Portland Public Schools Board of Education v. Dowling

360 N.W.2d 315, 138 Mich. App. 824, 1984 Mich. App. LEXIS 3064
CourtMichigan Court of Appeals
DecidedNovember 7, 1984
DocketDocket No. 74162
StatusPublished

This text of 360 N.W.2d 315 (Portland Public Schools Board of Education v. Dowling) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Portland Public Schools Board of Education v. Dowling, 360 N.W.2d 315, 138 Mich. App. 824, 1984 Mich. App. LEXIS 3064 (Mich. Ct. App. 1984).

Opinion

Per Curiam.

Defendant appeals a September 15, 1983, judgment of the circuit court, which reversed a July 19, 1982, decision and order of the State Tenure Commission. We affirm.

Defendant, a tenured middle-school home economics teacher, was employed by plaintiff. Her services were terminated for the 1981-1982 school year because of a reduction in personnel. Defendant is certified to teach all subjects in grades 7 and 8, including a middle-school mathematics position held by a probationary teacher. Defendant does not have a major or minor in mathematics. Plaintiff refused to assign defendant to the mathematics position and defendant appealed to the State Tenure Commission. Plaintiff claimed that defendant did not meet the qualification standards embodied in Board Policy 4115:

"Assign and Transfer
"The Board shall assign teachers according to their area of greatest competence, as determined by the Board, and will not assign a teacher outside the scope of his teaching certificate or his major or minor fields of study unless there is mutual consent.”

Defendant claimed the qualification was arbitrary and capricious on its face or as applied in her case.

The majority of the tenure commission found in favor of defendant. Two commission members would have denied defendant’s claim. The dissenters agreed with the majority that the "mutual consent” provision of the qualification standard was vague and arbitrary but disagreed that this objectionable part could not be severed from the qualification.

[827]*827On appeal, the circuit court reversed the commission’s decision. The court found no case law support for the commission’s position that qualification standards must be formally adopted, predetermined and published. The court found that the "mutual consent” provision was not arbitrary and capricious and that the commission’s determination that plaintiff applied the provision to defendant’s case arbitrarily was not supported by the commission’s finding of fact. Additionally, the court found that, assuming the "mutual consent” provision was arbitrary and capricious, it was severable from the qualification standard.

Section 5 of the teacher tenure act provides that any tenured teacher shall be appointed to the first vacancy in the school district for which he or she is certified and qualified. MCL 38.105; MSA 15.2005. Defendant argues that plaintiff has not promulgated qualifications for the disputed position, other than certification, and that Policy 4115 does not govern assignments of teachers who have not been laid off. Defendant relies upon Chester v Harper Woods School Dist, 87 Mich App 235; 273 NW2d 916 (1978), for the proposition that before a "qualification” may be valid, it must be "set out by the school board” and promulgated.

We do not read Chester as requiring such procedural formalities. Rather, the Chester Court held that the State Tenure Commission, in determining whether a tenured teacher is qualified for a position, must apply the criteria of qualification that the school board has set out unless those criteria are arbitrary, unreasonable or promulgated in bad faith. Id., 246. The commission must give deference to a school board’s determination of qualification, and may not substitute its own criteria of qualification for those of the school board. Id., 247. Indeed, the qualification criteria upheld in Chester [828]*828had not been reduced to writing, and thus not promulgated. The State Tenure Commission has no authority to require that school boards reduce qualification criteria to writing. Farmer v Holton Public Schools, 138 Mich App 99; NW2d (1984).

Moreover, we find that the policy at issue does set forth a "qualification” under § 5. The policy establishes two qualification criteria, certification and the teacher’s major or minor field of study. These are presumptive minimum qualifications to teach a specific subject. The portion of the policy relating to mutual consent recognizes that a person may be qualified to teach a subject outside his or her major or minor field of study, but the existence of such a qualification would have to be established on a case-by-case basis to the satisfaction of both parties.

In response to defendant’s claim that the policy does not contain qualification criteria, but is merely a policy relating to the assignment and transfer of currently employed teachers, we agree with the circuit court that the policy is dual-purposed and establishes qualifications for the recall of a laid-off teacher.

Defendant next argues that the circuit court failed to give due deference to the findings of fact of the State Tenure Commission and, therefore, failed to apply the proper standard of review.

The standard applicable to a review of a decision of the tenure commission is whether the decision is supported by "competent, material and substantial evidence on the whole record”. Comstock Public Schools v Wildfong, 92 Mich App 279, 284-285; 284 NW2d 527 (1979); Const 1963, art 6, § 28. The circuit court disagreed with the tenure commission on three issues: (1) whether the "mutual consent” standard was arbitrary or capricious on its face: (2) whether the "mutual consent” standard was sever-[829]*829able from the other portions of the policy; and (3) whether the "mutual consent” standard was applied to defendant in an arbitrary or capricious manner.

Our review of the circuit judge’s opinion convinces us that the circuit judge was aware of the facts as found by the commission and accepted those factual findings. The judge merely disagreed with the State Tenure Commission’s application of law to those facts. Defendant’s arguments on this issue are without merit.

Defendant also argues that the circuit court erred when it overturned the State Tenure Commission’s finding that the plaintiff’s policies were arbitrarily and capriciously applied to defendant. Defendant claims, again, that the circuit court failed to apply the proper standard of review. In addition, defendant contends that the circuit court’s decision on the issue was clearly erroneous. We disagree.

In support of its decision that the "mutual consent” clause was arbitrarily applied, the tenure commission noted that Robert Williams, a physical education teacher, was permitted to teach two seventh grade classes in practical mathematics during the 1980-1981 school year. The tenure commission did not consider that the assignment was a temporary response to the need to fill out Williams’ teaching assignment. Further, Williams also possessed a business minor. In addition, Williams had taught mathematics a number of years prior to his first employment in plaintiff’s school system. Also, plaintiff’s superintendent of schools testified that he would not assign Williams to the full-time mathematics teaching position at issue in this appeal because he did not believe Williams was qualified. The distinction is that the full-time mathematics teaching position involves the teach[830]*830ing of applied mathematics, while Williams taught practical mathematics.1

The State Tenure Commission also supports its decision on the grounds that plaintiff never reviewed defendant’s entire transcript.

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Related

Comstock Public Schools v. Wildfong
284 N.W.2d 527 (Michigan Court of Appeals, 1979)
Chester v. Harper Woods School District
273 N.W.2d 916 (Michigan Court of Appeals, 1978)
Farmer v. Holton Public Schools
138 Mich. App. 99 (Michigan Court of Appeals, 1981)

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Bluebook (online)
360 N.W.2d 315, 138 Mich. App. 824, 1984 Mich. App. LEXIS 3064, Counsel Stack Legal Research, https://law.counselstack.com/opinion/portland-public-schools-board-of-education-v-dowling-michctapp-1984.