accordingly, Brown gave Spangler an unsatisfactory rating on his

current progress.  During the second quarter, Brown observed

Spangler eight times, one being prearranged.  In his summative

evaluation report dated January 30, 1998, Brown again stated that

the patterns of concern of the remediation plan were unaddressed

and rated Spangler's performance unsatisfactory.  During the third

quarter, Brown observed Spangler six times, one prearranged. 

Brown's conclusion in his summative evaluation report dated March

23, 1998, was the same.  During the last quarter, Spangler was

observed six times by Brown and at least twice by Zito.  Brown's

conclusion in his summative evaluation report dated May 27, 1998,

was the same.

	Because Brown rated Spangler unsatisfactory and, therefore,

Spangler failed to complete the remediation plan with a

satisfactory or better rating, the Board passed a resolution on

June 18, 1998, to dismiss Spangler.  It adopted a notice of charges

as the reason for the dismissal, setting forth the following 17

charges: 

		"(1) Your in-class instruction frequently

fails to correspond to teacher lesson plans; 

(2) You fail to communicate learning objectives and goals to the students during

instruction; (3) You fail to properly

structure the lesson by including opening and

closing activities; (4) You have unaccounted

time periods in your lesson plans; (5) You

have left the classroom for unannounced

activities, and you have left your students

unsupervised during these times; (6) You fail

to properly pace and limit your lessons on

individual subjects to an appropriate length

of time for fifth grade students; (7) You fail

to use a variety of teaching methods; (8) You

fail to modify your instruction to meet the

individual needs of the students; (9) You fail

to redirect the attention of inattentive

students to the learning task; (10) You fail

to properly grade your students; (11) You fail

to convey accurate information to students;

(12) You allow students to work outside the

classroom on an unsupervised basis; (13) You

fail to provide support or feedback to

educationally needy students; (14) You fail to

provide enrichment activities for high- achieving students; (15) You have used

inappropriate physical contact with students;

(16) You are often insubordinate, and you fail

to act in a professional manner toward the

administration, staff, and parents; (17) In

the opinion of the Board of Education, you are

not qualified to teach and your dismissal is

in the best interests of the District.

The Board also attached to the resolution a bill of particulars in

support of the charges. 

	Subsequently, Spangler requested an administrative hearing

pursuant to section 24-12 of the Code (105 ILCS 5/24-12 (West

1998)).  This hearing commenced on December 1, 1998, and concluded

in March 1999.  Both parties presented evidence and testimony in

their favor, more fully discussed below.  Following the hearing,

the hearing officer, in a lengthy decision issued September 21,

1999, reversed the Board's dismissal of Spangler.  After detailing

the evidence presented by both parties, the hearing officer

rendered the following conclusions on each charge: (1) Failure to

follow lesson plans--"Based on the evidence in the record Mr.

Spangler's deviations are not a serious fault"; (2) Failure to

communicate learning objectives and goals to students--"Although

Mr. Spangler may be deficient on this point, it hardly appears to be so serious as to warrant an unsatisfactory rating"; (3) Failure

to structure lessons by doing opening and closing activities--"This

charge is closely related to the one preceding it.  In both charges

Mr. Spangler is at fault but not as great as the charges would have

us believe"; (4) Unaccounted periods in lesson plans--"Dr. Brown

had good reason to fault Mr. Spangler on this charge"; (5) Leaving

classroom with students unsupervised--"This is certainly a minor

incident, Mr. Spangler's explanation makes sense"; (6) Failure to

pace lessons and limit them to appropriate length--"Mr Spangler

evidently realizes that his lessons are sometimes too long,

maintaining that he improved as time went on, so this is a

legitimate complaint"; (7) Failure to use a variety of teaching

methods--"He deserves to be censured on this charge"; (8) Failure

to meet the needs of individual students--"There is a mixed bag on

this charge.  Mr. Spangler did meet individual needs in some

instances, but failed in others.  The charge is only partly

proven"; (9) Failure to redirect inattentive students to learning

task--"Fifth grade students can indeed be expected to be

inattentive some of the time.  We do not know whether these fifth

graders goofed off more than others.  Some of Mr. Spangler's

explanations may be suspect, such as saying students moved about to

discard used tissue, but it is hard to fault the teacher for lack

of attention, although some blame must rest with this teacher"; (10) Improper grading--"There is some basis to this charge,

although all of it is not proven"; (11) Failure to convey accurate

information to students--"Based on Dr. Brown's statements, this

charge is sustained"; (12) Students working outside classroom

unsupervised--"No preponderance of the evidence exists on most of

this charge, although the purpose of the reading race is never

explained"; (13) Failure to provide support to educationally needy

students--"This charge is partially supported"; (14) Failure to

provide enrichment activities for high-achieving students--"This

charge is sustained"; (15) Inappropriate physical contact with

students--"Evidence supporting Dr. Brown is convincing and backs

the charges.  There is only this one incident, however, which is

serious enough, but Mr. Spangler is not accused of inappropriate

contact with students regularly"; (16) Insubordination and failure

to act professionally towards administration, staff and parents--

"Insubordination is not directly related to Mr. Spangler's

teaching; (17) Not qualified to teach--"[T]his is a mixed bag." 

