Plymouth-Canton Community Schools v. State Tenure Commission

457 N.W.2d 656, 435 Mich. 76

• Court: Michigan Supreme Court
• Decided: July 2, 1990
• Docket: 83160, (Calendar No. 5)
• Status: Published

Opinions

Brickley, J.

This case presents the question whether procedural due process is denied a public school teacher accused of misconduct when the attorney who sits as hearing officer at the teacher’s pretermination hearing before the local board of education is a member of the same law firm as the attorney representing the charging party, in this case the superintendent. We answer this question in the negative and remand this case to the State Tenure Commission for review de novo of the merits of the teacher’s administrative appeal.

A teacher’s pretermination hearing is not a full, adjudicatory hearing to which a full range of procedural safeguards attaches. As stated by the United States Supreme Court in Cleveland Bd of Ed v Loudermill, 470 US 532, 545-546; 105 S Ct 1487; 84 L Ed 2d 494 (1985), the purpose of a pretermination hearing, unlike a full post-termination adjudicatory proceeding, is not to

definitively resolve the propriety of the discharge [but to provide] an initial check against mistaken decisions — essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action.[¹]

I

FACTS AND PROCEEDINGS

Scott Kurtz is a tenured teacher who has been employed by the Plymouth-Canton Community School District since 1976. In November 1982, while Kurtz was teaching at Central Middle School, the superintendent of the school district filed written charges against him, alleging that he violated the district’s policy regarding the use of physical force in the restraint of an eleven-year-old student. The board of education adopted a resolution to accept the charges and to proceed in accordance with the provisions of the teacher tenure act.² The charges and the resolution alleged that the inappropriate use of corporal punishment by Kurtz amounted to reasonable and just cause for suspension. The board provided Kurtz with a copy of the charges, the board’s resolution suspending him, and a notice of hearing.

Kurtz requested a private hearing, and the hearing commenced on December 15, 1982. The board adopted a resolution³ appointing attorney Dennis Pollard as hearing officer. William Albertson, a member of the same law firm as Pollard, represented the superintendent at the hearing. The president of the board of education noted on the record that the board retained the right to overrule Pollard’s rulings on motions or evidentiary objections and that the board retained the exclusive authority to evaluate and judge the facts.

Kurtz objected to the procedures adopted by the board. He contended that the board’s delegation of power to Pollard was excessive, in that it vested in the hearing officer the discretion to rule on procedural and evidentiary matters unless overruled by a majority vote of the board. He requested permission to conduct a voir dire examination of Pollard and moved for Pollard’s disqualification because of his relationship with Albertson. He also moved to conduct voir dire examinations of members of the board and to recuse those found unable to render a fair and impartial ruling on the issues presented. In an opinion and order dated January 12, 1983, hearing officer Pollard denied the objections raised to the procedures adopted by the board, denied the motion to examine the hearing officer, and granted, in part, the motion to examine the members of the board.⁴

During the hearing, Kurtz and several other witnesses testified regarding the incident which gave rise to the present charges. At the conclusion of the hearing, both parties submitted proposed findings of fact and conclusions of law to the board. Pollard attended the board’s deliberations, answered questions posed by individual board members, and took notes, which he used to prepare a draft decision.

On February 21, 1983, the board issued its decision.⁵ The board found that Kurtz initiated the physical confrontation with the student and that Kurtz made no attempt to use available alternate means, such as directing the student to leave the classroom or using the classroom telephone to request assistance. The board concluded that Kurtz violated school policy on the use of corporal punishment that amounted to a breach of professional ethics and resulted in injury to a student through the use of unreasonable force. The board suspended Kurtz without pay for the remainder of the second semester of the school year and for the first semester of the following year, with no seniority to accrue during the suspension. As a precondition to his return to employment, Kurtz was ordered to submit to a psychiatric evaluation and to present to the board a recommendation that he was psychologically fit to resume his classroom responsibilities.

Kurtz appealed to the State Tenure Commission, claiming that the procedures adopted by the board denied him due process and that the record did not support the board’s finding of just and reasonable cause for the imposition of discipline. Kurtz specifically objected to the board’s selection of Pollard as hearing officer due to his professional relationship with Albertson. He also objected to Pollard’s attendance at the board’s deliberations.

