IRON MOUNTAIN PUBLIC SCHOOLS MA 17-1 3/7/19

Michigan Department of Education

 

FINAL REPORT AND DECISION

OF

THE SUPERINTENDENT OF PUBLIC INSTRUCTION

 

In the matter of:         Appeal by Iron Mountain Public Schools of the

Fall 2016 Pupil Membership Count

Docket No. MA 17-1

BACKGROUND FACTS

Dickinson-Iron Intermediate School District (ISD) conducted an audit of the fall 2016 pupil membership count of Iron Mountain Public Schools (Iron Mountain).  As a result of the audit, the ISD deducted 34.32 FTEs from Iron Mountain’s fall 2016 pupil membership count.  On March 9, 2017, Iron Mountain filed a first level appeal with Naomi Casher, the assistant director of the Office of Financial Management of the Michigan Department of Education (Department).  In its appeal, Iron Mountain challenged the deduction of most of the FTEs.  On May 23, 2017, Ms. Casher issued her first level decision, denying the appeal.

On June 23, 2017, Iron Mountain filed a second level appeal, challenging Ms. Casher’s decision.  Iron Mountain chose to submit its second level appeal entirely in writing, relying exclusively on its June 23 submission.  The ISD filed a response to the second level appeal on August 7, 2017.[1]

DISCUSSION

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).  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).  Applicable legal requirements are determined based on the law in effect at the time of the pupil membership count at issue.  See MCL 388.1615(3) (deductions shall be calculated according to law in effect in fiscal year in which incorrect amount was paid).  Absent statutory authority, the Department, which is subject to monitoring by the Auditor General, has no equitable 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).

This appeal concerns FTE deductions based on two unrelated circumstances.  I will first address the deduction that was based on the employment of an uncertified teacher.  Second, I will address the deduction that was based on a finding that Iron Mountain was offering shared time instruction in essential courses.

 

I.             Employment of uncertified teacher

The deduction of 22.78 FTEs was based on the status of Shelly Petrusch, who was teaching Spanish at Iron Mountain High School on the fall 2016 count day.  On that day, Ms. Petrusch did not hold a teaching certificate and she was not working under a substitute permit obtained by Iron Mountain.  Notwithstanding her certification status, Iron Mountain included her students in its fall 2016 pupil membership count. 

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 Fall 2016 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.[2]  See also sections 2 and 3 of the 2016-2017 Pupil Accounting Manual, which reiterated those statutory requirements. 

On June 14, 2017, Superintendent of Public Instruction Brian Whiston issued a decision affirming the decision of the Department’s Office of Professional Preparation Services (OPPS) to assess a state aid penalty against Iron Mountain under section 163(2) of the State School Aid Act, MCL 388.1763(2),[3] based on its employment of Ms. Petrusch for the 79-day period of August 30, 2016, to November 16, 2016.  Iron Mountain Public Schools (CP 17-3).  The facts relevant to the instant matter are set forth in the June 14 decision.

Shelly Petrusch was issued a Michigan provisional teaching certificate on February 26, 2010.  The certificate expired on June 30, 2016.

 

On June 29, 2016, one day before expiration of her certificate, Ms. Petrusch submitted an application for renewal of the certificate.  In that application, she indicated that she was requesting renewal under Mich Admin Code, R 390.1129b(5), which provides that an individual who holds an expired Michigan provisional teaching certificate is eligible for one 3-year renewal of the certificate if he or she holds a valid teaching certificate from another state and taught within the validity of that certificate for at least one year in the preceding 5 years.[[4]] 

***

Ms. Petrusch did not make the [$100.00] required payment[[5]] until October 28, 2016, thus delaying [the Department’s] consideration of her renewal application until that time.  Notwithstanding this deficiency, she was hired by Iron Mountain Public Schools on July 11, 2016, and she began her assignment as an Iron Mountain Spanish teacher on August 30, 2016.

 

On November 9, 2016, [the Department] placed Ms. Petrusch’s renewal application on hold because the Florida teaching upon which she was relying for renewal of her expired Michigan certificate did not amount to the one year of teaching required by Mich Admin Code R 390.1129b(5).  Because she did not submit documentation of additional Florida work experience that would have satisfied the administrative rule, her renewal application was denied on November 14, 2016, and her $100.00 payment was refunded.  On November 17, 2016, Iron Mountain Public Schools applied for and was issued a full-year substitute permit and Ms. Petrusch. . .worked under the permit [from November 17, 2016 until the end of the 2016-2017 school year].  (Original footnotes omitted.)

 

        In the instant appeal, Iron Mountain incorporates the three arguments that it raised in its appeal of the OPPS action.  First, it argues that Ms. Petrusch “could have been certified prior to the school year, but for an online payment omission (a technical violation at most) and incomplete information in Ms. Petrusch’s application.”  (June 23, 2017 appeal letter, p 1).  As Superintendent Whiston stated in his June 14 decision:

It is, of course, an applicant’s responsibility to submit the statutorily required fee in a timely fashion.  In any event, as noted above, the lack of payment of the renewal fee was not the only deficiency in Ms. Petrusch’s eligibility for renewal of her certificate.