His letters do exhibit sarcasm and hostility, but these too do not

squarely bear on his ability as a teacher."  Based on all the

evidence presented, the hearing officer concluded that the Board

failed to show by a preponderance of the evidence that Spangler

deserved an unsatisfactory rating during the remediation year, nor

should he have been dismissed.

	Thereafter, the Board filed a complaint for administrative

review in the circuit court.  The trial court subsequently

confirmed the hearing officer's decision.  This appeal followed.

	ANALYSIS

	The Code provides a mandatory procedure for dismissal of

tenured teachers.  Section 24A-5 of the Code allows

		"dismissal in accordance with Section 24-12

*** of any teacher who fails to complete any

applicable remediation plan with a

'satisfactory' or better rating."  105 ILCS

5/24A-5(j) (West 1998).1

Section 24-12 of the Code provides:

			"If a dismissal or removal is sought for any other reason [other than a decrease in the

number of teachers] or cause, *** the board

must first approve a motion containing specific charges by a majority vote of all its

members.  Written notice of such charges shall

be served upon the teacher within 5 days of

the adoption of the motion.  Such notice shall

contain a bill of particulars.  No hearing

upon the charges is required unless the

teacher within 10 days after receiving notice

requests in writing of the board that a

hearing be scheduled, in which case the board

shall schedule a hearing on those charges

before a disinterested hearing officer ***. 

The hearing officer shall hold a hearing and

render a final decision. 

			***  The hearing officer shall consider

and give weight to all of the teacher's

evaluations written pursuant to Article 24A. 

The hearing officer shall, within 30 days from

the conclusion of the hearing or closure of

the record, whichever is later, make a

decision as to whether or not the teacher

shall be dismissed and shall give a copy of

the decision to both the teacher and the

school board. *** The decision of the hearing officer is final unless reviewed as provided

in Section 24-16 of this Act."  105 ILCS 5/24- 12 (West 1998).

These sections provide the mandatory procedures and requirements

necessary for a district to dismiss a tenured teacher.

	I.  Issues As A Matter Of Law

	A.  Scope of Hearing Officer's Authority

	We first address the scope of the hearing officer's authority

under section 24-12 of the Code because the Board contends that the

hearing officer exceeded the authority extended to him under the

Code by substituting his judgment for that of the Board.  Prior to

August 1975, a school board was vested with the multiple functions

of investigation, prosecution, and factual determination.  Morelli v. Board of Education, Pekin Community High School District No.

303, Tazewell County, 42 Ill. App. 3d 722, 728, 356 N.E.2d 438 (1976).  As such, the school board would issue the initial charge

or determination of probable cause to remove a teacher and then

ultimately adjudicate, based upon a majority vote of all board

members, to dismiss the teacher.  Board of Education of Valley View Community Unit School District No. 365U v. File, 89 Ill. App. 3d 1132, 1134, 412 N.E.2d 1030 (1980).  Thus, it was the school

board's responsibility to determine facts, weigh the evidence

presented to it, and, after due consideration of matters with respect to credibility, ascertain whether there was sufficient

evidence to support dismissal of a tenured teacher.  Morelli, 42 Ill. App. 3d at 726-27.  Importantly, the different functions of

the school board, e.g., the investigative/charging function versus the adjudicative function, subsume different bases and purposes.  Morelli, 42 Ill. App. 3d at 728.  

	Effective August 26, 1975, the legislature amended section 24-

12 and placed the hearing function with an impartial hearing

officer.  Board of Education, School District No. 151, Cook County v. Illinois State Board of Education, 154 Ill. App. 3d 375, 381, 507 N.E.2d 134 (1987); File, 89 Ill. App. 3d at 1135.  The school board now possesses only an investigatory/charging function.  As

such, the board makes the initial determination whether there are

grounds for dismissal.  Board of Education of Round Lake Area Schools, Community Unit School District No. 116 v. State Board of

Education, 292 Ill. App. 3d 101, 110, 685 N.E.2d 412 (1997).  When the board adopts charges to dismiss a teacher, it "sets the

dismissal process in motion."  Combs v. Board of Education of Avon Center School District No. 47, 147 Ill. App. 3d 1092, 1096, 498 N.E.2d 806 (1986).  In other words, although the board still

possesses the power to dismiss a teacher, the procedures by which

the dismissal is accomplished is governed by the requirements of

section 24-12.  File, 89 Ill. App. 3d at 1135.  

	Despite the above-referenced amendment, the Board argues that

the hearing officer has no authority to evaluate the seriousness or

gravity of the charges when ascertaining whether the Board had met

its burden of proving that an unsatisfactory rating was justified. 