Additional testimony was taken at a hearing held before the Tenure Commission on April 25, 1983. Pollard acknowledged that the school district had been a client of his firm for several years and opined, as did Superintendent John Hoben, that the board members were aware that he and Albertson were members of the same law firm. Although Pollard did not draft the charges against Kurtz, he provided a letter of advice to the board regarding the legal ramifications of the charges and an overview of the tenure process and prepared the resolution outlining the role of the hearing officer which was later adopted by the board.

Pollard explained that, prior to the board’s deliberations, board members were provided with copies of the transcripts as well as with copies of proposed findings of fact and conclusions of law prepared by the parties. During the deliberations, Pollard took notes, discussed the charging party’s burden of proof, and advised the board on legal points which arose. Pollard stated that the conclusions reached after the hearing were arrived at solely by the board. Following the board’s deliberations, Pollard prepared, and the board adopted, a draft decision based on the board’s findings.

The testimony of the members of the board of education was taken by deposition and submitted to the commission following the hearing. Board member Kirchgatter testified that Pollard only participated in the board’s discussion when asked to clarify a point of law. Board member McClendon stated that Pollard was engaged because a competent attorney was needed to carry forth a proper hearing. He further stated that the board went through the testimony and spent a lot of time discussing the case, and that the decision drafted by Pollard was consistent with the findings made by the board and was reviewed by the board before it was adopted. McClendon testified that Pollard did not comment on the strength of the evidence or the credibility of witnesses, or suggest appropriate discipline. He concluded that "certainly the arrival at what was fact and what was not fact was purely a function and an operation of the Board of Education, and was not done by Mr. Pollard.” Board member Thomas testified that while the board’s deliberation was guided by a series of questions formulated by Pollard, Pollard did not participate in the discussion or resolution of those questions.

The Tenure Commission issued its decision on November 8,1984. The commission stated that the use of counsel in a dual role had not met with unqualified approval, but that school boards are permitted to employ one counsel in a dual role in adjudicative proceedings. The commission concluded, however, that because the board members were aware that Pollard and Albertson were members of the same law firm, Pollard’s presence during the controlling board’s deliberations violated due process. The commission also concluded that the subsequent provision of a hearing de novo was not adequate to remove the taint of the initial decision made by a biased tribunal and that Kurtz must be reinstated and paid all salary lost. The commission did not reach the question whether the record established just and reasonable cause to support the discipline imposed by the board.

The board of education filed a petition for review in Ingham Circuit Court. Following a hearing, the court issued a written opinion concluding that the commission’s decision "that Mr. Kurtz did not receive a fair hearing was not a substantial and material error of law.” The court did not address whether the evidence presented to the board supported the discipline imposed.

The Court of Appeals reversed and remanded the case to the Tenure Commission. The Court stated:

In Niemi v Kearsley Bd of Ed, 103 Mich App 818, 821-823; 303 NW2d 905 (1981), the attorney who regularly served as the controlling school board’s advisor represented the charging party in disciplinary proceedings before the same board. In deciding whether this practice was inherently unfair, we recognized that the attorney’s dual role of representing the charging party and advising the board carried with it the potential for prejudice, but concluded that the practice was not one that violated principles of due process per se. 103 Mich App 821-822.

We again decline to hold that the involvement of attorneys from the same firm in a single administrative proceeding, with one attorney acting in an advisory capacity and the other attorney acting in a representative capacity, per se constitutes a violation of due process of law. Since we find nothing in this particular record to otherwise substantiate Kurtz’ claim of unfairness, we reverse the circuit court order as a matter of law. Pollard did not serve as a decisionmaker, as the controlling board retained the power to decide the case on the merits. Kurtz does not allege actual bias on the part of an individual board member or on the part of the board as a whole. There is no evidence to show that Pollard had a pecuniary interest in the outcome or is enmeshed in other matters involving the school district. [166 Mich App 331, 339; 419 NW2d 783 (1988).]

