STATE OF MICHIGAN
STATE TENURE COMMISSION
EDWARD BALDWIN, Docket No 06-17
SOUTH LYON COMMUNITY SCHOOLS
BOARD OF EDUCATION,
Attorney for Appellant: Joseph H. Firestone
THE FIRESTONE LAW FIRM, P.C.
Attorney for Appellee: Lisa L. Swem
THRUN LAW FIRM, P.C.
DECISION AND ORDER ON EXCEPTIONS AND
APPELLEE'S MOTION TO DISQUALIFY COMMISSIONER DIRK ZUSCHLAG
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
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
Was appellantís claim of appeal timely?
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.
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.
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
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.
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