Rather, according to the Board, the hearing officer can only

determine whether the Board had proven, by a preponderance of the

evidence, the charges alleged.  We disagree based on the

legislative purpose and comments at the time of the amendment, as

well as the inherent nature of the proceedings contemplated and

authorized by the legislature.

	The legislature's comments made at the time the amendment was

being debated demonstrate that it was the legislature's intent to

give full and total authority to the hearing officer to make the

ultimate decision and determination as to dismissal.  See, e.g., 79th Ill. Gen. Assem., Senate Proceedings, May 13, 1975, at 30

(statements of Senator Glass) ("The bill *** would create a hearing

officer who would have the power, after a board of education has

discharged a teacher, *** to hold a hearing and, in effect, reverse

the board of education"); 79th Ill. Gen. Assem., Senate

Proceedings, May 22, 1975, at 153-54 (statements of Senator Glass)

(this bill "is an attempt to take away from the local school boards

the authority to discharge a teacher ***[,] the local board can

discharge a teacher, but then the hearing officer holds the hearing and can overrule the board," this bill is "taking away power from

the local board ***.  This is just another step in...in reducing

power of our local authorities"); 79th Ill. Gen. Assem., Senate

Proceedings, May 22, 1975, at 154 (statements of Senator Fawell)

("we would be taking from our local boards of education the right

to make a very basic decision in regard to the dismissal of a

tenured teacher"); 79th Ill. Gen. Assem., Senate Proceedings, May

22, 1975, at 155-56 (statements of Senator Fawell) (the amendment

"will take from the board the discretion in regard to the dismissal

of a tenure[d] teacher"); 79th Ill. Gen. Assem., Senate

Proceedings, May 22, 1975, at 158 (statements of Senator Bruce)

("That dismissal, however, is subject to review, the very basic

system of justice we have is that decisions are subject to

impartial third party review, and that's what this bill provides

for"); 79th Ill. Gen. Assem., House Proceedings, June 26, 1975, at

325 (statements of Representative Jaffe) ("This is merely a matter

of procedural due process").  The rationale for the amendment was

based on the "potential for abuse present where a local board of

education itself decides whether it had just cause to remove a

tenured teacher from its employment," which abuse "could be

eliminated by replacing the local board with an impartial hearing

officer."  File, 89 Ill. App. 3d at 1135.  Accordingly, the purpose of the amendment was to "avoid inequities which may result from a school board hearing and deciding a case in which they had already

made an initial decision to discipline the teacher, having passed

a motion containing specific charges against the teacher. 

[Citation.]  A school board can not be antagonist and judge and

still provide due process to the teacher."  Craddock v. Board of Education of Annawan Community Unit School District, No. 226 of

Henry County, 76 Ill. App. 3d 43, 45, 391 N.E.2d 1059 (1979).  

	These comments and purposes show an intent that all issues inherent to the dismissal determination and discretion in

evaluating the issues were to be made by the hearing officer, i.e., not only whether the Board had proven the alleged charges, but also, whether the charges were sufficiently grave to ultimately

justify dismissal.  See Powell v. Board of Education of City of Peoria, District 150, 189 Ill. App. 3d 802, 807, 545 N.E.2d 767 (1989) ("a reading of section 24-12 as amended, reflects the

legislature's intent to remove from the jurisdiction of local

boards the ultimate responsibility on a termination decision

following remediation to a disinterested hearing officer").  If the legislature intended to leave any discretion or determination with

the local board, it clearly would have said so.  It did not. 

Rather, the legislature utilized the term "final decision" with

reference to the hearing officer's determination.  A "final

decision" is "[o]ne which leaves nothing open to further dispute and which sets at rest [a] cause of action between parties.  ***

One which settles rights of parties respecting the subject-matter

of the suit and which concludes them until it is reversed or set

aside."  Black's Law Dictionary 567 (5th ed. 1979).  "Final" is

defined as "[l]ast; conclusive; decisive; definitive; terminated;

completed."  Black's Law Dictionary at 567.  Clearly, if the

hearing officer is to render the final decision, he must be

afforded the opportunity to evaluate all issues, weigh the

evidence, and decide whether the charges are sufficiently grave to

warrant dismissal.  Moreover, if any discretion had been left with

the school board to ultimately determine any of the factors or

issues relevant to the dismissal determination, the opposition to

the amendment would not have been so extensive.  See, e.g., 79th Ill. Gen. Assem., Senate Proceedings, May  22, 1975, at 153-54

(statements of Senator Glass); 79th Ill. Gen. Assem., Senate

Proceedings, May  22, 1975, at 154, 155-56 (statements of Senator

Fawell); 79th Ill. Gen. Assem., Senate Proceedings, May  22, 1975,

at 157-58 (statements of Senator Shapiro) (comments of those

opposed to the bill).  See also 79th Ill. Gen. Assem., Senate

Proceedings, May 22, 1975, at 158 (vote 31 ayes, 19 nays).  Lastly,

the legislature clearly concluded that local boards were not always

disinterested nor impartial and, therefore, were unable to afford

the necessary process required prior to dismissal of a tenured teacher.  Thus, the legislature deemed a need for an impartial

hearing officer.