The Court remanded the case to the Tenure Commission for an evaluation of the merits of the disciplinary action taken by the board. Id., pp 339-340.

We granted leave to appeal, 431 Mich 905 (1988), and now affirm the judgment of the Court of Appeals.

ii

In Loudermill, supra, the Supreme Court held that tenured public employees must be afforded some sort of pretermination hearing. The Court then considered the qualities such a hearing must possess, given the availability of comprehensive postremoval procedures, in order to satisfy the tenured employee’s right to due process.

The tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present his side of the story. To require more than this prior to termination would intrude to an unwarranted extent on the govern-merit’s interest in quickly removing an unsatisfactory employee. [Id., p 546. Citations omitted; emphasis supplied.]

The Court thus concluded that

all the process that is due is provided by a pretermination opportunity to respond, coupled with post-termination administrative procedures as provided by the Ohio statute. [Id., pp 547-548. Emphasis supplied.]

The statutory scheme in Ohio, like our teacher tenure act, provided for a full post-termination administrative appeal followed by judicial review.⁶ Id., pp 539-540, n 6. The pretermination hearing, in such a system,

need not definitively resolve the propriety of the discharge. It should be an initial check against mistaken decisions — essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action. [Id., pp 545-546. Citations omitted; emphasis supplied.]

See also Brock v Roadway Express, Inc, 481 US ; 107 S Ct 1740; 95 L Ed 2d 239 (1987) (emphasizing that the pretermination hearing need be no more than an " 'initial check against mistaken decisions’ ” where expeditious review is available) (plurality opinion, Marshall, J.).

Defendant Kurtz has not demonstrated that the mere engagement of Pollard as hearing officer violated his pretermination due process rights under Loudermill.7 He has not shown that because of Pollard’s participation he received an inadequate explanation of the case against him, or that Pollard’s evidentiary rulings were in fact so skewed in favor of the charging party that he (Kurtz) was not provided an "opportunity to present his side of the story.” Id., p 546. It is quite clear from the record that Kurtz received more than adequate notice of the charges against him and was provided ample opportunity to respond to those charges.

Furthermore, assuming that the Loudermill requirements should be expanded when factual disputes are involved in order to provide an employee with "a fair opportunity before discharge to produce contrary records or testimony, or even to confront an accuser in front of the decisionmaker . . .,” id., p 553 (Brennan, J., concurring in part and dissenting in part), it cannot be denied that Kurtz took full advantage of his opportunity to testify and to confront witnesses. See also Roadway Express, supra, p 269 (Brennan, J., concurring in part and dissenting in part).

hi

Notwithstanding the fact that Kurtz’ pretermination hearing comported with the standards set forth in Loudermill, the dissent argues that Kurtz nevertheless was not afforded due process of law because he was denied his "right to an impartial decisionmaker.”⁸ We agree with the conclusion of the Court of Appeals, however, that Pollard, alleged to be the "decisionmaker” biased against Kurtz, was simply not a decisionmaker in this case.

A

Uncontroverted testimony presented to the Tenure Commission shows that Pollard and the board members clearly understood that the judgment on the charges against Kurtz was to be made by the board alone. Kurtz has not shown that Pollard’s actions so interfered with Kurtz’ ability to present his version of the facts that the board was "not 'capable of judging [the] particular controversy fairly on the basis of its own circumstances.’ ”⁹ For example, Kurtz has not demonstrated that Pollard’s evidentiary rulings precluded the board from being able to fairly adjudicate the matter before it, nor that Pollard attempted (with or without success) to persuade the board to decide against Kurtz. (Likewise, Kurtz does not contend that the statutory requirement of the teacher tenure act that a tenured teacher may only be dismissed or demoted upon a majority vote of board members¹⁰ was in effect violated by Pollard’s overt or covert manipulation of votes.) Before the commission, Pollard vehemently denied having expressed an opinion to board members that the evidence adduced at the hearing substantiated the charges against Kurtz or that a particular penalty was appropriate. Testimony of individual board members also indicates the limited nature of Pollard’s participation.¹¹ In short, the picture of the board’s deliberations regarding Kurtz’ case painted by those present reveals that the board members had studied the transcripts of the hearing, that a lengthy discussion was held, and that Pollard’s role was narrowly circumscribed. As noted above, the extensive record developed at the hearing indicates that Kurtz was offered, and accepted, the opportunity to set out his version of the incident from which the charges arose. In sum, there is no proof that Pollard actually participated in the board’s decision.

