BALDWIN EDWARD v SOUTH LYON 06-17  10/12/06

STATE OF MICHIGAN

STATE TENURE COMMISSION

 

 

EDWARD BALDWIN,                            Docket No 06-17

     Appellant

                                 

v                                           

 

SOUTH LYON COMMUNITY SCHOOLS     

BOARD OF EDUCATION,

     Appellee

 

Attorney for Appellant: Joseph H. Firestone

                        THE FIRESTONE LAW FIRM, P.C.

                        The Congress Building

                        30555 Southfield Road, Suite 530

                        Southfield, MI  48076

                       

Attorney for Appellee:  Lisa L. Swem

                        THRUN LAW FIRM, P.C.   

                        2900 West Road, Suite 400

                        P.O. Box 2575

                        East Lansing, MI  48823-1391

                       

DECISION AND ORDER ON EXCEPTIONS AND

APPELLEE'S MOTION TO DISQUALIFY COMMISSIONER DIRK ZUSCHLAG

 

INTRODUCTION

 

Appellantís counsel filed a motion to determine whether appellantís claim of appeal was timely filed.  Following oral arguments and the submission of briefs by the parties, the Administrative Law Judge (ALJ) issued a decision and order on July 28, 2006, determining that the filing was untimely and denying appellantís claim of appeal.  Appellant filed exceptions to the ALJís decision and appellee filed a response to the exceptions and in support of the ALJís decision.  Appellee also filed a motion to disqualify Commissioner Dirk Zuschlag.  On September 25, 2006, Commissioner Zuschlag voluntarily recused himself from any participation in the Commission's deliberation or resolution limited to the timeliness issue in this case.

BACKGROUND FACTS

We adopt the ALJís findings of fact contained in his decision and order, and provide a summary herein for the convenience of the reader.  On April 27, 2006, appellantís counsel, Joseph Firestone, upon learning that appellee intended to proceed on tenure charges against his client, sent a letter informing appellee that he represented appellant.  The letter further stated that his office would accept service on behalf of appellant should appellee vote to proceed on charges against his client.  On May 1, 2006, appellee voted to proceed on the charges against appellant.  On May 2, 2006, appellee sent to Mr. Firestone by facsimile transmission a copy of the charges, the written decision to proceed upon the charges, a statement of appellantís rights and a copy of the Teachersí Tenure Act.  The cover sheet accompanying the facsimile was notated "For your information" and stated that "A hard copy will be sent via U.S. mail."  It is not disputed that Mr. Firestone received the facsimile transmission on May 2, 2006.  On May 3, 2006, a hard copy of the above information was received by appellant via certified mail, and by Mr. Firestone via first class mail.

On May 23, 2006, Mr. Firestone filed appellantís claim of appeal with this Commission.  On that day also, appellee sent appellant a letter terminating his pay effective immediately based on its belief that appellant had not filed a timely appeal of the boardís May 1, 2006 action.  Appellee believed that May 2, 2006 was the operative date initiating the 20 day appeal period, making May 22, 2006 the final day for a timely appeal.  Appellantís motion regarding the timeliness of his appeal followed, resulting in the ALJís decision that is the subject of the exceptions before this Commission.

ISSUE

Was appellantís claim of appeal timely?

DISCUSSION

The provisions of the Teachersí Tenure Act that control this dispute are in pertinent part as follows:

The controlling board, if it decides to proceed upon the charges, shall furnish the teacher not later than 5 days after deciding to proceed upon the charges with the written decision to proceed upon the charges, a written statement of the charges and a statement of the teacher's rights under this article.

MCL 38.102

 

 

A teacher on continuing tenure may contest the controlling board's decision to proceed upon the charges against the teacher by filing a claim of appeal with the tenure commission and serving a copy of the claim of appeal on the controlling board not later than 20 days after receipt of the controlling board's decision.