	Accordingly, the legislative comments and purposes, as well as

the statutory language itself, indicate that the hearing officer

possesses the authority to decide all issues with respect to a

dismissal decision, including the gravity of the charges.  In

giving the hearing officer authority, we conclude that the

legislature contemplated giving him full authority over the

decision. 

	Additionally, we believe that the inherent nature of the

proceedings authorized by the legislature manifest that the hearing

officer has authority to evaluate the gravity of the charges. 

Because a tenured teacher has a property interest in continued

employment that is protected by principles of due process (Round Lake Area Schools, 292 Ill. App. 3d at 113), the legislature has provided this due process by allowing a hearing before an impartial

hearing officer.  The administrative proceedings before the hearing

officer, which are quasi-judicial in nature, are governed by

fundamental principles and requirements of due process.  Round Lake Area Schools, 292 Ill. App. 3d at 113.  A "hearing" is a "[p]roceeding of relative formality (though generally less formal

than a trial), generally public, with definite issues of fact or of

law to be tried, in which witnesses are heard and parties proceeded against have the right to be heard, and is much the same as a trial

and may terminate in a final order."  Black's Law Dictionary at

649.  The hearing before a hearing officer under the section 24-12

provision is strongly akin to the dictates and commands of an

actual trial.  The hearing is public (23 Ill. Admin. Code §51.60(a)

(1996)) and both parties are afforded a right to counsel (23 Ill.

Admin. Code §51.60(b) (1996)).  Both parties are allowed to make

opening statements (23 Ill. Admin. Code §51.60(c)(2) (1996)), and

the school board presents its evidence first (23 Ill. Admin. Code

§51.60(c)(3) (1996)).  Both parties are given the opportunity to

cross-examine witnesses, offer evidence, and present a defense or

rebuttal.  23 Ill. Admin. Code §51.60(c)(4) (1996).  All testimony

presented must be under oath.  23 Ill. Admin. Code §51.60(c)(5)

(1996).  In addition, the hearing officer may issue subpoenas to

witnesses or for documents (23 Ill. Admin. Code §51.60(c)(6)

(1996)), and must ensure that a report of proceedings is made (23

Ill. Admin. Code §51.60(c)(7) (1996)).  The Illinois Administrative

Code further provides that the hearing must "afford full and equal

opportunity to all parties for presentation of relevant proof."  23

Ill. Admin. Code §51.60(c)(12) (1996).  Following the presentation

of evidence, both parties are accorded the right to present a

closing argument (23 Ill. Admin. Code §51.60(c)(13) (1996)), and

the hearing is not closed until all of the evidence presented at the hearing is submitted to the hearing officer (23 Ill. Admin.

Code §51.60(c)(14) (1996)).  The hearing officer is then required

to render a decision based on the "relevancy and materiality of the

evidence offered" (23 Ill. Admin. Code §51.60(d)(2) (1996)), 

deciding whether or not the teacher shall be dismissed (23 Ill.

Admin. Code §51.70(a) (1996)), specifically in the instant case,

whether the Board proved by a preponderance of the evidence that

Spangler "failed to complete the remediation plan with a

satisfactory or better rating" (Davis v. Board of Education of the City of Chicago, 276 Ill. App. 3d 693, 697, 659 N.E.2d 86 (1995)), which is a final decision unless reversed under the Administrative

Review Law (23 Ill. Admin. Code §51.70(d) (1996)).

	Because the hearing officer's duty is to decide whether the

teacher should be dismissed, he is required to make an independent

finding that the evidence warrants dismissal (Combs, 147 Ill. App. 3d at 1100), and must determine the facts and formulate the legal

issues presented to him (Friesel v. Board of Education of Medinah School District, District No. 11, Du Page County, 79 Ill. App. 3d 460, 464, 398 N.E.2d 637 (1979)).  The hearing officer acts as the

factfinder and "has the responsibility to hear the testimony of

witnesses, to determine their credibility and the weight to be

given to the testimony of each witness and then to draw reasonable

inferences from all evidence produced in support of the charges against the accused."  Hall v. Board of Education of the City of Chicago, 227 Ill. App. 3d 560, 574, 592 N.E.2d 245 (1992).  Dismissal proceedings before the hearing officer are de novo.  Board of Education of the City of Chicago v. Harris, 218 Ill. App. 3d 1017, 1024, 578 N.E.2d 1244 (1991); Shreve v. Board of Education of Mount Vernon High School District No. 201, 309 Ill. App. 3d 670, 676, 722 N.E.2d 1181 (1999).  "De novo" is defined as "[a]new; afresh" and "de novo trial" is defined as "[t]rying a matter anew; the same as if it had not been heard before and as if no decision

had bene previously rendered."  Black's Law Dictionary at 392.  By

the definition of de novo alone, it is abundantly evident that the hearing officer possesses the authority to evaluate the gravity of

the charges.  Specifically, he is to review the matter "as if no

decision had been previously" made.  If the Board's decision with

respect to the gravity of the charges were not subject to review,

the hearing officer would lack the ability to perform a de novo review and render the final decision.