B

Mr. Kurtz and the dissent in effect urge us to treat Pollard as a constructive decisionmaker. In our opinion, Pollard’s evidentiary and advisory activities, standing alone, do not justify the adoption of this fiction.

According to the dissent,

[tjhere is simply no way to determine the extent to which the hearing officer’s participation in the board’s decision making may have influenced the ultimate decision of the board. The deliberations of a controlling board must be free from improper influence by either party. Once the hearing officer attended and participated in the board’s deliberations by offering legal advice, the potential for bias was neither remote nor insubstantial.

Such a threat to the independence of the decision-making body by an attorney with a direct connection to the charging party does not further fair adjudicative procedures, be they mandated by statute or constitution, and certainly does little to preserve the appearance of fairness. Our system of justice will not tolerate such a risk.[¹²]

Imputing a probability of "improper influence” to Pollard’s presence, where the record not only fails to suggest such a state of affairs but plainly disproves it, might be justified on policy grounds if one could assume (1) that local boards are weak and susceptible to influence, and (2) that Machiavellian hearing officers have some strong incentive to place the actual outcome of the hearing above ethical and professional considerations and are therefore likely to abuse their positions to influence the proceedings for the benefit of the charging party represented by the officer’s professional affiliate.

Regarding (1), such an assumption appears at odds with the dissent’s own belief that one can expect a school board to approach impartially tenure charges which are brought by its superintendent, notwithstanding the ongoing relationship between school boards and superintendents, and notwithstanding the board’s probable prior knowledge of any employment dispute which has not been resolved prior to removal proceedings.¹³ The apparent inconsistency lies in the dissent’s willingness to assume both that board members can remain appropriately detached from the entreaties of the very superintendent chosen by the board as its source of educational expertise and information about school related events, while at the same time assuming that the board in this case could not resist the influence of its hearing officer.

Even assuming, however that board members are likely to be vulnerable to improper outside influence, we are not persuaded to accept assumption (2) above — that a hearing officer affiliated with the attorney representing the superintendent is likely to have sinister motives.

The dissent appears to contend that Pollard had a pecuniary interest in the outcome of Kurtz’ hearing. The dissent suggests that there exists a clear "potential for the hearing officer’s advice to the board being colored by his pecuniary interest in continuing good relations between the school board and his firm.”¹⁴ It is true, as the dissent observes,¹⁵ that the attorneys had a pecuniary interest in participating in the hearing. However, this fact does not entail that the attorneys had a financial interest in a given outcome. The proposition that the hearing officer needed to aid the charging party in order to curry favor with the board itself implies that the board had already communicated to the officer an intent or disposition to rule for the charging party, thus undercutting once again the dissent’s assertion that school boards can be trusted to approach tenure matters impartially. In addition, the dissent does not offer compelling reasons why "the hearing officer might have been more likely than an independent adjudicator to advise the board that the argument or evidence presented by his partner was sufficient to meet legal or factual burdens.”¹⁶

We agree with the Court of Appeals that there is no evidence in the record to support the conclusion that Pollard had a pecuniary interest in the outcome of Kurtz’ hearing.

In our opinion, the relationship between the attorneys, standing alone, is unlikely to cause the officer to favor the party represented by his professional associate or to imperil a teacher’s due process rights under Loudermill.17 Trained attorneys in the position of Mr. Pollard, retained to help the district avoid running afoul of the law, are no less likely to render dispassionate rulings than lay board members entertaining evidentiary requests from and considering actions taken by their handpicked superintendent.¹⁸ Moreover, such attorneys are, for the sake of their ongoing relationships with their clients, the school districts, unlikely to preclude teachers from presenting evidence. If evidentiary rulings deprive a teacher of the right to respond to the charges, an attorney might subject the board to liability for violating the teacher’s due process rights guaranteed by Loudermill; and, if evidence not admitted before the school board subsequently prompts the Tenure Commission to reverse the board’s decision, the attorney could render the district liable for back pay.¹⁹