MCL 38.104

 

Thus, a school board must "furnish" a teacher with a written statement of the charges, the written decision to proceed upon the charges and a statement of the teacherís tenure rights.  The teacher must file his or her claim of appeal with the Commission not later than 20 days after "receipt" of the boardís decision.  The ALJ concluded that neither the Tenure Act nor the Commissionís rules define "furnish" or "receipt."  Using common dictionary definitions, he determined that "furnish" means to supply or give, and "receipt" means the act of receiving or having been received.  Applying those definitions to the instant case, the ALJ concluded that the district gave appellant, and appellant received, the required documentation by way of the May 2, 2006 facsimile, thereby rendering appellantís appeal untimely.

Appellant has filed three exceptions to the ALJís decision and order.  He first contends that neither furnishing nor receipt of the charges can be accomplished by facsimile.  Appellantís second exception further contends that a "For your information" facsimile transmission of tenure charges does not initiate the time period for filing an appeal.  In his third exception, appellant claims that the ALJ erred in applying retroactively "his new judicially fashioned procedural rule of 'furnishing' and 'receiving' tenure charges by facsimile transmission."

We concur with the ALJ and the parties that neither the Tenure Act nor the Commission Rules or cases provide the definition for the key terms involved in this case, nor do they provide guidance on a controlling board's use of facsimile communication equipment to transmit tenure charges to a teacher.  We find the ALJ's definitions of the terms "furnish" and "receive" are reasonable and we adopt them as our own.  We also today determine that transmission by facsimile of tenure charges and the required accompanying documentation by a controlling board to a teacher is acceptable given the short five day time line of the Tenure Act.  Our concern, however, lies in the fairness of applying this new holding to deny a teacher's due process right to appeal where the prior state of the law was not clear on this issue.

While the Commission has a rule that allows the use of facsimile communication equipment for the filing of pleadings and documents, 2000 AACS R. 38.145, that rule applies after an appeal is filed and, thus, would not include the provision of charges by the board to a teacher.  Rule 38.145 was part of the 2000 amendment to the Commissionís General Administrative Rules.  The amendment was an attempt to accommodate, albeit on a limited basis, modern technology such as facsimile transmission that was not widely available when the rules were originally promulgated.  Before its promulgation, no Commission rule specifically allowed for facsimile transmission in meeting the various requirements of the Tenure Act.

Absent any authority to allow facsimile transmission as an acceptable means of furnishing or receiving tenure charges, we believe it would be unfair to deny a tenured teacherís right to appeal on that basis.  Moreover, the notations accompanying the May 2, 2006 facsimile add further uncertainty in this case as to whether it was intended to constitute furnishing of the charges.  The "For your information" notation combined with the statement that a hard copy would follow could be interpreted to mean that the facsimile was not intended to be the official furnishing of the documentation, but was merely a "heads-up" to counsel that the official version was forthcoming.

 

Before a teacherís due process rights involving his or her vested property interest in tenure are curtailed, the action or, in this case, lack of action, resulting in such loss must be clear.  We find that not to be the case herein.  "The Tenure Act must be read in the light of constitutional principles of fundamental fairness and procedural due process."  Dimitruck v Utica Community Schools (74-3).  Accordingly, we believe under these circumstances that the 20 day time line limiting appellantís right to file a tenure appeal must be calculated from the date that appellant or his counsel received notice by mail of the charges and other required documentation.  Thus, we find that appellant's claim of appeal was timely filed.    

ORDER

We have reviewed the record and we now order the following:

Appellant's exceptions are granted in part and denied in part as resolved in this decision.

The decision and order of the Administrative Law judge is reversed.

 

 

 

 

 

 

 

 

 

This case is remanded to the Administrative Law Judge for further proceedings.

Appellee's Motion to Disqualify Commissioner Dirk Zuschlag is dismissed as moot.

 

 

______________________________

Gerald D. Dawkins, Chairperson

 

 

 

______________________________

Karen K. Leslie, Member

 

 

 

______________________________

Sharon C. Peters, Member

 

 

 

______________________________

James Petrie, Member

 

Recused:  Dirk Zuschlag

 

DATED:  October 12, 2006