	As noted above, the function of investigation/charging is

distinct from the function of adjudication.  The hearing officer

takes and hears evidence (adjudication), while the school board

simply investigates and gathers evidence (investigation). 

"Investigate" means "to trace or track; to search into; to examine

and inquire into with care and accuracy; *** examination."  Black's Law Dictionary at 740.  "Adjudicate" or "adjudge" means "to decide

*** [and] [i]mplies a judicial determination."  Black's Law

Dictionary at 39.  The legislature clearly left only one function

with the local board, that of investigation and charging.  The

adjudicatory function, and all matters attendant thereto, was

placed with the hearing officer.  Additionally, because only one

ultimate decision can be had and the legislature has determined

that that is the hearing officer's decision, whose decision is

final, the dismissal of a tenured teacher occurs only when the

hearing officer renders his or her decision.  Combs, 147 Ill. App. 3d at 1099.  Stated another way, a motion for dismissal by the

board does not itself constitute an order of dismissal where a

teacher elects his right to a hearing; no dismissal occurs until

the hearing officer renders his or her decision.  Massie v. East St. Louis School District No. 189, 203 Ill. App. 3d 965, 969-70, 561 N.E.2d 246 (1990).  

	The Board repeatedly stresses that the instant proceeding

resulted from an Article 24A dismissal (dismissal following a

remediation plan), which, according to the Board, employs a

different scheme than a non-Article 24A dismissal.  The Board

relies upon Davis in support of its argument.  

	In Davis, the plaintiff teacher was terminated after he failed to receive a satisfactory or better rating following a remediation plan.  Davis, 276 Ill. App. 3d at 695.  Following an administrative hearing, the hearing officer concluded that sufficient cause

existed to dismiss the plaintiff because the board had proven 9 of

the 10 charges levied against the plaintiff.  Davis, 276 Ill. App. 3d at 695.  The circuit court confirmed the hearing officer's

decision.  Davis, 276 Ill. App. 3d at 695.  On appeal, the plaintiff first argued that the hearing officer "applied the wrong

legal standard by improperly framing the issue as whether the Board

deemed [the plaintiff's] performance under the remediation plan to

be unsatisfactory."  Davis, 276 Ill. App. 3d at 695.  According to the plaintiff, the hearing officer, not the school board, must make

this determination.  Davis, 276 Ill. App. 3d at 696.  The Davis court did not answer the question as posed by the plaintiff, but

instead stated that the hearing officer, not the board, had

authority to determine whether to extend the remediation period.  Davis, 276 Ill. App. 3d at 696.  The Davis court also rejected the plaintiff's contention that the hearing officer was required to

find that the plaintiff's conduct was irremediable in order to

sustain the charges, finding that section 24A-5(j) was applicable

and, accordingly, the court was required to look to section 34-85,2 which provides that a tenured teacher may not be dismissed except for cause.  Davis, 276 Ill. App. 3d at 696-97.  The Davis court then concluded that "the proper inquiry before the hearing officer

was whether [the plaintiff] failed to complete the remediation plan

with a satisfactory or better rating, constituting cause for

dismissal."  Davis, 276 Ill. App. 3d at 696.  After reviewing the evidence presented to the hearing officer, the court further

concluded that the hearing officer's finding, that sufficient cause

existed for his temrinationtermination, was supported by the record, i.e., the record "support[ed] the hearing officer's conclusion that [the

plaintiff's] performance was unacceptable."  Davis, 276 Ill. App. 3d at 697.

	Davis does not particularly aid the Board, nor does it control the outcome in the instant case.  While we agree that Davis stated that the scheme under Article 24A was different, the scheme is

different only in some respects.  Specifically, the hearing officer

need not make a finding of irremediability prior to sustaining

charges.  However, the procedures employed to effectuate a

dismissal, specifically those procedures under section 24-12, are

not different.  The Board ignores the fact that section 24A-5(j)

specifically states that any dismissal under Article 24A must be in

accord with section 24-12.  As such, the scheme is not different in

this important and relevant respect.  Additionally, while cause may

be defined differently under Article 24A, this begs the question.  The definition of cause is irrelevant since an unsatisfactory

rating following a remediation plan constitutes cause.  See Davis, 276 Ill. App. 3d at 697.  However, the hearing officer must still

nonetheless determine if the unsatisfactory rating is warranted or

justified following the presentation of evidence to him.  We also

disagree with the Board that because the deficiencies in Davis were similar to the deficiencies in the instant case, and those

deficiencies warranted dismissal, that the hearing officer here was required to dismiss Spangler.  Each case before a hearing officer

is based on its own particular facts and circumstances.  Therefore,

reliance on other cases, where the facts are not identical, is

neither justified nor proper.   Lastly, and most importantly, Davis did not address the issue presented to this court: whether the

hearing officer can evaluate the gravity of the charges in

rendering his decision.  Accordingly, Davis does not control our resolution of the case here.

