Chester v. Harper Woods School District

273 N.W.2d 916, 87 Mich. App. 235, 1978 Mich. App. LEXIS 2666

• Court: Michigan Court of Appeals
• Decided: November 27, 1978
• Docket: Docket 77-2499
• Status: Published

Opinions

C. W. Simon, J.

Plaintiffs are three schoolteachers with tenure in the employ of defendant school district. In 1972 they were among those laid off when a drop in district revenue caused by an adverse property tax ruling and a millage defeat precipitated a necessary reduction in personnel. When financial conditions improved, however, new positions were created, but the school board appointed new, probationary teachers to fill the vacancies.

Mr. Chester had taught elementary physical education in the Harper Woods School District for 21 years. He was certified to teach all subjects at the seventh and eighth grade levels, and history, English, French and biology for grades 9 through 12. While he and another elementary physical education teacher, Mr. Goodwin, were both affected by the layoff, the latter being assigned to an elementary classroom, Mr. Goodwin, because of a request made pursuant to a collective bargaining agreement between the school district and the teachers association, was reassigned to fill the only vacancy which later arose in elementary physical education. When two openings occurred in English, Mr. Chester was considered for both but not approved because one involved a developmental language lab and the other a course in drama. It was felt by the school board that his 21-year absence from teaching English at the secondary level rendered him unqualified to handle either of these programs which were to be implemented.

Mr. Stevens had been associated with the Harper Woods School District for 14 years, variously teaching general science for grades 8 through 12, 9th grade civics, 11th grade world history, 8th grade home mechanics and 9th grade auto shop, and coaching varsity swimming and football. He was certified to teach all subjects at the 7th and 8th grade levels, science and history for grades 9 through 12 and physical education for grades kindergarten through 12. When two positions opened, one teaching 7th and 8th grade science and 11th and 12th grade chemistry and the other teaching 7th grade mathematics and general science, he was considered for both but rejected as unqualified in both chemistry and mathematics. Mr. Stevens’ endorsement was restricted to general science and he had had no undergraduate mathematics preparation.

Mr. Rieckhoff, before coming to Harper Woods, had been in charge of the junior high instrumental music program in Benton Harbor for 13 years. While employed by the Harper Woods School District he taught elementary as well as junior and senior high band, junior high music appreciation and one semester of girls’ vocal music. The vocal music program was scheduled for another semester but discontinued because of student disinterest in the instructor’s program. He was certified to teach all subjects in grades 7 and 8, music and social studies in grades 9 through 12 and music in kindergarten through 6th grade. When a vacancy teaching vocal music at the elementary level arose, he was considered but determined unqualified. Apparently, Mr. RieckhoiFs certification to teach vocal music was not within his file at the time of the board’s decision and the nonsuccess of his prior attempt at teaching the course caused them to conclude that he was not competent in the area.

After new teachers were hired to fill each of the vacancies, plaintiffs appealed the board’s decisions to the tenure commission, charging that the action of the school board violated the teachers’ tenure act. MCL 38.71 et seq.; MSA 15.1971 et seq. They argued alternatively that they were either certified and qualified for and thereby, under MCL 38.105; MSA 15.2005, entitled to the positions created, or, if not, that the school board deliberately reshuffled class assignments so as to create vacancies for which they were not qualified.

The tenure commission, with two dissenters, reversed the decisions of the school board. In the controlling opinion was stated:

"These Commissioners are aware of the opportunity school boards have, if they are so inclined, to circumvent the provisions of the Tenure Act by juggling assignments and manipulating course offerings in a manner which would cause the layoff or block the recall of a tenured teacher. The result of such action is the effective dismissal of a tenured teacher without observing the due process provisions of the Act. Upon appeal, we will scrutinize any such complaint to determine if a board’s actions were made in good faith, and will discourage the employment of any new teacher when tenured teachers are on layoff.

"It is our finding, in the present cause, that Appellee did deny appellants Chester, Stevens and Rieckhoff the 'first vacancy’ for which they were certified and qualified to teach, and did attempt to block the re-employment of Chester (and) Stevens * * * by manipulating class schedules.”

And, this decision was upheld by the Wayne County Circuit Court. The dissenters on the tenure commission had held that plaintiffs were either not certified or not qualified to teach in the school year program as it was established. They opined:

"(T)he manner in which the recall of teachers was effected was a studied, deliberate, systematic process by which all facets of the teachers [sic] background and experience were considered prior to a decision on recall being made.

"These Commissioners rule that the Harper Woods School District has properly executed its duties and is in compliance with [MCL 38.105; MSA 15.2005] by exerting its discretion as to qualification in the recall of teachers on lay off due to necessary reduction of personnel.” (Emphasis in original.)

These opinions relate a primary conflict which is the central issue raised here on appeal, whether the tenure commission has jurisdiction to review de novo decisions of a school board with regard to the reappointment of tenured teachers to vacancies which arise after a necessary reduction in personnel has caused their layoff.

