STATE OF
STATE TENURE COMMISSION
GERALDINE BASKERVILLE,
Appellant
v Docket No. 07-20
RIVER ROUGE PUBLIC SCHOOLS
BOARD OF EDUCATION
Appellee
Attorney for Appellant: Michael K. Lee
LAW OFFICES OF LEE & CORRELL
24901 Northwestern Highway,
Attorney for Appellee: Ebony L. Duffy
GARAN LUCOW MILLER, P.C.
DECISION AND ORDER ON MOTION TO REOPEN THE RECORD
DECISION AND ORDER ON EXCEPTIONS
On June 12, 2007, appellant Geraldine Baskerville, a tenured teacher, filed a claim of appeal challenging the decision of appellee River Rouge Public Schools Board of Education to discharge her. The eight charges alleged improper entries made by appellant, a high school counselor, on the transcripts of seven high school seniors. The matter proceeded to hearing before Administrative Law Judge James R. Ward on September 12 and September 27, 2007. In his preliminary decision and order (PDO), the ALJ found that the charges that related to the transcripts of six students had been proved and that there was reasonable and just cause to discharge appellant. On February 19, 2008, appellant filed exceptions to the PDO and a motion to reopen the record. Appellee’s cross-exceptions, statement in support of the PDO and response to the motion were not timely filed and will therefore not be addressed in this decision.[1]
DISCUSSION
MOTION TO REOPEN THE RECORD
Appellant requests that the record be reopened for the purpose of submitting documentary evidence. She argues that, “There is no need to have any kind of a formal hearing” on the newly proffered evidence “because the documents were obtained from the Appellee River Rouge” and “their admissibility [is thus] beyond dispute.” (Appellant’s motion to reopen the record, p 2). She describes the documents as the “final transcripts” of five of the seven students whose transcripts she is alleged to have wrongly altered.
Appellant cites no authority that supports her motion. The Teachers’ Tenure Act provides that this Commission may hear no additional evidence and that our review may be based solely on the evidence contained in the record from the hearing. MCL 38.104(5)(m). The motion to reopen the record is therefore denied.
EXCEPTIONS
In exception 1, appellant revisits the issue raised in her motion to reopen the record. In her exception, however, she argues that, in “the interest of justice,” the matter should be remanded to the ALJ for submission of the proffered documentary evidence. Appellant cites no authority in support of this exception and, even assuming that a request for remand to the ALJ may be raised as an exception in a tenure case, we are not persuaded that remand is appropriate in this case.[3]
We review appellant’s request pursuant to the standards for motions for new trial under MCR 2.611(A)(1). See Smith v Detroit Board of Education (96-27). Appellant does not claim that she could not with reasonable diligence have produced the proffered documents at the hearing. She does not claim, and we find no basis to conclude, that the proffered evidence is newly discovered. MCR 2.611(A)(1)(f). See Harris v Board of Education of the Muskegon Heights Public Schools (02-3-2)(Decision and order, appellant’s request for rehearing, 2/6/03). Nor does appellant allege a legal error with respect to these documents. Her assertion of “the interest of justice” does not amount to a claim that the PDO is contrary to law. MCR 2.611(A)(1)(e). Moreover, we are not persuaded by appellant’s assertion that the proffered documents necessarily support her claim of appeal. Thus, even assuming that remanding a tenure case to the ALJ at this stage of the proceedings would ever be appropriate, we do not find extraordinary circumstances in this case that would support such a ruling. For these reasons, appellant’s first exception is denied.
In her second exception, appellant raises several challenges to the ALJ’s findings related to the transcripts of senior students MS, JP and DD. Appellant claims that she entered summer school credits on the transcripts of each of those students on April 24, 2007, near the end of their senior year, based solely on the students’ representations that they had taken those summer school courses. For MS and JP, whose transcripts each already included a semester of American History with a grade of E for 10th grade, she entered a 10th grade summer school American History class with a grade of C. Student DD had failed pre-algebra in ninth grade; appellant entered a ninth grade summer school class of pre-algebra on her transcript, with a grade of C. (Exhibits 2-4). Appellant testified that she would have removed the entries if the students had not provided supporting documentation by the week of final examinations. With particular respect to MS and JP, she testified that the students did not tell her the grade they received in the alleged summer school classes but that she gave them each a C because it was “middle of the road until we got something.” (Tr, pp 203-206, 217, 224-226, 251-252, 336-338, 376-379).