	Based on the foregoing, we conclude that the hearing officer

did not err as a matter of law in evaluating the seriousness or

gravity of the charges in reaching his conclusion.  The hearing

officer has a duty to determine whether an unsatisfactory rating

was warranted based on the evidence before him.  This includes a

determination of the seriousness of the offense because even if the

Board had proven 20 charges, and none were serious or none related to Spangler's ability as a teacher, dismissal would not be proper. 

However, under the Board's interpretation, dismissal would

nonetheless be required.  This is not what the Code commands.

	B.  Charges Proven Warrants Dismissal

	The Board next contends that the hearing officer erred in

reversing its termination decision as a matter of law because the

hearing officer found that it proved six of the charges against

Spangler, yet concluded that Spangler should not be dismissed. 

According to the Board, because the hearing officer concluded that

six charges had been proven, he was required as a matter of law to

dismiss Spangler.  

	The six relevant charges are numbers 4, 6, 7, 11, 14, and 15,

and the hearing officer's conclusion with respect to each is

detailed above.  After reviewing all of the charges and evidence

presented, the hearing officer concluded that the Board had not

established by a preponderance of the evidence that Spangler should

have been rated unsatisfactory, nor should he have been dismissed.

	Contrary to the Board's argument, the hearing officer did not

state or necessarily conclude that all six charges were proven. 

Rather, he concluded that two of the charges were "sustained."  We

can presume, although the hearing officer did not explicitly so

state, that he meant that the Board proved the charges by a

preponderance of the evidence.  The rest of the hearing officer's conclusions are somewhat cryptic and it cannot necessarily be

concluded from them that he found they were proven by a

preponderance of the evidence.  The question nevertheless remains

whether the hearing officer was required as a matter of law,

because he found two charges proven, to find that Spangler was

properly rated unsatisfactory.  In other words, if at least one

charge is proven, must dismissal result automatically?  The Board

has not cited to any authority holding that if one, of any number

of charges, is proven, the hearing officer must conclude, as a

matter of law, that completion of the remediation plan was

unsatisfactory.  Accordingly, we find that the Board has waived

review of this issue by failing to cite to any authority in support

of its argument.  Carr v. Cook County Hospital, 323 Ill. App. 3d 184, 189, 751 N.E.2d 119 (2001).

	In any event, if such a conclusion were required, it would

lead to absurd results.  As noted above, if one charge was found to

be proven by a preponderance of the evidence and that charge was

minor or unrelated to the teacher's ability to perform his job

functions, the rule urged by the Board would nonetheless require

the teacher's dismissal.  We do not agree that this is what the

legislature contemplated in promulgating the Code.  Accordingly, we

reject the Board's argument that the hearing officer erred as a

matter of law in failing to uphold the dismissal based on the fact that a certain number of charges were proven.

	[The following material is nonpublishable under Supreme Court Rule 23].

	C.  Insubordination as a Basis for Dismissal

	The Board next contends that the hearing officer erroneously

concluded that insubordination is not a basis for dismissal. 

	The record shows that the hearing officer first noted that

Spangler's alleged insubordination played no role in the decision

to give him an unsatisfactory rating.  However, insubordination was

an influence on the decision to dismiss him as it appears in the

bill of particulars for his dismissal.  The hearing officer then

acknowledged that Spangler did engage in certain conduct that the

Board asked him not to do.  Nonetheless, the hearing officer

questioned whether a charge of insubordination was proper in a

teacher setting.

	Despite the hearing officer's belief, he noted that the charge

of insubordination did not "go to the central core of this case"

because had Spangler received a satisfactory rating, yet still

engaged in the conduct deemed insubordinate, there would have been

no dismissal.  The hearing officer additionally noted that 

although Spangler responded to criticism with sarcasm and

hostility, derogatory remarks, and distributed unprofessional

letters to various school staff, he had written on many subjects not directly related to teaching.  The hearing officer concluded

that while the letters exhibited hostility and sarcasm, they did

not squarely bear on Spangler's ability as a teacher and did not

directly relate to his teaching.

	Insubordination is a ground for dismissal in an educational

setting.  Round Lake Area Schools, 292 Ill. App. 3d at 110.  In Round Lake Area Schools, the court set forth the following principles of insubordination in the educational context:

		"In an employment relationship,

insubordination 'imports a wilful or

intentional disregard of the lawful and

reasonable instructions of the employer.' 

[Citation.]  It therefore follows that the

instructions, or rule, of the employer must

first be reasonable.  Once the rule is

determined to be reasonable, then it must be

determined whether the breach or violation of

the rule was wilful or intentional

[citations], because not every violation of a

rule will be tantamount to insubordination."  Round Lake Area Schools, 292 Ill. App. 3d at 110.