Plaintiffs’ claim to the teaching vacancies is based upon MCL 38.105; MSA 15.2005; which provides:

"Any teacher on permanent tenure whose services are terminated because of a necessary reduction in personnel shall be appointed to the first vacancy in the school district for which he is certified and qualified.”

Even in this context, however, "certified” and "qualified” are not synonymous terms. The term "qualified” contemplates some level of competence above and beyond mere certification, the criteria of which must be established by the school board. Holton Public Schools v Farmer, 77 Mich App 765, 772; 259 NW2d 219 (1977) (M.B. Breighner, J., concurring). Accord, MCL 380.1231(1); MSA 15.41231(1) (formerly MCL 340.569; MSA 15.3569); Anderson v Harper Woods Public School Dist, 74 Mich App 227; 253 NW2d 718 (1977).

Where a school board is acting in its quasi-judicial capacity for removal of teachers for cause, its powers are greatly circumscribed by the teachers’ tenure act. "Discharge or demotion of a teacher on continuing tenure may be made only for reasonable and just cause,” MCL 38.101; MSA 15.2001, and only after providing a hearing which accords with MCL 38.102; MSA 15.2002 and MCL 38.104; MSA 15.2004. Further, MCL 38.137; MSA 15.2037 vests the tenure commission with such powers as are necessary to carry out and enforce the act’s provisions, and MCL 38.139; MSA 15.2039 charges it with the duty of standing "as a board of review for all cases appealed from the decision of a controlling board”. Review is de novo. Long v Board of Education, Dist No 1, Fractional, Royal Oak Twp and City of Oak Park, 350 Mich 324; 86 NW2d 275 (1957); Rehberg v Board of Education of Melvindale, Ecorse Twp School Dist No 11, 345 Mich 731; 77 NW2d 131 (1956). And, any final decision of a controlling board under the act is reviewable. MCL 38.121; MSA 15.2021. Bennett v City of Royal Oak School Dist, 10 Mich App 265; 159 NW2d 245 (1968), lv den, 381 Mich 755 (1968).

Thus, where the question is whether a tenured teacher may be dismissed for incompetence or improper conduct, he is entitled to a hearing before the school board and de novo review by the commission. See Rehberg v Board of Education of Melvindale, Ecorse Twp School Dist No 11, supra. This serves the purpose of the teachers’ tenure act which is "to eliminate capricious employment practices by school boards and protect teachers from arbitrary and unreasonable dismissals”. Pounder v Harper Woods Board of Education, 72 Mich App 717, 723; 250 NW2d 504 (1976), modified, 402 Mich 91; 260 NW2d 287 (1977), reh den, 402 Mich 960 (1978).

Where, however, the question is whether, because of economic necessity, a particular teacher should be laid off in the first instance, he is not entitled to either notice of the charges against him or a hearing before the controlling school board. Such would constitute a useless gesture since neither his conduct nor performance is being called into question. Steeby v School Dist of the City of Highland Park, 56 Mich App 395; 224 NW2d 97 (1974). Here, review by the tenure commission would be limited to "whether the [controlling] board of education, under the guise of a 'necessary reduction in personnel’, used circuitious methods in removing the [teacher] from its school system without the protections afforded by the teachers’ tenure act”. Freiberg v Board of Education of Big Bay De Noc School Dist, 61 Mich App 404, 416; 232 NW2d 718 (1975). Goodwin v Board of Education of the School Dist of the City of Kalamazoo, 82 Mich App 559; 267 NW2d 142 (1978). This is consistent with our reading of MCL 38.121; MSA 15.2021 which provides that "[a] teacher who has achieved tenure status may appeal any decision of a controlling board under this act”. Since the act is silent with regard to what constitutes a "necessary reduction in personnel” such issue is not appealable unless cast in terms which allege that the "necessary reduction in personnel” was not made in good faith but amounted to a subterfuge to avoid the act’s protections.

The case at bar, however, involves not the layoff but the reappointment of teachers after a "necessary reduction in personnel”. Plaintiffs make no claim that the reduction was a subterfuge to avoid the teachers’ tenure act. Rather, they contend that they have been denied their right of first recall under § 5 thereof, MCL 38.105; MSA 15.2005. They claim that the decision of the school board to fill the available vacancies with probationary teachers violated the act.

In this posture it is clear that plaintiffs’ claim with regard to the board’s decision is reviewable by the tenure commission. It falls squarely within the language of MCL 38.121; MSA 15.2021, "decision of a controlling board under this act”. Accord, Freiberg v Board of Education of Big Bay De Noc School Dist, supra. However, while as in Long and Rehberg, review would be de novo, the tenure commission is only free to reexamine the facts as found by the school board. It may no more redefine the criteria of "qualification” set by the board than outline new standards of "certification” for the state. To set the parameters of qualification to fill vacancies is a function of the school board which may not be usurped by the tenure commission. It is a legislative rather than a quasi-judicial function.