The ALJ found that appellant’s testimony that she would have deleted the summer school entries was not credible. In support of his determination, he cited: 1) the fact that appellant had no formal method of recording such entries and no method of keeping track of who had provided the requisite documentation; 2) appellant’s conduct vis-à-vis River Rouge High School social studies teachers Glenn DeFrain and Charles Hall; 3) appellant’s statements during the district’s investigation of the transcript irregularities; 4) Principal Rosa Benford’s testimony that appellant was authorized to make changes on students’ transcripts only with proper documentation; and 5) the fact that appellant had been directed by Ms. Benford both in August or September 2006 and in January 2007 to review the transcripts of senior students to ensure that they would have enough credits to graduate in June 2007.
We are not persuaded by appellant’s challenges to the ALJ’s determination that her testimony that she would have deleted these entries was not credible. The ALJ was in a superior position to assess appellant’s credibility, and we give appropriate deference to him in that regard. We are persuaded of no error in the findings he cited in support of his credibility determination. Appellant’s testimony was contradictory as it related to her claim that she had previously deleted transcript entries that she had made based solely on students’ representations. She testified, “I trusted the students…and it’s never---it had never been a problem. You know, if someone had told me something, it came through. So it never was a problem.” (Tr, p 252). She also testified, however, that she had removed grades based on students’ failure to provide documentation. (Tr, p 338). In this exception, she argues that “she had in fact already done so [i.e., deleted entries] on numerous occasions in the past.” (Appellant’s brief in support of exceptions, p 25). There was no testimony that she had done so on “numerous” occasions and, in any event, we are not persuaded that the ALJ erred in finding implausible her uncorroborated statement that she had ever deleted such entries. The ALJ reasonably disbelieved appellant’s explanation of her conduct, as it was contrary to the common sense policy, described by Ms. Benford, that appellant was authorized to make changes on transcripts only with proper documentation. (Tr, p 136). Appellant’s union representative, Donald Fitzpatrick, who previously served as a River Rouge secondary level principal, also testified that it was not proper to enter grades or credits on a transcript based solely on a student’s word. (Tr, p 262-265). We further note that appellant gave no credible explanation for her entry of grades of C for these students.
We also find that appellant’s statements to Assistant Principal Roy Harris and Mr. DeFrain cast considerable doubt on her testimony and support the determination that she knew that MS and JP were not entitled to American History summer school credit. Three social studies credits are required for graduation in River Rouge Public Schools. Appellant called Mr. DeFrain on about April 23, 2007, and told him that MS and JP each needed social studies credit. She asked him if they could enter one of his classes. He told her that he needed to think about her request and that he would talk with her about it later. The next morning, he went to appellant’s office during the first hour of the school day, intending to tell her that there was not enough time remaining in the school year for the students to enter the class and study enough material to receive credit. When he started to ask her about the students, appellant said, “Oh, no. It’s all right. It’s all been taken care of.” (Tr, pp 87-88, 94, 100-101). On about the same day, appellant sent MS and JP to Mr. Hall. They asked if they could enter his class because they needed the credit to graduate. Mr. Hall told them to speak with Mr. Harris and he said that he too needed to speak with Mr. Harris, who had directed teachers that no further class changes would be allowed. Mr. Hall asked Mr. Harris about the students’ request on April 24. Mr. Harris told him that he would look into the matter. Later that day, Mr. Hall contacted Mr. Harris by telephone to find out if he had to prepare course materials for MS and JP. By that time, MS and JP had spoken with Mr. Harris about entering Mr. Hall’s class and Mr. Harris had telephoned appellant about the students’ request. Appellant had told him that there had been a misunderstanding, that she had told MS and JP to try to enter Mr. Hall’s class because they had been acting up in her office, that the situation had taken care of itself and that there was no need for Mr. Harris to do anything. Mr. Harris told Mr. Hall that the matter had been taken care of, that there had been a misunderstanding, that appellant had been joking with MS and JP and that there was nothing for him to worry about. (Tr, pp 11, 13-14, 72-74, 78-86). The ALJ reasonably found that, if appellant believed that the April 24 transcript entries for MS and JP were legitimate, she would not have involved Mr. DeFrain and Mr. Hall, and her responses to Mr. Harris and Mr. DeFrain raise reasonable suspicion about how she handled those students’ credit deficiencies.
