Michigan Department of Education
FINAL REPORT AND DECISION
THE SUPERINTENDENT OF PUBLIC INSTRUCTION
In the matter of: Appeal by Almont Community Schools of the
Fall 2017 Pupil Membership Count
Docket No. MA 18-5
Lapeer County Intermediate School District audited the Fall 2017 pupil membership count of Almont Community Schools (Almont) and deducted 7.65 FTEs. In a letter dated May 11, 2018, Almont appealed the state aid deduction to Naomi Casher, assistant direction of the Department of Education’s Office of Financial Management, seeking reinstatement of all deducted FTEs. On July 31, 2018, Ms. Casher issued a first-level decision denying the appeal. On August 1, 2018, Almont requested final agency review and, on September 27, 2018, it submitted additional materials in support of its appeal.
Almont was given two options: submission of the appeal entirely in writing or appearance at a review conference convened by a designee of the Superintendent of Public Instruction. At Almont’s request, there was a review conference at the Department on October 1, 2018. Present at the review conference were Robert Taylor, designee of the Superintendent of Public Instruction; Almont Superintendent William Kalmar; Lapeer County Intermediate School District Superintendent Steven Zott; Michelle Campbell, assistant to Mr. Kalmar; and Mary Fielding, a Department administrative law specialist.
Consideration of this appeal is guided by several well-established principles. First, it is the Department’s responsibility to administer the distribution of state school aid funds in full compliance with all applicable statutes and administrative rules and to ensure that statutes and rules are applied uniformly to all school districts. Ithaca Public Schools (MA 16-1); Delton Kellogg Schools (MA 12-4); Galien Township School District (MA 12-1); McBain Rural Agricultural School (MA 11-1); Port Huron Area School District (MA 10-1); Parchment School District (MA 08-1). In addition, the Legislature has expressly mandated that districts comply with the requirements established in the Pupil Accounting Manual approved by the Department and that, if a district fails to do so, the Department must withhold state school aid. MCL 388.1618(4)(d) and (10). Thus, the Department’s responsibilities include the uniform application of the Pupil Accounting Manual and the administration of state school aid funds in full compliance with it. Ithaca, supra; Galien Township, supra; McBain, supra.
A district claiming eligibility for state school aid is obligated to demonstrate satisfaction of all legal requirements to establish such eligibility. Ithaca, supra; Delton Kellogg, supra; Life Skills Center of Pontiac (MA 12-2); Galien Township, supra; McBain, supra; Port Huron, supra; Parchment, supra; L’Anse Creuse Schools (MA 00-1); Hamtramck Public Schools (MA 94-1); Bendle Schools (MA 93-2); Coopersville Area Public Schools (MA 92-10). Absent statutory authority, the Department, which is subject to monitoring by the Auditor General, has no authority to deviate from legal requirements. Ithaca, supra; McBain, supra; Port Huron, supra; Westwood Community School District (MA 01-3); Beacon International Academy (MA 01-1); Lansing School District (MA 91-9); Orchard View Schools (MA 90-2).
In general, the State School Aid Act allows a school district to count in its membership pupils who are in attendance and receiving instruction in classes for which they are enrolled on the count day. MCL 388.1606(8). At the time of the 2017 pupil membership count, a “class” was defined for purposes of MCL 388.1606(8) as a period when pupils and a certificated teacher or legally qualified substitute teacher were together and instruction was taking place. Id. See also sections 2 and 3 of the 2016-2017 Pupil Accounting Manual, which reiterated these statutory requirements.
The Legislature has set forth the general requirement that a teacher hold a valid teaching certificate. MCL 380.1231(3); MCL 380.1233(1); MCL 388.1763(1). Absent a statutory exception to this requirement, employment of a noncertificated individual as a teacher is prohibited. One statutory exception is set forth in MCL 380.1233(6), which, at the time of the 2017 pupil membership count, allowed the employment of individuals as substitute teachers if they had earned 90 semester credit hours.
