concurring in part and dissenting in part:
I agree with the majority opinion, except for its discussion of the question whether the individual school board members have a right to receive pretermination hearings prior to their removal from the board. Unlike the majority, I do not believe that due process compels such hearings in this case, and accordingly I dissent from the portion of the majority opinion recognizing that right. 178 Ill. 2d at 415-22.
As the majority notes elsewhere in its opinion, the dismissal provisions of section 1B — 20 of the School District Financial Oversight Panel and Emergency Financial Assistance Law (105 ILCS 5/IB — 20 (West 1994)) took effect in 1989, before the present board members were elected to office. 178 Ill. 2d at 414-15. Because the present members were elected under a regime by which a member "by definition was one who could be removed from office for failure to obey a valid Panel order” (178 Ill. 2d at 415), I do not believe that the members can now claim a property right in their positions.
In support of its conclusion, the majority points to the provision of a specified term of office for school board members and to a gradual evolution in constitutional law, which has come to recognize greater rights in public employment and office. Neither ground is persuasive. Providing for a defined term of office does not by itself establish a vested property right in the office. See Adams v. Walker, 492 F.2d 1003, 1006-07 (7th Cir. 1974). In Scott v. Department of Commerce & Community Affairs, 84 Ill. 2d 42, 52 (1981), this court expressed some doubt, but did not decide, whether unpaid, part-time officials appointed to serve fixed terms of office — like the school board members here — were entitled to a trial-type proceeding prior to their removal from a public body.
As to the evolution of this area of law, it should be noted that modern cases from other jurisdictions continue to recognize that a property right does not automatically attach to a public office; rather, the existence of a property right depends on whether one is given by the terms and conditions of the office in question and by other relevant provisions of state or local law. See Adams, 492 F.2d at 1006; Leek v. Theis, 217 Kan. 784, 811, 539 P.2d 304, 325-26 (1975); Lanza v. Wagner, 11 N.Y.2d 317, 324, 183 N.E.2d 670, 673, 229 N.Y.S.2d 380, 385 (1962); Roth v. Cuevas, 603 N.Y.S.2d 962, 973, 158 Misc. 2d 238,_(1993); State ex rel. Battin v. Bush, 40 Ohio St. 3d 236, 242, 533 N.E.2d 301, 307 (1988).
The cases cited by the majority in support of its holding are not to the contrary. In Crowe v. Lucas, 595 F.2d 985 (5th Cir. 1979), state law provided that the incumbent’s term of office as alderman was for four years and until a successor could be duly elected and qualified. The incumbent had obtained a court order invalidating the results of the election at which he was defeated, and that order was still in effect later, when he attempted to remain in office. In those circumstances, the court found that no successor had been duly elected and qualified, and the court concluded that under state law the incumbent was entitled to continue to serve in office. In Collins v. Morris, 263 Ga. 734, 735-36, 438 S.E.2d 896, 897 (1994), also cited by the majority, the court stated that an elected official has a property interest in the office that is entitled to due process protection. The court went on to acknowledge, however, that "it is also true that an official takes his office subject to the conditions imposed by the terms and nature of the political system in which he operates.” (Internal quotation marks omitted.) Collins, 263 Ga. at 735, 438 S.E.2d at 897. In Foley v. Kennedy, 885 P.2d 583 (Nev. 1994), another case cited by the majority, the court’s reference to an elected officer’s property interest in the office came in the context of a discussion of recall proceedings under state law and the prevailing official’s recovery of costs arising from the proceeding.
I believe that resolution of this issue must proceed on a case-by-case basis, and a court faced with this question must carefully examine the terms and conditions of the particular office involved. The present board members took office subject to the measures contained in section 1B — 20 of the Emergency Financial Assistance Law. The statutory scheme provides no property interest in the office, and therefore I cannot join my colleagues today in recognizing a property interest in the positions. Accordingly, I dissent from that portion of the majority opinion.