We also agree with the ALJ that appellant made untrue statements during an April 30 meeting with Mr. Harris and Ms. Benford about documentation to justify her entries for MS and JP. The testimony of both Mr. Harris and Ms. Benford supports the finding that appellant told them during an April 30 meeting that she was waiting for a Southwestern High School counselor, whom she named, to send to her by facsimile the documentation supporting her entries of summer school American History for MS and JP. Mr. Harris testified that appellant stated that she had spoken with the Southwestern counselor, that the counselor was preparing the documents and that he was going to fax them to her because he knew she was waiting for them. The April 30 meeting was adjourned to give appellant an opportunity to gather documentation. During the recess, Mr. Harris traveled to
Appellant also challenges the ALJ’s finding that, during its investigation, the district gave her the opportunity to explain her rationale for making the questioned entries. According to appellant, this finding shows that the ALJ placed the burden of proof on her to explain her actions. We disagree. The ALJ’s statement, which was supported by the testimony of Mr. Harris and Superintendent Marie Miller, was made in the context of consideration of appellant’s testimony that Ms. Benford had authorized her to change grades and courses on transcripts without documentation. (Tr, pp 43, 154-157, 222-223). Appellant testified that she had not made that claim of authorization during her May 11 meeting with administration officials because she “wasn’t asked that question” at that time. (Tr, p 223). The ALJ’s observation was not an assignment of the burden of proof but only a reasonable comment on appellant’s testimony, which he rejected as not credible. Appellant further challenges this finding of the ALJ by arguing that the list of alleged transcript irregularities changed during the course of the district’s investigation and that, “If River Rouge cannot keep the names of the students straight, it hardly seems logical to draw conclusions about Baskerville’s inability to respond with specificity to an ever-changing list of students, and allegations.” (Brief in support of appellant’s exceptions, p 29). Given the context of the ALJ’s statement, the fact that the list of alleged irregularities changed during the course of the district’s investigation is not relevant. In any event, the list of transcripts to which appellant had made questioned changes did not change dramatically during the course of the investigation and, most significantly, the irregularities in the transcripts of MS, JP and DD were matters of concern from the first day of the investigation, April 24, 2007. (Exhibit 1).
In addition, we find that the ALJ reasonably found that appellant’s conduct may have been motivated by her failure to perform senior transcript reviews in a timely and satisfactory manner. The questioned entries for seniors MS, JP and DD were made on April 24, 2007, well after appellant was directed to review transcripts. The only reasonable conclusion is either that appellant did not satisfactorily review those students’ transcripts in a timely manner or that she was aware of their credit shortfalls but took no action on deficiencies until the final quarter of the school year. By that time, the options of after school or night classes were no longer available, the precise scenario Ms. Benford had sought to avoid. (Tr, pp 120-121, 137; Exhibit 18).
Further challenging the ALJ’s finding that she had a motive to falsify the transcripts of MS, JP and DD, appellant cites testimony about when students were allowed to transfer into a class after the start of the term. She argues that she had no reason to lie because this evidence showed “that these problems could be solved at any time.” (Brief in support of appellant’s exceptions, p 26).[4] Even if students could enter a class “at any time,” however, we do not find that appellant would therefore have had no reason to conceal her failure to review senior transcripts in a timely manner, as she was twice directed to do. In any event, the evidence does not establish that a student could transfer into a class “at any time.” Mr. Hall testified that, although new students can enroll in the school and enter classes at any time during the year, he could not remember any student changing classes in the fourth quarter, which begins in mid-March. If he had been told by Mr. Harris to accept MS and JP into his class in April, he would have been obliged to do so, but he would not have agreed with the decision. (Tr, pp 78-86). Mr. DeFrain agreed with Mr. Hall that April 24 was too late in the school year for a student to start a class. (Tr, p 94). Mr. Fitzpatrick testified that the school administration tried to limit class changes “to the first couple of weeks of a semester” but that changes had been allowed until “almost a week to go in a quarter.” (Tr, p 264). He did not testify that changes had ever been allowed as late as April and we disagree with appellant’s apparent suggestion that his testimony showed that a student could enter a class at the end of the last quarter of a semester. In addition, Principal Benford testified that all of the credits upon which the charges were based were disallowed and that the students were given three options to earn the credits. Those options did not include entering a class taught at the high school. (Tr, p 142). Thus, it is clear that the factual basis of appellant’s argument is faulty.
For all these reasons, we deny appellant’s second exception. We find that the ALJ did not err in finding that the district proved the charges involving the transcripts of students MS, JP and DD.
Appellant’s exception 3 is that the ALJ shifted the burden of proof to her with respect to the charge involving student JF. Appellant testified that her April 26, 2007 English 10 entry on JF’s transcript was based on documentation from another school. She was unable to locate the alleged documentation, however, and the district determined that JF had not earned the challenged English 10 credit. (Tr, pp 142, 206-208, 248-249; Exhibit 5). According to appellant, the ALJ improperly imposed on her “an ongoing duty to produce documentation to River Rouge” to support her entry on JF’s transcript. (Brief in support of appellant’s exceptions, p 30). We find no error. Contrary to appellant’s assertion, the ALJ did not “create[] a duty.”