	In the instant case, the charges of insubordination were based on a letter sent by Spangler to a parent, without prior

administrative censorship, allowing students to use a video camera,

and his response to criticism in his writings, including letters,

with sarcasm, hostility and in an inappropriate and unprofessional

tone. 

	Although the hearing officer did not analyze the

insubordination charge in light of the above principles, this is

not pertinent.  The Board argues that the hearing officer ruled as

a matter of law that insubordination can never be a ground for

dismissal.  The hearing officer clearly did not so rule.  Rather,

he concluded that the charges and evidence supporting the charges

in the instant case did not relate to Spangler's teaching ability. 

Implicit in this conclusion is the hearing officer's belief that

insubordination was not a ground for the dismissal of Spangler. 

Accordingly, the Board's argument is unpersuasive.

	II.  Manifest Weight of the Evidence

	The Board next contends that the hearing officer's decision

that it failed to prove or only partially proved five additional

charges was against the manifest weight of the evidence.  

	It would unduly lengthen this opinion to set out each of the

alleged evidentiary insufficiencies the Board claims in support of

its argument that the hearing officer's decision on these five

charges was against the manifest weight of the evidence.  Suffice it to say, both parties presented evidence on each of the charges

and underlying examples to support their positions.

	Our review of an administrative decision, such as the hearing

officer's, extends to all questions of law and fact.  Round Lake Area Schools, 292 Ill. App. 3d at 108.  The factual findings of the hearing officer, are "held to be prima facie true and correct."  735 ILCS 5/3-110 (West 1998); Round Lake Area Schools, 292 Ill. App. 3d at 108.  We review the administrative decision and not the

decision of the circuit court. Shreve, 309 Ill. App. 3d at 679.  We will reverse the hearing officer's decision only if it is against

the manifest weight of the evidence.  Shreve, 309 Ill. App. 3d at 678-79.  A decision is against the manifest weight of the evidence

only where "all reasonable and unbiased persons would agree it is

clearly evident the [hearing officer] erred and should have reached

the opposite conclusion."  Round Lake Area Schools, 292 Ill. App. 3d at 108.  If the record contains evidence to support the hearing

officer's decision, it should be affirmed.  Round Lake Area Schools, 292 Ill. App. 3d at 109.  It is not this court's function to reassess the credibility of witnesses or the weight to be given

to the evidence.  Shreve, 309 Ill. App. 3d at 678-79.

	A.  Failure to Supervise (Charge 12)

	The Board contends that Spangler's students were often found in the hallways or other parts of the school without supervision,

which was observed by both Brown and Zito, and that it proved this

charge by a preponderance of the evidence.  The Board cited and

presented evidence on five specific examples to the hearing

officer.  These particulars were either noted by the hearing

officer or detailed by him in his decision.  Spangler presented

evidence to explain or rebut the charges and examples, including

testimony from two other teachers, Alan Klein and Virginia Johnson. 

After hearing the evidence, the hearing officer concluded that it

was normal practice for students to work outside the classroom.  He

also noted that students were absent from the classroom once a week

for band practice and, therefore, only a half a dozen students were

left, which he found was not unusual.  Ultimately, he concluded

that "[n]o preponderance of the evidence exists on most of this

charge."

	Clearly, the hearing officer gave more weight to the evidence

presented by Spangler than to the Board.  This is his prerogative. 

Based on the evidence presented and given the hearing officer's

authority to determine the weight of the evidence, we cannot say

that his conclusion was against the manifest weight of the

evidence.  

	B.  Failure to Modify Instructions (Charge 8)

	The Board contends that Spangler used a "one-size-fits-all"

teaching method and made no modifications of his method based on

the individual needs of the students.  The Board cited and

presented evidence on five examples to the hearing officer.  These

particulars were summarized by the hearing officer in his decision. 

Spangler again presented evidence to explain or rebut the charges

and examples.  The hearing officer concluded that "[t]here is a

mixed bag on this charge.  Mr. Spangler did meet individual needs

in some instances, but failed in others.  The charge is only partly proven."

	Based on the evidence presented, the Board did not prove that

it was more probable than not that Spangler never modified his

teaching method to meet the needs of individual students.  While

the evidence does demonstrate that Spangler was not the most

intuitive nor adaptable teacher, it nonetheless shows that he did

use various modifications or methods in order to address the needs

of students sometimes.  Again, based on the standard of review, we

find that the hearing officer's decision that the charge was only

partially proven was not against the manifest weight of the

evidence.  

	C.  Failure to Redirect Students' Attention (Charge 9)

	The Board argues that it presented extensive testimony that

during Spangler's classes students were often seen sleeping, talking, or otherwise not paying attention.  In

addition, according to the Board, Spangler allowed his students to

do whatever they wanted to and did not reprimand or redirect their

attention to the classroom projects.  The Board cited and presented

evidence on five examples, which the hearing officer summarized. 

