dissenting:
Deciding that the enactment by the legislature of the School Reform Act (Act) created a contract by operation of law patently misinterprets the legislative intent. The majority opinion is based solely upon the portion of the Act which provides in part as follows:
“All persons serving as subdistrict superintendent on May 1, 1989, and all persons appointed as subdistrict superintendent after May 1, 1989 and prior to July 1, 1991 in a manner other than as provided by Section 34 — 2,54 shall be deemed by operation of law to be serving under a performance contract which expires on June 30, 1991; and unless such performance contract of any such subdistrict superintendent is renewed (or such person is again appointed to serve as subdistrict superintendent) in the manner provided by Section 34 — 2.5 the employment of such person as subdistrict superintendent shall terminate on June 30, 1991.” (Emphasis added.) Ill. Rev. Stat. 1991, ch. 122, par. 34 — 8.3(g).
The majority opinion upholds the contention of the plaintiffs-appellants, who were subdistrict superintendents, that the Interim School Board (Interim Board or Board) violated section 34 — 8.3(g) of the Act and breached their contractual rights by eliminating the positions of 13 subdistrict superintendents.
Ignored in the opinion are other pertinent provisions and the procedural history of the Act. The opinion also expressly disregards comments made by Representative Ellis Levin, one of the primary sponsors of the school reform legislation, regarding the precise issue under consideration in this appeal. Contrary to a view expressed by my esteemed colleagues, the Act. should not be interpreted to indicate any intent “to give the subdistrict superintendents a golden parachute, much like private corporations give executives.” See 248 Ill. App. 3d at 458.
In interpreting legislation, a statute must be construed so as to ascertain and give effect to the intention of the legislature as expressed in the statute, and absent some clear legislative intent to the contrary, terms are to be given their ordinary and commonly understood meaning. (Morrison v. Chicago Board of Education (1989), 188 Ill. App. 3d 588, 594.) A preamble can be taken into account when ascertaining the goals of a legislative body. (Geri’s West, Inc. v. Ferrall (1987), 153 Ill. App. 3d 579, 583.) Legislative intent is to be determined not only from the language used, but also from the reasons for the enactment of the statute and the objectives to be achieved thereby. (Penkava v. Kasbohm (1987), 117 Ill. 2d 149, 154.) Where the language of the statute admits of two constructions, one of which would render the enactment absurd and illogical, while another would render it reasonable and sensible, the former construction must be avoided. Mulligan v. Joliet Regional Port District (1988), 123 Ill. 2d 303, 312-13.
The purpose of the Act is set forth in Public Act 86 — 1477, which reads:
“AN ACT concerning school reform, amending named Acts.
Be it enacted by the People of the State of Illinois, represented in the General Assembly:
Section 1. The purpose of this amendatory Act of 1991 is to ratify and confirm the actions of the Board of Education of the City of Chicago *** in light of the decision of the Illinois Supreme Court in Fumarolo v. Chicago Board of Education, Docket No. 69558, opinion filed November 30, 1990, holding Public Act 85 — 1418 to be unconstitutional, pending further judicial action in that litigation and pending further action by the General Assembly amending Public Act 85 — 1418.” Pub. Act 86 — 1477, eff. January 11, 1991.
The Act creates new decision-making bodies having limited powers (local school councils, subdistrict councils, and a school board nominating commission) but expressly provides that “[t]he board shall exercise general supervision and jurisdiction over the public educar tion and the public school system of the city ***.” (Emphasis added.) (Ill. Rev. Stat. 1991, ch. 122, par. 34 — 18.) In the exercise of this general supervisory authority, the Board remains specifically empowered “ft]o divide the city into subdistricts.” (Emphasis added.) Ill. Rev. Stat. 1991, ch. 122, par. 34 — 18(7).
Defendants-appellees Interim Board took office in May 1989. The Interim Board was mandated by the Act to make educational improvements generally, and specifically to
“maximize the proportion of school district resources in direct support of educational, program, and building maintenance and safety services for the pupils of the district, and which correspondingly minimize the amount and proportion of such resources associated with centralized administration, administrative support services, and other noninstructional services.” (Emphasis added.) (Ill. Rev. Stat. 1991, ch. 122, par. 34— 43.1(A).)