"School districts, though State agencies, are governed locally and their controlling boards are chosen by the electorate.” Rehberg v Board of Education of Melvindale, Ecorse Twp School Dist No 11, Wayne County, 330 Mich 541, 547; 48 NW2d 142 (1951). It is the school board which determines the criteria of teacher qualification, Holton Public Schools v Farmer, supra, because it is the local board, not the State Tenure Commission, who is charged with the duty of hiring duly qualified teachers both initially and after layoff, MCL 380.1231; MSA 15.41231 (formerly MCL 340.569; MSA 15.3569); Anderson v Harper Woods Public School Dist, supra. In our opinion, construction of the tenure law in harmony with the expressed legislative policy to protect teachers from arbitrary and unreasonable practices does not permit a construction so liberal as to entirely destroy the right of a local board to independently determine matters of policy in the administration of local school affairs. Thus, in reviewing the determination of a school board that a tenured teacher is not qualified for an available position, the tenure commission is constrained to apply the criteria of qualifications set out by the school board unless that criteria itself is either arbitrary, unreasonable or promulgated in bad faith. To further expand the jurisdiction of the commission would be to render it the legislator of all teacher qualification at the expense of local control. If the Legislature intended to deprive local governing bodies of legislative control over teachers’ qualification, that intent should have been definitely stated in the tenure act. Cf., Rehberg v Board of Education of Melvindale, Ecorse Twp School Dist No 11, Wayne County, supra.

Here, with regard to the criteria adopted by the school board, the dissenting members of the tenure commission noted that:

"Dr. Babich testified that a personnel procedure was formulated to assist him and other members of the administrative staff in making such decisions. He further testified that the procedure was uniformly and consistently followed in determining the qualifications of all teachers for a vacancy. In determining which teacher was certified and qualified, consideration was given to such items as the teacher’s certification, the teacher’s degree, whether or not the teacher had pursued successfully curricula in specific subject areas for the potential teaching assignment, the teacher’s endorsement from an appropriate state agency, evidence of further reinforcement of original endorsement, and demonstrated competency within his or her assigned level within the school district.”

The majority of the commission completely disregarded this basis of qualification in favor of its own. Without ever considering whether the criteria adopted by the board was arbitrary, unreasonable or promulgated in bad faith, the majority erroneously chose to view qualification purely from a perspective of teaching experience. Indeed, its opinion is replete with reference to "new to-rees”. For example, with regard to Mr. Chester they state:

"The two English vacancies in dispute were filled by two newly hired, newly graduated teachers. Surely Chester was at least as qualified as a new hiree who had no teaching experience.”

This we feel was improper.

While we do not hold its criterion unsuitable, the tenure commission failed to accord the board’s determination of qualification the deference it was due. Although review of the facts is de novo, the commission is not free to substitute its idea of qualification for that of the board. Where the local board’s definition is neither arbitrary, unreasonable nor promulgated in bad faith, it is binding upon the tenure commission. Only the facts may be found anew.

Moreover, MCL 380.1282; MSA 15.41282 (formerly MCL 340.583; MSA 15.3583) provides:

"The board of a school district shall establish and carry on the grades, schools, and departments it deems necessary or desirable for the maintenance and improvement of the schools, determine the courses of study to be pursued, and cause the pupils attending school in the district to be taught in the schools or departments the board deems expedient.”

Not unlike the determination of qualification, this grant of authority to the local board carries with it a commitment that the power will be exercised by those duly elected by the voters of the school district. Absent a finding that a decision of the board with regard to class scheduling was arbitrary, unreasonable or made in bad faith, it may not be overturned by the tenure commission.

In the case at bar, the opinion of the tenure commission infers that class schedules were arbitrarily manipulated to block plaintiffs’ re-employment, but such finding is predicated upon an erroneous determination of qualification. Before any finding of manipulation can be made, it must first be determined whether the school board’s criteria for qualification are either arbitrary, unreasonable or promulgated in bad faith; if not, whether, applying the school board’s standards, the complaining teachers are qualified for any of the present vacancies; and, if not, whether they would have been qualified for vacancies which would have occurred had there been no rescheduling. Since such determinations were not made, any finding of manipulation was premature. Therefore, the proper disposition of this case is to reverse and remand to the tenure commission for a determination of whether, in setting their standards for reappointment, the school board acted arbitrarily, unreasonably or in bad faith. If not, the criteria adopted by the school board should control resolution of the subsequent issues.

Finally, it is of no moment that the school board examined "demonstrated competency” as a basis for qualification without affording a prior hearing. Where, as here, the status of the complaining teachers is unaffected and prompt, adequate administrative review is provided, MCL 38.121; MSA 15.2021, due process is not offended. Fusari v Steinberg, 419 US 379; 95 S Ct 533; 42 L Ed 2d 521 (1975), reh den, 420 US 955; 95 S Ct 1340; 43 L Ed 2d 433 (1975).

Reversed and remanded to the tenure commission for reconsideration consistent with this opinion.

Bashara, P.J., concurred.