SIXTH DIVISION
April 4, 2003

This is a consolidated appeal from two orders of the circuit court of Cook County, each ofwhich affirmed a decision by defendant, the Board of Education of the City of Chicago (Board),to discharge a tenured public school teacher for reporting to work under the influence ofmarijuana. We affirm.

BACKGROUND

We shall separately discuss the factual background of each plaintiff's case. The recordreveals the following relevant facts.

Plaintiff Wynona Younge 

Wynona Younge was a tenured teacher who had been employed since 1970. From 1982,she had been assigned to Ruggles Elementary School.

In early October 1997, interim principal Pamela Strain became concerned with Younge'srecent behavior. Strain asked her secretary and one of the assistant principals to prepare a log bycompiling notes and correspondence that Strain had received about Younge between October 1,1997, through October 22, 1997.

An entry on October 2, 1997, noted that Younge's sixth- and seventh-grade studentscomplained to assistant principal Myrna Dill-London (Dill) that they were not being allowed touse the washroom. Strain also received calls from parents who made similar complaints onbehalf of their children.

Parents also complained that Younge was screaming at their children. The parentsthreatened to report Strain to the Board's regional office if she did not take action. The parents ofone student, who had always been a good student in past years, phoned and met in person withStrain about their child's reluctance to come to school. Although Strain asked the parents to waita few days to see if the problem could be resolved, the parents insisted on transferring the studentfrom Younge's classroom. Strain granted their request.

On October 17, 1997, a student complained that Younge had called her fat or stupid. Based on these complaints, as well as the fact that Younge had been wearing sunglasses indoorsand because her eye pupils were dilated, Strain and Dill had some conferences with Younge.

On October 22, 1997, staff members, who notably were Younge's friends for many yearsand did not want any harm to come to her, informed Strain that Younge had left her classroomunattended on several occasions. They wanted the confusion to stop and the children to be safe.

On the same day, as a result of these matters, Strain contacted Michelle Quigley, R.N., themedical administrator of the Chicago Public Schools, and requested that Younge have a drugscreening test. School policy required that, in order to determine whether reasonable suspicionexisted for testing, the assistant principal must concur in the need. Because Dill was uncertainregarding Younge's physical appearance, Quigley declined the request.

Around the same time, the Board's office of investigations looked into a report thatYounge had pushed one student and verbally abused other students. A 12-year-old student toldinvestigators that when she tried to enter the classroom, Younge elbowed her in the stomach andpushed her back into the hallway. This report was confirmed by two other students. Anotherstudent said Younge told him he was a failure and to shut up. Younge also told another studentthat she was surprised the student got out of kindergarten.

On October 23, 1997, Strain told the investigator that Younge was having problems,which she believed placed students in her class at risk of harm. The investigator concluded,however, that Younge's actions and speech did not rise to the level of a violation of Board policy.

On October 24, 1997, Strain observed Younge and noticed that Younge's eyes were red,her face was swollen, and she appeared to lack coordination. Strain asked Dill to go to Younge'sclass and personally observe Younge's appearance and behavior. After observing Younge, Dillconcurred with Strain's observations regarding the red eyes and swollen face. Strain and Dillagreed that Younge should be referred for testing. They signed a form requesting drug testingbased upon reasonable suspicion. This time, Quigley decided that the circumstances warrantedthe drug screening and dispatched security personnel to escort Younge to Mercy WorksOccupational Medical Center (Mercy Works) for testing.

Younge went to Mercy Works and cooperated in the testing. She provided a urine samplewhich was then sent to a facility called MedTox Laboratories in St. Paul, Minnesota (MedTox). Results of the analysis showed positive for tetrahydrocannabinol (THC), a marijuana metabolite. The concentration in Younge's sample was 39 nanograms per millileter. According to theMedTox agreement with Mercy Works, any concentration over 15 nanograms per millileter is apositive result.

After the drug testing was completed, Younge's blood pressure was discovered to beuncontrollably high. She was transported by ambulance to a hospital where she remained untilNovember 17, 1997. Younge subsequently applied for and received a medical leave of absence. As a result, the Board took no action to advance Younge's dismissal. After Younge indicatedthat she planned to return, however, charges were brought against her seeking her dismissal.