In fact, the General Assembly directed the Interim Board to “undertake budgetary and expenditure control actions” for the 1989-90 school year which would carry out this mandate. Ill. Rev. Stat. 1991, ch. 122, par. 34-43.1(A).
Pursuant to this legislative directive, the Interim Board established a budget task force, made up of both outside educational experts and Board employees, to shape a 1989-90 budget that would maximize the proportion of expenditures going for direct educational services and minimize the proportion of expenditures going to centralized administration. The budget task force recommended budget reductions for administrative personnel of approximately $40 million dollars — or the elimination of approximately 500 positions. In particular, after analyzing the functions of subdistrict offices and the needs of the local school outlined in the Act, the budget task force recommended a reduction in the number of administrative subdistricts from 23 to no more than 11, or, alternatively, to as low as 6.
On August 11, 1989, the Interim Board adopted the budget task force’s recommendations and announced a reorganization plan featuring the elimination of 22 top-level administrative positions. Several departments were consolidated. Three field assistant superintendent positions were eliminated. Finally, the system of 23 subdistricts, each with its own district superintendent, was abolished. The Interim Board replaced that system with a far more streamlined system of 11 entirely new subdistricts, each with a “subdistrict superintendent,” a position with significantly different duties than had been vested in the old “district superintendent” position.
The majority opinion upholds the contention of the plaintiffs-appellants that there is a statutorily created contract between them and the Interim Board, and that this purported contract precluded the elimination of their former offices. The sole basis for this contention is a single sentence in the School Reform Act: “All persons serving as subdistrict superintendent on [the effective date of this amendatory act of 1988] May 1, 1989 *** shall be deemed by operation of law to be serving under a performance contract which expires on June 30, 1991 ***.” (Ill. Rev. Stat. 1991, ch. 122, par. 34-8.3(g).) The particular provision on which plaintiffs-appellants rely must be considered in its overall context and each word, clause or sentence should be given some reasonable meaning. When the Act is read as a whole, it clearly authorized the Interim Board to order the administrative reorganization that the superintendent plaintiffs-appellants claim breached their “contract.”
It is noteworthy that a provision of the School Code left unaltered by the Act expressly confers on the Board the power to “divide the city into subdistricts.” (Ill. Rev. Stat. 1991, ch. 122, par. 34 — 18(7).) Thus, as argued by defendants-appellees, the contention that the Interim Board was “without authority” to undertake its reorganization is belied by the very statute from which the superintendent plaintiffs-appellants’ alleged contractual right is derived.
Another pertinent provision in the Act defines a subdistrict as follows:
“ ‘Subdistrict’ means a geographic area of the school district formed by boundaries which are conterminous with the boundaries of any one of the elementary or high school administrative subdistricts into which the city is divided, as those elementary or high school administrative subdistrict boundaries existed on January 1, 1988, or as those subdistrict boundaries hereafter are changed by the board as provided in paragraph 7 of Section 34 — 18.” (Emphasis added.) Ill. Rev. Stat. 1991, ch. 122, par. 34-1.1.
Plaintiffs-appellants contend that the Interim Board lacked the authority to reorganize the subdistricts. However, this contention is refuted by the express language of the (amended) School Code. The contention is also refuted by the case law.
It is well settled that the Board of Education of the City of Chicago is not even limited to the powers expressly conferred upon it by statute. To the contrary, “[t]he Board of Education of the City of Chicago is a body politic and corporate created to perform governmental functions in connection with the education of children in the school district that consists of Chicago, and it has such powers as are expressly conferred, or such as may be necessary to carry into effect those granted by the legislature.” (Emphasis added.) Board of Education v. Chicago Teachers Union, Local 1 (1975), 26 Ill. App. 3d 806, 810.