The dissent accurately observes that the board could have selected another attorney from another law firm to serve as its hearing officer and legal advisor.²⁰ Its failure to do so, however, does not affect the constitutionality of the procedures followed at Mr. Kurtz’ hearing. Although we disagree with the suggestion in the dissenting opinion that it is incumbent upon us to hypothesize a reason for the school board’s choice of attorneys,²¹ we observe that it is not uncommon for clients to continue business relations with attorneys who, through prior service, have gained the clients’ trust and confidence.

Furthermore, we are unmoved by the fact that the same entity retained and paid both attorneys,²² for any two attorneys representing the superintendent and the board will be appointed and paid by the same source — the school district — whether the attorneys are professional affiliates or total strangers.

In sum, the dissent has chained together several unjustified presumptions en route to the conclusion that Pollard’s participation per se worked a violation of due process. The dissent has not identified any compelling reason, nor can we envision any, why Pollard should be presumed to have been financially interested in the outcome of the hearing. It has not adequately explained why Pollard should be presumed to have been a decisionmaker when the testimony at the Tenure Commission clearly shows that he was not, and, therefore, the dissent has failed to make a case that any bias whatsoever, let alone "unconstitutional” bias should be presumed in this case. Indeed, if any "bias” is likely to exist on the part of Messrs. Pollard and Albertson, it is toward their common client — the school district. Attorneys do not have clients to serve their partners; they have partners to serve their clients.

IV

Less than four years ago, we considered a claim by a public school teacher who challenged the procedure employed at his pretermination hearing before the school board on due process grounds. Ferrario v Escanaba Bd of Ed, 426 Mich 353; 395 NW2d 195 (1986).

In Ferrario, we determined that the plaintiff had not established a constitutional violation. Although Ferrario postdated Loudermill, we did not mention Loudermill in our discussion of the plaintiff’s due process claim. Loudermill notwithstanding, we suggested that a plaintiff alleging bias on the part of the school board might establish a due process violation at the pretermination phase of a teacher tenure proceeding by showing that "the risk of unfairness was intolerably high or that the probability of unfairness is too high to be constitutionally tolerable.” Ferrario, supra, p 380. The question just how high the probability of bias or unfairness must rise before a tenure hearing before the board will be deemed to have worked a violation of a teacher’s right to procedural due process was not answered; Ferrario did not define precisely what circumstances, if any, could support such a conclusion, because the record did not substantiate Ferrario’s claim of unconstitutional bias.

Because we conclude that Pollard was not a decisionmaker in this case and that, for the reasons set forth above, the risk of unfairness in Kurtz’ pretermination hearing was not of constitutional magnitude, Ferrario is of no help to Mr. Kurtz. We therefore save for another day the question whether, and to what extent, Loudermill and Ferrario are in conflict.

V

For the reasons set forth above, we conclude that Kurtz was not deprived of his property interest in continued employment without due process of law. We affirm the decision of the Court of Appeals and remand this case to the State Tenure Commission for review of the merits de novo.

Riley, C.J., and Levin and Griffin, JJ., concurred with Brickley, J.

1 The dissent fails to heed the marked difference in purpose between the pre- and post-termination hearings and proceedings, erroneously, to analyze this case as if the conduct complained of by the teacher had taken place at a full, adjudicatory, post-termination proceeding.

2 MCL 38.71 et seq.; MSA 15.1971 et seq.

3 The resolution stated, in part:

Whereas, no one on the Board is an attorney or otherwise trained in ruling on evidentiary and other issues of law that may arise at such a hearing;

Now, therefore, be it resolved that the rules of evidence that shall be followed in this hearing shall be those set forth in Sections 75 through 78 of the Administrative Procedures Act for the State of Michigan.

