Calling the previous ruling "a significant legal error," the Ottawa High School Board is petitioning the Illinois Supreme Court to reconsider a recent decision made by the Appellate Court to reverse the 2015 firing of teacher Tim Burgess.
Last month, the Appellate Court denied the board's petition to rehear the case. The Appellate Court has said the board's decision to fire Burgess was “clearly erroneous.”
The school board fired Burgess, also a coach, for what a majority of board members termed “inappropriate and unprofessional conduct,” based on his conduct at a September 2014 union meeting, a November 2014 union meeting and a December 2014 investigatory meeting.
Neither Burgess, nor School Board President Don Harris commented Thursday on the case.
Attorney William Gleason, of Hauser, Izzo, Petrarca, Gleason and Stillman in Flossmoor, said in the Thursday filing on the board's behalf, the case presents an important question to consider regarding the ability of public entities, such as the board, to discipline public employees "for engaging in conduct outside of work hours, which violates the rules and directives of the employer."
"For the first time in Illinois law, the Illinois Appellate Court determined that public employees were immune from discipline by a public employer for engaging in conduct which occurred in what the Appellate Court referred to as a 'private context,' " Gleason wrote.
In January 2015, the school board fired Burgess, citing disruptions at a teachers union meeting as the tipping point after a history of warnings on previous disciplinary infractions.
After a hearing on Burgess’ termination, an Illinois State Board of Education hearing officer recommended Burgess should be reinstated. However, a majority of the board still held Burgess should remain fired. Burgess went to court to have a judge overturn the board’s action, but Circuit Judge Joseph Hettel upheld the board’s decision.
Appellate judges said the actions occurred at closed-door meetings and the conduct, while not condoned, doesn’t relate to Burgess’ fitness to perform as a teacher.
The ruling stated the context of Burgess’ prior conduct is “highly significant.” Three previous disciplinary actions were related to his duties as a teacher. The conduct that precipitated the notice to remedy occurred at a public meeting of the school board.
“In marked contrast, the conduct that allegedly violated the notice to remedy and resulted in his dismissal was not related to his job performance, nor was it related to any impact on students, parents, members of the OTHS Board, the general public or staff in a school context.”
The board's attorney argued the only distinguishing feature in the Appellate Court's opinion between conduct relating to the employee's fitness as a teacher and that which was immune from the reach of disciplinary consequence was the time of day when the misconduct occurred.
"No Illinois court has ever determined that public employees are immune from disciplinary consequences when the employee's misconduct occurs off-duty," the board's attorney wrote.
Gleason further wrote the Appellate Court's opinion in the case creates a scenario where only public agencies within Ottawa's Appellate Court district are precluded from disciplining public employees for off-duty conduct, calling it inappropriate. The Appellate Court's opinion in the case promotes a public policy "that is not in the best interest of the state, its citizens or even fellow public employees," the attorney said.
Gleason said the Supreme Court's review is necessary "to protect the public interest by ensuring that public employees may be held accountable to meet the reasonable expectations which exist for them while serving in their highly responsible positions in the community."
Burgess' attorney may file an argument within 21 days, but it is not required.