It is a fundamental principle of government that one of the necessary powers of a governmental entity is the power to achieve economies through reorganization or elimination of unnecessary positions. The seminal Illinois case on this proposition is Fitzsimmons v. O’Neill (1905), 214 Ill. 494. Fitzsimmons was an employee of the City of Chicago covered by a State civil service law that provided that he could not be “removed or discharged except for cause” (Fitzsimmons, 214 Ill. at 503). Fitzsimmons was discharged when his position was eliminated and his duties redistributed because “the city and its officers *** were of the opinion, entertained by them in good faith, that the position was unnecessary and involved a useless expense.” (Fitzsimmons, 214 Ill. at 499-500.) The Blinois Supreme Court soundly rejected Fitzsimmons’ contention that his dismissal violated the civil service act. The court held that the civil service act did “not apply to a case where the incumbent is dismissed for want of funds, or in order to reduce expenses.” (Fitzsimmons, 214 Ill. at 503.) More fundamentally, the court emphasized that “[i]t certainly would be a harsh doctrine to hold that a city, or its officials, could not reduce their expenses by abolishing an unnecessary office, or refusing to make an appropriation for the salary of an office, when it was short of funds and did not need the services of the incumbent of such office.” (Fitzsimmons, 214 Ill. at 505.) This rule that governmental units have inherent authority to economize through reorganization even at the expense of employees protected against discharge except “for cause” continues to be the law in this State. See, e.g., Woolfolk v. Board of Fire & Police Commissioners (1979), 79 Ill. App. 3d 27, 31 (no violation of “for cause” requirement where police officers were discharged because their jobs were abolished).
Assuming, arguendo, that the Act established a contract between the superintendent plaintiffs-appellants and the Interim Board, the contract necessarily includes the Interim Board’s authority expressly conferred in the very same statute to reduce the number of subdistricts (and, hence, the number of district superintendents). It is well settled that “the law existing at the time and place of the making of the contract is deemed a part of the contract, as though expressly referred to or incorporated in it.” (Schiro v. W.E. Gould & Co. (1960), 18 Ill. 2d 538, 544; Local 165 v. Bradley (1986), 149 Ill. App. 3d 193, 211.) Thus, for example, in S & D Service, Inc. v. 915-925 W Schubert Condominium Association (1985), 132 Ill. App. 3d 1019, 1023, the plaintiff was held to have no right to possession of certain property under a lease because the statutory provision invoked by the defendants-appellees as the basis for terminating the lease was, as a matter of law, an implied term of the lease contract. Similarly, here, any contract between the superintendent plaintiffs-appellants and the Interim Board necessarily included as one of its terms the Interim Board’s statutory authority to eliminate their positions altogether.5
Another pertinent provision to consider is section 5 of Public Act 86 — 1477. This section ratified and confirmed all the acts of the Interim Board, such as the reduction in the number of subdistricts and the appointment of persons as subdistrict superintendent. Section 5 reads in relevant part:
“Section 5. All actions taken and proceedings conducted in accordance with The School Code, notwithstanding that such actions or proceedings were taken pursuant to Public Act 85— 1418, during the period beginning on May 1, 1989, and ending on the effective date of this amendatory Act of 1991 in a school district organized under Article 34 of The School Code by the school district’s interim board of education, board of education *** are hereby ratified and confirmed.” Pub. Act 86 — 1477, eff. January 11, 1991.
Thus, all past reorganization was ratified and confirmed. Therefore, the reduction in subdistricts from 23 to 11 was ratified and confirmed. No doubt should now exist as to the validity of the action.