On August 14, 1998, Younge was charged by Chicago Public Schools' chief executiveofficer, Paul Vallas, with the following: (1) violating section 3-12 of the Chicago Public SchoolsEmployee Discipline Code (Employee Discipline Code), which prohibits employees fromreporting to work under the influence of alcohol or illegal drugs; (2) violating section 4-8 of theEmployee Discipline Code, which prohibits conduct that is criminal, immoral, cruel or negligentor causes psychological or physical harm or injury to a student; (3) violating Board Rule 4-50(b),which relates to the Board's comprehensive policy of maintaining a drug and alcohol freeworkplace and the Chicago Public Schools drug and alcohol testing policy; and (4) conductunbecoming a teacher in the Chicago Public Schools.

A hearing was held before hearing officer James A. Rapp. At the hearing, Youngeinitiated a number of theories to discredit the test results, including criticisms of the testingprocedures, possible use or contamination with marijuana of Chinese herbal medicines she wastaking, and use of over-the-counter medications. All of these theories were rejected by thehearing officer, who found that Younge was under the influence of marijuana when she reportedto work on October 24, 1997. In addition to this finding, the hearing officer found that, by virtueof being under the influence of marijuana, by implication Younge had used marijuana and thatuse of marijuana is criminal conduct. Rapp further found that Younge violated sections 3-12 and4-8 of the Employee Discipline Code, Board Rule 4-50(b) and the Chicago Public Schools drugand alcohol testing policy, and that being under the influence of and the use of marijuanaconstituted conduct unbecoming an employee. Finally, he concluded that Younge's conduct wasirremediable, a written warning was not required and the circumstances supported the dismissalof Younge. On May 24, 2000, the Board adopted the recommendation that Younge bedismissed.

On May 27, 2000, Younge filed a complaint for administrative review with the circuitcourt of Cook County. On August 22, 2001, Circuit Court Judge Stephen A. Schiller issued anorder denying Younge's petition for administrative review and affirmed the Board's decision todismiss Younge. On September 21, 2001, Younge filed a timely notice of appeal.

Plaintiff Louella Higgs

Higgs was a tenured teacher employed by the Board. Her appointment was at HaytSchool, which is an elementary school. Higgs was a physical education teacher.

On the morning of September 14, 1998, Higgs arrived at work. Assistant principalBernard Murray first saw Higgs between 8:30 and 8:45 a.m. and she looked like her ususal self. Higgs' first class, with 30 to 33 children, was scheduled to begin at 9:20 a.m.

At approximately nine or ten o'clock that morning, Murray passed by Higgs, who wasstanding at the main entrance to the school. Higgs was the only person standing in the entrancearea. When Murray noticed a very strong odor of marijuana, he engaged Higgs in a briefconversation. Due to the strength of the odor, Murray concluded that it was coming from Higgs. Murray, who had been the assistant principal at Hayt School for three years and who had knownHiggs for almost two years, observed that Higgs' eyes were hazy and glazed over and were not asclear or focused as they were normally. Believing Higgs to be under the influence of marijuana,Murray went directly to the principal's office to report what he had observed. He filled out aform, noting that Higgs' pupils were dilated, she had unusual eye movement, and she smelled ofmarijuana.

Murray began conducting a teacher training session that afternoon. He noticed that Higgswas resting on both elbows and sitting in a manner he described as "kind of slouched, kind ofleaned over on the table just kind of like in a relaxed state."

Melody Williamson, who had been the principal of Hayt School for six years and whohad supervised Higgs during that time, also took part in the teacher training session thatafternoon. Williamson also observed Higgs and concluded that something was awry. Williamson considered Higgs to be engaging in inappropriate behavior. Specifically, Williamsonobserved that Higgs "had most of her body slumped across the table." Williamson also notedthat Higgs was wearing dark glasses, which she was taking on and off. Williamson furtherobserved that Higgs was being somewhat disruptive by talking to the person sitting next to her.