Administrative rules related to substitute teaching permits are found in the Teacher Certification Code, Mich Admin Code, R 390.1101 et seq. See, e.g., Mich Admin Code, R 390.1105(1) (“A person employed as a teacher in grades K to 12 with instructional responsibilities shall hold a certificate, permit, or occupational authorization valid for the positions to which the teacher is assigned.”) and Mich Admin Code, R 390.1141 to 390.1147 (rules related to permits). It is well settled that administrative rules have the full force and effect of law. Detroit Base Coalition for Human Rights of Handicapped v Director, Department of Social Services, 431 Mich 172, 177 (1988). As such, both the public and the Department are bound by them. Id. at 189 (administrative agency is under a duty to follow its own rules); Rand v Civil Service Commission, 71 Mich App 581, 586 (1976) (administrative agency must comply with its own rules). The significance of rules governing substitute permits, for which the Legislature has set fees, MCL 380.1538(1)(a)(vi) to (viii), is underscored by Mich Admin Code, R 390.1111(5), which provides in pertinent part that conviction of a crime described in section 1535a of the Revised School Code, MCL 380.1535a, is considered to be reasonably and adversely related to the ability to serve in an elementary or secondary school and is sufficient grounds for denial of a permit. The permit process thus plays an important role in the screening and ongoing monitoring of school instructional employees for criminal convictions, a vital function of the Department in its efforts to safeguard pupils’ safety.
At issue in this appeal is Almont’s inclusion in its fall 2017 pupil membership count of the 85 pupils who were taught by Renee Porter at Almont Middle School on the fall 2017 pupil membership count day, when she did not hold a valid Michigan teaching certificate and she was not teaching under a substitute permit obtained by Almont. The district had obtained a substitute permit for Ms. Porter in the 2016-2017 school year but did not do so for the 2017-2018 school year until April 4, 2018  Almont admits that it violated MCL 388.1606(8) but it asks that the state aid deduction be reversed because, according to the district, it had no intent to put an unqualified individual in a classroom, the penalty of 7.65 FTEs is excessive, and the district immediately obtained a substitute permit when it realized the error. The district also argues that Ms. Porter was qualified to be a substitute teacher. In support of that claim, it submitted Ms. Porter’s University of Michigan-Flint transcript showing that she earned a baccalaureate degree in elementary education in May 1991.
Shelby Public Schools (MA 17-2) involved the employment of an individual as a teacher who was neither certificated nor working under a substitute permit on the pupil membership count day. Citing the statutory requirements related to teacher certification and the administrative rules related to substitute permits, the superintendent of public instruction rejected the argument that, because the individual had earned 90 semester credit hours, she was a “legally qualified substitute teacher” for purposes of MCL 388.1606(8). See also Tekonsha Community Schools (MA 15-1) (pupil membership adjustment upheld based on employment of individual without certificate or permit).
I find that the reasoning of the Shelby decision applies in this case. With that holding in mind and based on careful review of the documentation presented by Almont and consideration of the district’s arguments, I agree with Ms. Casher that the deduction of 7.65 FTEs from Almont’s fall 2017 pupil membership count was proper. I emphasize that my decision is not based on a finding of any improper intention on the part of Almont. On the contrary, I recognize that there was a legitimate reason for the regular teacher’s absence from the classroom on the count day and that the failure to obtain the required permit for Ms. Porter was due only to administrative oversight. I also commend Almont for immediately taking action to obtain the required permit upon realizing its error, and I am cognizant of the significant financial burden that is sometimes imposed on school districts based on the fact that such errors occur on pupil membership count days. I also note that the audit narrative prepared by the Lapeer County Intermediate School District auditor stated that, “Overall, the district did a good job on reporting for pupil accounting,” and I want to express my appreciation for the district’s efforts. Constrained by legal requirements and controlling precedent, however, I must uphold the first-level appeal decision.
Based on my review of this matter and for the above reasons, I affirm the deduction of 7.65 FTEs from the Fall 2017 pupil membership count of Almont Community Schools.
This final report and decision is being transmitted to the Department of Education’s Office of Financial Management – State Aid and School Finance for implementation.
Sheila A. Alles
Interim Superintendent of Public Instruction
Dated: November 1, 2018
 Dr. Kalmar, Mr. Zott, and Ms. Campbell attended the review conference by telephone.
 2018 PA 265 and 266 amended MCL 388.1606(8), which currently provides in pertinent part as follows.
For purposes of this subsection, "class" means a period of time in 1 day when pupils and a certificated teacher, a teacher engaged to teach under section 1233b of the revised school code, MCL 380.1233b, or an individual working under a valid substitute permit, authorization, or approval issued by the department, are together and instruction is taking place.
 According to Almont, Ms. Porter, who was employed in the district’s morning tuition pre-school program, was placed in the classroom of a teacher who was required to attend a child study meeting on the count day.
 In a letter dated May 18, 2018, Leah C. Breen, director of the Department’s Office of Educator Excellence, and Phillip L. Boone, assistant director of the Department’s Office of Financial Management, notified Almont that its state aid was being reduced by $712.50, the amount of salary paid to Ms. Porter when she was teaching without being certified or permitted. Almont did not appeal that state aid adjustment, which was imposed under section 1763 of the State School Aid Act, MCL 388.1763.