The Fumarolo decision clearly shows that the Board’s motion for summary judgment should have been granted. (See Fumarolo v. Chicago Board of Education (1990), 142 Ill. 2d 54.) The decision in Fumarolo addressed the subject of whether or not legislation creates and vests private contractual rights between individuals and the Board. Originally, section 34 — 84 of the School Code of Illinois, deleted in the Act, stated that Chicago school principals became permanent in their positions following three years of satisfactory service after appointment. The plaintiff Chicago school principals alleged in Fumarolo that this statutory tenure provision was contractual and vested them with contractual rights. The supreme court of Illinois in Fumarolo rejected the allegation that the State statute vested contractual rights in the principals and wrote:
“As the Supreme Court in National R.R. Passenger Corp. v. Atchison, Topeka & Santa Fe Ry. Co. (1985), 470 U.S. 451, 466, 84 L. Ed. 2d 432, 446, 105 S. Ct. 1441, 1451, stated, ‘[T]he presumption is that “a law is not intended to create private contractual or vested rights but merely declares a policy to be pursued until the legislature shall ordain otherwise.” ’ ” Fumarolo, 142 Ill. 2d at 104.
A reading of section 34 — 8.3(g) (Ill. Rev. Stat. 1991, ch. 122, par. 34 — 8.3(g)) clearly shows that the State legislature did not intend to create private contractual rights between the subdistrict superintendents and the Board. A policy was established that subdistrict superintendents would be employed as if on a performance contract until June 30, 1991. The language of the statute states that the subdistrict superintendents shall be “deemed by operation of law to be serving under a performance contract.” Webster’s II, New Riverside University Dictionary 355 (1984) defines “deem” as “to consider or judge.” The plain meaning of the statutory language clearly shows that the statute did not establish contracts between the subdistrict superintendents and the Board. The arrangement between the parties was to be considered or judged to be a performance contract until the subdistrict superintendent was selected by the subdistrict council as prescribed by another section of the statute. Section 34 — 8.3 of the Act did not state that an employment contract between the Board and individual subdistrict superintendents was established. This interpretation of section 34 — 8.3(g) is consistent with the reasoning of Fumarolo.
Plaintiff’s attorney, James D. Montgomery, in proceedings at a hearing on motions pending before the trial court on October 16, 1990, recognized the importance of the statement of Representative Ellis Levin. The record of proceedings contains the following excerpts from Montgomery’s argument:
“MR. MONTGOMERY: The following legislative Section: ‘And unless such performance contract is renewed, the employment of such person shall terminate on June 30, 1991.’
So that initially the legislature made it expire in 1990. In the following section, some amendatory provisions, they among other things extended that contract for one year.
The Defendants claim that that language does not create a contract. They claim basically that it doesn’t create a contract largely because Ellis Levin, one of the legislatures [sic], in a comment at the time that the second year was added to the contract, made it clear that it was his position that this was not a contract and that the members of — the persons who held those positions did not get in it rights by virtue of that provision. Clearly that was his intent, and that was clearly his position.”
The trial judge considered his argument that the plain language of the statute clearly indicates a legislative intent to confer contractual rights on the basis of performance for a period of two years. The judge considered the language of the statute and found that both the statute in its entirety and the statements of Representative Levin indicated that no contract was created.
At the October 16, 1990, hearing, other pertinent argument which the trial judge heard included the following:
“MR. BAUM: ***
So the Board authority to terminate — to reduce the number of sub-districts was itself a term of any contract. It cannot be a breach of a contract to exercise authority conferred by that contract.
THE COURT: If that was the legislative intent, what was the reason why the specific language in regard to performance contracts was inserted in 8.3?
MR. BAUM: The purpose of the performance contracts, we do not have legislative history to describe it, but the purpose of the performance contracts is to prevent those individuals that the legislature designated from being terminated from their positions without cause as in a civil service arrangement; but that is not inconsistent with the ability to eliminate positions as parts of an administrative reorganization, and that’s clear from Illinois case law going back to 1905.”
In granting the defendants-appellees motion for summary judgment, the trial judge considered the pleadings, briefs, statutes, case law and arguments, and wrote a memorandum of opinion. Following are excerpts from the opinion:
“The Court finds that a more logical interpretation of Section 34 — 8.3 (g) is that Section is merely a statement of policy to be pursued subject to the Interim Board’s powers under Section 34 — 21.3 (a) to implement an annual school budget.