Williamson left the meeting and called Michelle Quigley, R.N., the medical administratorof the Chicago Public Schools to report what she and Murray had observed. Quigley concludedthat a drug screen was appropriate and made arrangements to have Higgs escorted by securityforces to Mercy Works for a drug screen.

Williamson returned to the training session and observed that Higgs was still slumpedacross the table, fidgeting, taking her glasses off and on, and acting disruptive. When thesecurity forces arrived at Hayt School, Higgs refused to go to Mercy Works. Williamson askedthe security guard to escort Higgs out of the area because she was talking loudly and acting in abelligerent manner. Higgs was escorted from the school. Eventually, at approximately 4:15p.m., Higgs went to Mercy Works on her own and provided a urine sample for testing.⁽¹⁾

Diana Grabowski, an employee at Mercy Works and certified to administer drugscreenings, performed Higgs' test. Grabowski noted on the Mercy Works form that Higgs dranka large quantity of water while she was in the Mercy Works waiting room. Higgs drankapproximately 30 ounces, cup after cup, until she vomited into the waste can. Grabowski foundHiggs' behavior unusual, so she telephoned Quigley to inform her of it.

Higgs' urine sample was sent to MedTox for analysis. Results of the analysis showedpositive for tetrahydrocannabinol (THC), a marijuana metabolite. The concentration in Higgs'sample was 29 nanograms per millileter, which was a positive result. After MedTox returned theresults of its analysis to Mercy Works, these results were reviewed by a medical review officerwho concluded that there were no mitigating circumstances he could uncover to warrant theconclusion that the test results were inaccurate.

On February 2, 1999, Higgs was charged by Chicago Public Schools' chief executiveofficer, Paul Vallas, with the following: (1) violating section 3-12 of the Chicago Public SchoolsEmployee Discipline Code, which prohibits employees from reporting to work under theinfluence of alcohol or illegal drugs; (2) violating the Chicago Public Schools drug and alcoholtesting policy; and (3) conduct unbecoming a teacher in the Chicago Public Schools. Higgs madea timely request for a hearing.

A hearing was held before hearing officer Edward Suntrup. During the hearing, Higgsalleged that there were mitigating circumstances. She presented testimony that she had beenexposed to passive inhalation of marijuana smoke exhaled by her HIV-positive sister, but alsoadmitted that she had smoked marijuana two days before her drug test. The hearing officerrejected the passive inhalation claim and noted that the results of Higgs' urine test wereconsiderably higher than that which would result from passive inhalation. He further found thather admission that she smoked marijuana two days before the test was insufficient to explain whyMurray smelled a strong odor of marijuana on Higgs.

On September 15, 2000, the hearing officer upheld the charges against Higgs andrecommended that the Board dismiss her from its employment. He concluded that thepreponderance of the evidence in the record warranted the conclusion that Higgs violated the1997 Board Rule 4-50 when she came to work as a grade school teacher under the influence of acontrolled substance. He further concluded that Higgs committed an act which the Board'spersonnel policy designates as both a serious disruption and a gross disruption of the orderlyeducational process in the classroom and in the school. He also concluded that Higgs violatedsection 4-3 of the Employee Discipline Code, which prohibits employees from involvement inthe illegal use of a controlled substance on the jobsite during hours of employment. On October25, 2000, the Board adopted the recommendation that Higgs be dismissed.

On November 28, 2000, Higgs filed a complaint for administrative review with the circuitcourt of Cook County. On November 7, 2001, Circuit Court Judge Julia M. Nowicki issued amemorandum opinion and order finding that the evidence in the record supported the Board'sdecision to dismiss Higgs. Additionally, Judge Nowicki deemed Higgs' conduct to beirremediable per se because her act caused damage to the students, faculty, and school. Higgsfiled a timely notice of appeal on December 7, 2001.