Be it further resolved that the Board hereby names Dennis R. Pollard as its counsel during this hearing and authorizes him to make rulings of law on its behalf on any motions that may be made or filed, as well as evidentiary objections; and

Be it further resolved that the Board retains the right at all times to overrule his rulings if in its opinion the rulings are inappropriate or incorrect; and

Be it further resolved that barring a resolution so overruling him, his rulings shall be the rulings of this Board on such matters and accorded the full weight that is appropriate to this Board’s ruling; and

Be it further resolved, that, notwithstanding this delegation of authority to counsel, the Board shall retain the exclusive authority to evaluate and judge the facts that may be introduced into evidence and to exercise all other duties and responsibilities as required by the nature of these proceedings.

4 The motion to permit voir dire examinations of the board members indicates that criminal charges were filed against Kurtz because of the incident that led the superintendent to proceed with these charges and that the incident was the subject of a number of inflammatory and prejudicial newspaper articles published in the community. Pollard’s written opinion states that "the Board of Education will allow Respondent, through his attorney, to voir dire [sic] its members. However, the scope of inquiry will be limited to permit only questions designed to uncover bias or prejudice as a result of knowledge gained outside of the present proceedings.”

5 As an introductory matter, the board stated in its decision that Pollard was present during the board’s deliberations for the sole purpose of providing legal advice to the board when requested. The decision states:

Counsel was not requested, nor did he offer, any opinion or judgment as to what inferences should be drawn from the evidence, nor what discipline would be appropriate. Consistent with its resolution appointing counsel, the Board has reserved such responsibility to itself alone. Consistent with exercising that responsibility, each Board member reviewed the evidence prior to the deliberations.

6 The teacher tenure act provides that public school teachers may be discharged or demoted "only for reasonable and just cause, and only after such charges, notice, hearing, and determination thereof, as are hereinafter provided.” MCL 38.101; MSA 15.2001. MCL 38.104; MSA 15.2004 forbids demotion or dismissal except by a majority vote of school board members. The decision of the board may be appealed to the State Tenure Commission. MCL 38.121; MSA 15.2021. If the commission reverses the decision at the board level, the teacher is entitled to "all salary lost as a result of such suspension.” MCL 38.103; MSA 15.2003.

De novo review before the Tenure Commission encompasses more than the mere review of the record created before the board. Commission regulations provide that a party may "appear at a hearing in person or by legal counsel and may call, examine, and cross-examine witnesses and introduce into the record documentary or other evidence.” 1979 AC, R 38.172. The regulations also address evidentiary rules and require the issuance of subpoenas on request of a party. 1979 AC, R 38.172, 38.173(1).

7 We assume for the sake of argument that the same process is due before an employee is temporarily suspended, like Mr. Kurtz, or permanently discharged, like Mr. Loudermill. See Roadway Express, supra, pp 262-265 (plurality opinion, Marshall, J.).

8 Post, p 95.

9 Ferrario v Escanaba Bd of Ed, 426 Mich 353, 376; 395 NW2d 195 (1986), quoting Hortonville Joint School Dist No 1 v Hortonville Ed Ass’n, 426 US 482, 493; 96 S Ct 2308; 49 L Ed 2d 1 (1976).

10 MCL 38.104(1)(b); MSA 15.2004(1)(b).

11 See section i.

12 Post, pp 100-101.

13 Before the Tenure Commission, Pollard referred to criminal charges which had been brought against Kurtz prior to the tenure hearing and stated that the criminal proceedings "were very much in the press locally.”

14 Post, p 100.

15 Post, p 99.

¹⁶

17 A different case would obviously be presented were the contested professional affiliation between the attorney for the teacher and the attorney for either the board or the charging party. Such a case could present a conflict of interest violative of an attorney’s professional, ethical obligations.

18 The dissent discounts the partiality likely to flow from the inherent relationship of trust between a school board and its superintendent while at the same time assuming that two members of the bar, with no apparent interest in the outcome of a tenure action and who are sworn to uphold the best interests of their clients, cannot be accorded the same deference.

19 And assuming with the dissent that the attorneys’ short-term financial objectives are likely to represent the strongest influence on their behavior, it should be borne in mind that the more evidence admitted by the hearing officer, the more time both he and his partner can bill the district.

20 Post, p 101.

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