 

Second, Iron Mountain argues that Ms. Petrusch “could have been certified as a substitute teacher (as issued in November).”  (June 23, 2017 appeal letter, p 2).  In case CP 17-3, Iron Mountain blamed the ISD Business Service Consortium for the failure to obtain a substitute permit in a timely fashion.  However, MCL 380.1231(3), MCL 380.1233(1), and MCL 388.1763(1) generally prohibit school district employment of noncertificated teachers, and controlling administrative rules, which have the force and effect of law,[6] require that a school district obtain a permit to allow its employment of a noncertificated teacher, Mich Admin Code, R 390.1105(1), R 390.1141 et seq.  As Superintendent Whiston noted in the June 14 decision, Iron Mountain cites no statutory or other authority that relieved it of its legal responsibilities related to the employment of teachers.

Iron Mountain’s third argument in support of its employment of Ms. Petrusch is that “she meets the requirements for employing a non-certified teacher under MCL 380.1233b.”  (June 23, 2017 appeal letter, p 2).  That statute allows the employment of noncertificated teachers under certain circumstances.  As Superintendent Whiston said in the June 14 decision, “[E]ven assuming that the district and Ms. Petrusch satisfied the requirements of MCL 380.1233b, the district did not apply for a permit, as required by Mich Admin Code, R 390.1146[[7]], to allow her employment under the statute.”

On the fall 2016 pupil membership count day, the importance of the permit requirement was underscored by Mich Admin Code, R 390.1111(5).  That subrule provided in pertinent part that conviction of a crime described in section 1535a of the Revised School Code, MCL 380.1535a, was considered to be reasonably and adversely related to the ability to serve in an elementary or secondary school and was sufficient grounds for denial of a permit.[8]  The permit process thus plays an important role in the screening of school instructional employees for criminal convictions, a vital function of the Department in its efforts to safeguard pupils’ safety.[9]

I agree with Superintendent Whiston’s resolution of the certification penalty matter and, for the reasons articulated in his June 14, 2017 decision, I affirm the first level decision as it relates to the deduction of 22.78 FTEs from Iron Mountain’s fall 2016 pupil membership count based on its employment of Ms. Petrusch on the pupil membership count day.  Because she was neither a certified teacher nor employed under a substitute permit issued to Iron Mountain on that day, Iron Mountain was not allowed to count her students in its fall 2016 pupil membership.  MCL 388.1606(8).  See Tekonsha Community Schools (MA 15-1), Shelby Public Schools (MA 17-2), Whittemore-Prescott Area Schools (MA 17-3), and Almont Community Schools (MA 18-5) for similar results based on school districts’ employment of noncertificated teachers on pupil membership count days.

II.           Shared time instruction

Iron Mountain claims in its appeal that an additional 9.86 FTEs were deducted from its fall 2016 pupil membership count based on the conclusion that five online courses provided by Iron Mountain to homeschool pupils in a shared time program known as Homeschool Partnership were essential courses.  In fact, the ISD deducted 9.69 FTEs based on findings related to those five courses.[10]  

In considering whether the five disputed courses were essential courses on the fall 2016 pupil membership count day, I am guided by the principles set forth in Brighton Area Schools (MA 17-4).  In that case, I reviewed relevant judicial, administrative, and statutory authority to determine what courses a public school district may offer to nonpublic school pupils without infringing on constitutional or other legal authority regarding the use of public moneys to fund nonpublic education.  I concluded in Brighton that a school district may include a part-time nonpublic school pupil in its pupil membership count to the extent the pupil was enrolled in a nonessential course, including an advanced or enrichment course, that was in addition to essential instruction provided at the nonpublic school.  Under Brighton, courses that generally go beyond basic instruction and that are not required for full-time pupils of the public school are considered nonessential and thus allowable in shared time programs.[11]  In addition, shared time courses must be available to full-time public school pupils, the nonpublic school pupils must be subject to the same requirements as full-time public school pupils enrolled in the courses, and essential instruction must be provided by the pupil’s nonpublic school. I incorporate the Brighton decision by reference in this decision and I find that its reasoning applies to the homeschool pupils whose memberships are in dispute in this case.[12]  See also Hamilton Community Schools (MA 18-4).