* * *
The mere reference to ‘performance contract’ in the Act does not suggest a legislative intent to create vested contractual rights. ‘[T]he presumption is that “a law is not intended to create private contractual or vested rights but merely declares a policy to be pursued until the legislature shall ordain otherwise.” ’ (National R.R. Passenger Corp. v. Atchison, Topeka & Santa Fe Ry. Co. (1985), 470 U.S. 451, 466, 84 L. Ed. 2d 432, 446, 105 S. Ct. 1441, 1451.) Thus, a party who asserts that a law creates contractual rights has the burden of overcoming the presumption that a contract does not arise out of a legislative enactment. (Fumarolo, 142 Ill. 2d at 104.) In determining whether a statute was intended to create a contractual relationship between the State and the affected party, courts must examine the language of the statute. (Dodge v. Board of Education (1937), 302 U.S. 74, 78, 82 L. Ed. 57, 61, 58 S. Ct. 98, 100.) In Fumarolo, the Hlinois Supreme Court reviewed what factors should be considered in distinguishing between legislative enactments merely creating statutory rights versus enactments creating contractual rights. Referring to Indiana ex rel. Anderson v. Brand (1938), 303 U.S. 95, 82 L. Ed. 685, 58 S. Ct. 443, our supreme court observed that:
‘[i]n Brand the Court found that a statute providing for teacher tenure created a contract between the State and the plaintiffs, teachers, because there was clear evidence of the legislative intent to contract. Indicative of such legislative intent was the fact that the word “contract” was used throughout the statute to describe the legal relationship between teachers and the State, that the act was a supplement to a preexisting statute requiring that teachers’ employment contracts be in writing and that the Indiana court had held that teachers’ rights to continued employment pursuant to the teacher tenure act were contractual.’ Fumarolo, 142 Ill. 2d at 105.
Section 34 — 8.3 (g) sets forth eight paragraphs and twelve subparagraphs which list the duties of subdistrict superintendents. The Court does not garner a legislative intent to award vested contractual rights from the fact that one of those paragraphs refers to a policy of awarding performance contracts. The instant Act is considerably different than the facts found in Indiana ex rel. Anderson v. Brand (1983), 303 U.S. 95, 82 L. Ed. 685, 58 S.Ct. 443, wherein the word ‘contract’ appeared ten times; the title of the Act was couched in terms of contract; and there was a detailed definition of the contractual relationship. between the parties.
Finally, the above analysis is compatible with the legislative intent of the statute as set forth in the legislative debates. In determining legislative intent, ‘Courts may examine the history of legislation and the course it has taken.’ (People v. Easley (1988), 119 Ill. 2d 535, 540.) Also, ‘[w]here the statutory language does not adequately convey the legislative intent, the courts may look to the legislative history’, including House and Senate debates. (C.S. Johnson Co. v. Champaign National Bank (1984), 126 Ill. App. 3d 508, 510.) During the House of Representative’s debates on the 1989 Amendment to the School Reform Act, Representative Levin, a sponsor of the Act, left no doubt as to the intent behind section 34 — 8.3 (g) which had been enacted one year earlier. Representative Levin stated:
‘That Section 34 — 8.3 (g) the provision we put in last year that provides that performance contracts established by operation of law ... that provision was not intended to preclude the interim board from reorganizing the number of Districts Superintendent positions or does it require the Interim Board having reorganized the number of districts to pay the previous occupants of the District Superintendent position the salaries that they would have gotten if they should have continued in their positions.’ ”
The judgment of the trial court granting defendants-appellees’ motion for summary judgment should be affirmed.
Section 34 — 2.5 provides for the future selection of subdistrict superintendents or the renewal of contracts of existing subdistrict superintendents by the elected subdistrict council.
The general rule that a relevant statutory provision is an implied term of any contract applies with even greater force here, because the provision being invoked is a part of the very same statute, the amended School Code, alleged to have established the contract. It is a fundamental principle of statutory construction, of course, that, “[a] statute should be evaluated as a whole; each provision should be construed in connection with every other section.” Miller v. Department of Registration & Education (1979), 75 Ill. 2d 76, 81.