STANDARD OF REVIEW

This court's standard of review of a hearing officer's decision is governed by theAdministrative Review Law. 735 ILCS 5/3-101 et seq. (West 1996). The hearing officer isresponsible for weighing the evidence, determining the credibility of the witnesses and resolvingconflicts in testimony. Prato v. Vallas, 331 Ill. App. 3d 852, 861, 771 N.E.2d 1053, 1059 (2002). On administrative review, it is not this court's function to reweigh the evidence or make anindependent determination of the facts. Abrahamson v. Illinois Department of ProfessionalRegulation, 153 Ill. 2d 76, 88, 606 N.E.2d 1111, 1117 (1992). Our function instead is toascertain whether the findings and the decision are against the manifest weight of the evidence. Abrahamson, 153 Ill. 2d at 88, 606 N.E.2d at 1117; see also Launius v. Board of Fire & PoliceCommissioners, 151 Ill. 2d 419, 427-28, 603 N.E.2d 477, 481 (1992) (in determining whetherfindings are against the manifest weight of the evidence, reviewing court does not weigh theevidence to determine where the preponderance of the evidence lies). A decision is against themanifest weight of the evidence "only if the opposite conclusion is clearly evident." Abrahamson,153 Ill. 2d at 88, 606 N.E.2d at 1117.

Our review extends to all questions of law and fact presented by the entire record.Abrahamson, 153 Ill. 2d at 88, 606 N.E.2d at 1117. Thus, regardless of the reasoning of theagency, on administrative review, this court may affirm an agency's decision on any basisappearing in the record. Rogy's New Generation, Inc. v. Department of Revenue, 318 Ill. App. 3d 765, 771, 742 N.E.2d 443, 448 (2000); Midwest Central Education Ass'n v. Illinois EducationalLabor Relations Board, 277 Ill. App. 3d 440, 448, 660 N.E.2d 151, 156 (1995).

ANALYSIS

In this appeal, plaintiffs have raised several arguments that essentially translate into twoseparate issues: (1) whether cause for dismissal existed in the first instance and, if so, (2) whetherthe cause was irremediable warranting immediate dismissal without a written warning, orremediable warranting a written warning and progressive discipline. See, e.g., Board ofEducation v. Harris, 218 Ill. App. 3d 1017, 1022, 578 N.E.2d 1244, 1248 (1991) (if tenuredteacher is not given written warning prior to dismissal proceedings, Board has burden of provingnot only that cause for dismissal existed but also that cause was irremediable). We shall discussthese issues separately.

Cause for Dismissal

The hearing officers in these cases found by a preponderance of the evidence that Higgsand Younge were under the influence of marijuana while teaching elementary school students. These findings were based on documentary evidence, as well as credibility determinations thehearing officers made after observing testimony of the teachers, the administrators who observedthe teachers' behaviors and then referred them for drug testing, the drug testing experts, theteacher's co-workers and other witnesses called by the teachers. We conclude that the hearingofficers' findings, that cause existed to discharge Higgs and Younge because they were under theinfluence of marijuana while at work, were not against the manifest weight of the evidence.

Indeed, plaintiffs concede that pursuant to the policies of the Board, dismissal is one ofthe disciplinary options for "reporting to work under the influence of alcohol or illegal drugs"and "involvement in the illegal *** use of any controlled substance either on or off the job siteduring hours of employment or non-working time." They argue, however, that the hearingofficers failed to acknowledge their progressive discipline arguments and that it was improper forthe Board to discharge them without warning. We shall discuss this issue next.

Irremediability of Plaintiffs' Conduct

Having now determined that the Board had cause to dismiss plaintiffs, the second issuewe must decide is whether the cause for dismissal - reporting to work as an elementary schoolteacher under the influence of marijuana - was remediable or irremediable. Before a teacher maybe dismissed for remediable conduct, she must receive a written warning to cease that conduct,but a teacher may be immediately dismissed for irremediable conduct. 105 ILCS 5/34-85 (West1996). The Board concluded that reporting to work under the influence of marijuana wasirremediable, warranting discharge without a written warning.