Spangler presented evidence to explain or rebut the charges and

examples.  The hearing officer concluded that "[f]ifth grade

students can indeed be expected to be inattentive some of the time. 

We do not know whether these fifth graders goofed off more than

others.  Some of Mr. Spangler's explanations may be suspect ***[,]

but it is hard to fault the teacher for all lack of attention,

although some blame must rest with this teacher."

	Clearly, the evidence does not show that this is a case where

students were continuously running around the room or not paying

attention and learning nothing.  The incidents cited to by the

Board appear to be minor and such incidents, presumably, happen in

every classroom of almost every age.  There is evidence,

particularly Johnson's testimony to support the hearing officer's

decision that there will always be some inattentive students. 

Based on this, we conclude that the hearing officer's decision was

not against the manifest weight of the evidence. 

	D.  Failure to Properly Grade Students (Charge 10)

	The Board contends that Spangler gave most of his students As

or Bs, whereas  while the rest of the fifth grade teachers' grades were

throughout the grading curve.  The Board cited and presented

evidence on four examples to the hearing officer.  On appeal, the

Board maintains that Spangler did not base his students' grades on

daily homework, but rather only on chapter tests and, moreover,

that he based their grades on how fast the work was completed. 

According to the Board, the first 10 students to turn in their work

received As and the second 10 students to turn in their work

received Bs.  This evidence was supported by several letters from

students who complained about this procedure.  According to the

Board, when work was turned in, Spangler was observed writing numbers on the top of the papers, which was the order in

which the papers were turned in.

	Spangler testified that he did in fact give several students

Cs and the numbers he wrote on the top of the papers were used to

assist him in matching students for peer tutoring.

	The hearing officer summarized the examples, noting that the

Board was particularly concerned with the "speed grading" method. 

The hearing officer concluded that there was some basis for this

charge, but all of it was not proven.

	Clearly, the evidence with respect to the "speed grading"

method was contradictory.  It is not apparent from the hearing

officer's decision what credence he gave to the evidence presented

from either party.  However, Klein did testify on Spangler's behalf

that he, too, gave mostly As and Bs.  Based on the evidence in the

record, we cannot say that the hearing officer's decision that the

Board failed to prove the entire charge by a preponderance of the

evidence was against the manifest weight of the evidence.

	E. Failure to Provide Support or Feedback

	        To Educationally Needy Students (Charge 13)

	The Board contends that Spangler engaged in a "one-size-fits-

all" teaching method and expected all students to do the same work. 

The Board cited and presented evidence on four examples to the

hearing officer.  Spangler contends that he always answered and

responded to the students' questions and gave examples of how he

did so.  The hearing officer concluded that this charge was

partially supported.  

	There is not much evidence on behalf of either party with

respect to this charge.  Although it is true that all students are

not the same, there was no evidence that there were any children with learning

disabilities in Spangler's classroom that required extra special

attention or care.  Because of the weakness of evidence presented

by both parties and the fact that the hearing officer saw the

parties testify and, thus, was in a better position to judge the

credibility of the charges and explanations, we find that the

hearing officer's decision was not against the manifest weight of

the evidence.

	F.  Spangler Not Qualified to Teach (Charge 17)

	The Board contends that the allegation that Spangler was not

qualified to teach and that his dismissal was in the best interests

of the Board was a charge and that it presented compelling evidence

to show that Spangler's teaching was detrimental to the students. 

According to the Board, the failure of the hearing officer to consider this

charge was erroneous as a matter of law.  Spangler responds that

this was a mere conclusion and was not a proper charge.  The

hearing officer noted that this was really the Board's conclusion

and that it used this charge to bring up other incidents that it

had not raised under any of the other 16 charges.  He concluded

that the evidence on this charge was a "mixed bag." 

	In Community Unit School District No. 60, Waukegan Public Schools, Lake County v. Maclin, 106 Ill. App. 3d 156, 435 N.E.2d 845 (1982), the identical charges were brought against the teacher

and the court stated that these were "conclusions, not proper

charges."  Maclin, 106 Ill. App. 3d at 164.  However, the Maclin court did note that if proven by the evidence, these claims would

be a proper reason for dismissal.  Maclin, 106 Ill. App. 3d at 164.  Initially, the hearing officer here did consider these charges and

found they were a "mixed bag."  As such, the Board's argument that

he failed to consider these charges and, thus, erred as a matter of

law, is without merit.  The hearing officer addressed and detailed

the charges and examples supporting them.  In any event, based on

the evidence, we find that the hearing officer's decision that

these charges were not proven by a preponderance of the evidence

was not against the manifest weight of the evidence.

	[The preceding material is nonpublishable under Supreme Court Rule 23].

	CONCLUSION

	For the reasons stated, we affirm the judgment of the circuit

court of Cook County.

	Affirmed.

	GORDON and McBRIDE, JJ., concur.