Based on consideration of the record in this case, I find that each of the disputed courses was permissible in Iron Mountain’s shared time program.  I find that four of the courses were enrichment courses that supplemented basic elementary instruction in English language arts or basic instruction in science.  It is also apparent that one of the courses was a computer technology course that is expressly considered nonessential under Mich Admin Code, R 340.2(20)(a).[13]  The courses were not required for full-time Iron Mountain pupils and there is nothing in the ISD audit narrative or first level appeal decision that calls into question Iron Mountain’s assertion that each of the disputed courses was available to full-time Iron Mountain pupils.  Nor is there any indication in the record that full-time pupils were subject to course requirements (e.g., course prerequisites) that did not apply to homeschool pupils.  In addition, Iron Mountain provided documentation that the homeschool curriculum of each of the involved pupils satisfied MCL 380.1561(3)(f) (public school attendance not required for children educated at home by parent or guardian in organized educational program in reading, spelling, mathematics, science, history, civics, literature, writing, and English grammar).  

For these reasons, I disagree with the deduction of 9.69 FTEs from Iron Mountain’s Fall 2016 pupil membership count for the homeschool pupils enrolled in the five disputed courses.

 

 

Conclusion

In summary, I affirm the deduction of 22.78 FTEs from Iron Mountain’s fall 2016 pupil membership count based on its employment of a noncertified teacher on the pupil membership count day and I reverse the deduction of 9.69 FTEs from that count based on my finding that the five involved courses were nonessential.

In its second level appeal, Iron Mountain asked that the contested state school aid deductions be waived under section 15(2) of the State School Aid Act, MCL 388.1615(2), as amended by 2017 PA 108, effective July 14, 2017.  The waiver provision upon which Iron Mountain relied was rescinded effective October 1, 2018.  2018 PA 265.  As noted, Iron Mountain’s waiver request was submitted prior to the effective date of the rescission.  Based on my review of the entire record and in the exercise of my discretion under former MCL 388.1615(2), I deny Iron Mountain’s request for a waiver of the FTE deduction based on the employment of Ms. Petrusch.  I find no mitigating circumstances in this case to excuse Iron Mountain’s employment of a noncertified teacher.

 

 

 

 

 

 

 

 

 

ORDER

Based on my review of this matter and for the above reasons, I deny in part and grant in part Iron Mountain Public Schools’ appeal of the first level appeal decision and I order as follows.

The deduction of 22.78 FTEs from Iron Mountain Public Schools’ fall 2016 pupil membership count based on the employment of Shelly Petrusch is affirmed.  Iron Mountain Public Schools’ request for waiver of this deduction is denied.

The deduction of 9.69 FTEs from Iron Mountain Public Schools’ fall 2016 pupil membership count for part-time homeschool pupils enrolled in shared time courses is reversed.

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: March 7, 2019

 



[1] In its first and second level appeals, Iron Mountain asserted that it was challenging the deduction of 32.64 FTEs, and the first level appeal decision reflected that assertion.  In fact, as explained below, the deductions that were based on the two issues raised on appeal totaled 32.47 FTEs.

[2] As amended by 2018 PA 265, MCL 388.1606(8) 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.

 

[3] MCL 388.1763(2), provides in part as follows.

 

Except as provided in the revised school code, a district or intermediate district employing educators not legally certificated or licensed shall have deducted the sum equal to the amount paid the educators for the period of noncertificated, unlicensed, or illegal employment.

 

[4]The requirement of one year of teaching in the preceding five years was deleted when Rule 390.1129b(5) was amended effective November 15, 2017. 

 

[5] MCL 380.1538(1)(b)(i) ($100 fee shall be paid to the Department for evaluation of application for renewal of provisional certificate).

[6] Clonlara, Inc. v State Board of Education, 442 Mich 230, 239 (1993)

 

[7] Rule 390.1146 was rescinded effective November 15, 2017.  The permit requirement for individuals employed under MCL 380.1233b now appears in Rule 390.1141(1).

 

[8] See now Mich Admin Code, R 390.1141(6)(b) (superintendent of public instruction may refuse to grant a substitute permit based on conviction of a crime described in MCL 380.1535a).

[9] See also MCL 380.1230 et seq. (criminal history checks for all school employees).

 

[10] According to the ISD audit narrative, the deductions that were based on the identification of the five disputed courses as essential courses were: 6.29 FTEs (North Elementary), 2.55 FTEs (East Elementary), 0.68 FTE (Central Middle School), and 0.17 FTE (Iron Mountain High School).  The first level appeal decision also mistakenly used the 9.86 FTE figure.

[11] In Brighton, I found that, under Mich Admin Code, R 340.2(2)(b), essential courses include those that provide basic instruction in mathematics, reading, English, social studies, science, writing, the United States and Michigan constitutions, and the history and present form of civil government of the United States, Michigan, and political subdivisions and municipalities of Michigan.

 

[12] As in Brighton, I do not address in this decision several shared time instruction requirements set forth in MCL 388.1766b that were not addressed in the ISD audit narrative or in the first level appeal decision.  See footnote 3 in Brighton. 

 

[13]  According to Rule 340.2(20)(a), “Nonessential elective courses include, but are not limited to, band, art, music, drama, computer technology, life skills, career and technical education, physical education, driver's education and advanced placement level courses.”