It is well settled that the determination of whether a cause for dismissal is remediable orirremediable is a question of fact that involves the exercise of judgment and, therefore, lieswithin the discretion of the fact finder. Prato v. Vallas, 331 Ill. App. 3d 852, 864, 771 N.E.2d1053, 1061 (2002); Board of Education of Joliet Township High School District No. 204 v.Illinois State Board of Education, 331 Ill. App. 3d 131, 135, 770 N.E.2d 711, 714 (2002). TheBoard's findings that plaintiffs' conduct was irremediable will not be reversed by this court unlessthe decision is against the manifest weight of the evidence or the Board acted in an arbitrary orcapricious manner. Board of Education of Sparta Community Unit School District No. 140 v.Illinois State Board of Education, 217 Ill. App. 3d 720, 728, 577 N.E.2d 900, 905 (1991).

Plaintiffs argue that the hearing officers, in determining that their conduct wasirremediable, did not properly apply Gilliland v. Board of Education of Pleasant ViewConsolidated School District No. 622, 67 Ill. 2d 143, 365 N.E.2d 322 (1977). In Gilliland, theIllinois Supreme Court set forth the following two-pronged test for determining whether a causefor dismissal was irremediable: (1) whether damage was done to students, the faculty, or theschool, and (2) whether the conduct could not have been corrected had superiors warned theindividual charged. 67 Ill. 2d at 153, 365 N.E.2d at 326. Subsequent to the Gilliland decision,however, numerous cases held that the Gilliland test was inapplicable to conduct that wasimmoral or criminal. See, e.g., Board of Education v. Harris, 218 Ill. App. 3d 1017, 1023, 578N.E.2d 1244, 1248 (1991) (teacher's criminal conduct is irremediable per se regardless of test);Board of Education of Sparta Community Unit School District No. 140 v. Illinois State Board ofEducation, 217 Ill. App. 3d 720, 729, 577 N.E.2d 900, 905 (1991) (second prong of test is notappropriate where conduct in question is "immoral conduct"); McCullough v. Illinois State Boardof Education, 204 Ill. App. 3d 1082, 1090, 562 N.E.2d 1233, 1238 (1990) (second prong of testis inapplicable to situations involving the criminal conduct of a teacher); Fadler v. State Board ofEducation, 153 Ill. App. 3d 1024, 1028-29, 506 N.E.2d 640, 644 (1987) (second prong of test isnot appropriate in situations involving immoral conduct by a teacher that "has no legitimate basisin school policy or society"); McBroom v. Board of Education of District No. 205, 144 Ill. App.3d 463, 473, 494 N.E.2d 1191, 1198 (1986) (second prong of test is inapplicable to situationsinvolving the criminal conduct of a teacher); Board of Education of Argo-Summit School DistrictNo. 104, Cook County v. Hunt, 138 Ill. App. 3d 947, 952-53, 487 N.E.2d 24, 27-28 (1985)(explaining that it would be very difficult, if not impossible, to satisfy the second prong of theremediability test if it took only a promise never to engage in the improper conduct again, andthat the more appropriate focus in cases alleging immoral conduct is not whether the conductitself could have been corrected by a warning, but whether the effects of the conduct could havebeen corrected).

As the court in McBroom explained:

"[R]emediable conduct is misconduct by a teacher, in her ordinary courseof duties, which, if called to her attention, can ordinarily be remedied. Thus, suchconduct has been applied to a variety of fact situations in which the complained ofconduct has concerned either deficiencies in teaching performance [citation] orcorporal punishment [citation].

We hold the concept was not intended to apply to criminal conduct whichhas no legitimate basis in our society. Teachers, as leaders and role models, withtheir education and background, have the duty to implant basic societal values andqualities of good citizenship in their students. To claim that such conduct wasremediable distorts the thrust and purpose of the rule. Criminal activity of thisnature is conduct which cannot be remedied by a warning." McBroom, 144 Ill.App. 3d at 473-74, 494 N.E.2d at 1198.

We agree with the reasoning of those cases that a warning serves no purpose for conductthat is criminal or immoral. A warning here would have served no purpose. Plaintiffs werealready aware that reporting to work under the influence of an illegal drug was proscribedconduct under relevant sections of the Employee Discipline Code and other Board policies. Thus, such conduct cannot be remedied by a warning.

There is no need, however, to apply the Gilliland test in this case. Gilliland was decidedalmost 20 years before the 1995 Chicago school reform amendments (Public Act 89-15,