In exception 4, appellant argues that the ALJ shifted the burden of proof to her with respect to the charge involving student MH. Her argument in support of this exception, however, addresses the sufficiency of the evidence supporting this charge, which alleged that appellant improperly entered English 11 (grade B) on MH’s transcript on September 20, 2006. We are not persuaded by this challenge.
Each semester of English at
Appellant’s exception 5 is that the ALJ erred in finding that appellant gave student AS credit that he did not earn. On April 27, 2007, appellant entered English 10 (grade A) on AS’s transcript. At that time, AS’s transcript already included English 9 (grade D), English 9 (grade D-), English 10 (grade E), English 10 (grade D), English 11 (grade D+), English 11 (grade C+) and English 12 (grade D+). (Exhibit 8). Appellant testified that she called AS to her office on April 27. She denied that she told AS at that time that, because he had failed a semester of English 10, he did not have enough English credits to graduate. She admitted that, in AS’s presence, she changed an entry on his transcript from Drama 1 to English 10. When asked if she told AS that the drama class did not count as an English class, she testified, “No. Drama does count towards English.” (Tr, pp 242-243). She also testified that she made the English 10 entry on April 27 pursuant to Ms. Benford’s directive that students’ transcripts should reflect English 9, English 10, English 11, and English 12, and that AS’s drama class, “which fell under English, was switched to English 10.” (Tr, pp 210-211).
When speaking with Superintendent Miller on May 11, 2007, appellant admitted that she knew AS did not take the English 10 for which she had given him a grade of A. Appellant told Ms. Miller that she had changed a drama entry (with a grade of approximately B-) to English 10. According to Ms. Miller, appellant was surprised that she (appellant) had entered a grade of A for the English 10 class. (Tr, pp 156-157, 162-163). Although in the past, the high school’s English requirement could be satisfied by taking various courses (including drama), it is currently required, as noted above, that students successfully complete two semesters each of English 9, English 10, English 11 and English 12. (Tr, pp 92, 101-102).
Based on this evidence, we find no error in the ALJ’s conclusion that appellant wrongfully entered English 10 on AS’s transcript on April 27, 2007. Appellant presented no credible evidence in support of her claim that she was justified in making that entry. There was no evidence that it was appropriate to rename a drama class English 10 on a student’s transcript, and the fact that AS was deficient in the required English 10 one half credit renders appellant’s explanation particularly suspect. The district determined that AS did not earn the credit awarded to him by appellant, and, in order to attempt to earn the credit, he was required to choose from the three options offered to all of the involved students. Exception 5 is denied.
In her sixth and final exception, appellant argues that the penalty of discharge is too harsh. The ALJ’s determination that discharge is warranted was based on several considerations. He observed that honesty and integrity are essential attributes of teachers, that teachers have a duty to model honest conduct, that appellant knowingly and repeatedly made false transcript entries, that she fabricated excuses for her conduct and that her motive was to cover up her negligent review of seniors’ academic standings. He further found that appellant’s conduct harmed the reputation of the district and diminished the achievements of students who legitimately earned academic credit.
Appellant argues that she made changes to students’ transcripts in her attempt “to fix the ongoing problems” with the computerized transcript system. (Brief in support of appellant’s exceptions, p 37). Her statements to administration officials and her testimony at the hearing, however, belie this claim. There was no evidence that any of the charged transcript alterations were prompted by computer errors. In addition, as discussed above, we agree with the ALJ’s determination that appellant’s conduct may have been motivated by her desire to conceal her failure to review senior students’ transcripts in a satisfactory and timely manner.
Appellant argues that her record militates against discharge. While it is true that appellant was not disciplined for similar conduct during her 29 years of service, we are not persuaded of evidence that weighs significantly in her favor. In several respects, the facts in this case are similar to those in Bradley v Crestwood School District Board of Education (95-24),[6] where a high school counselor was charged with complicity in a student’s submission of work that was not her own. In Bradley, as in this case, the effect of the counselor’s conduct, if undetected, was that a student would have graduated without having honestly earned required credit. In the course of carrying out the charged academic cheating scheme, the teacher in Bradley falsely told a colleague that the superintendent had expressed a desire that he give the involved student, who had failed his class, an opportunity to graduate. This Commission agreed with the ALJ that there was reasonable and just cause for discharge. We found that the counselor’s academic dishonesty, which spanned only a one week period after 20 years of satisfactory service, “undermined the most basic precepts of the educational process.” The misconduct impugned the integrity of high school diplomas awarded by the district and thus negatively impacted the school community. So too in the instant case, the unethical actions of appellant showed contempt for the integrity of the diplomas awarded by the district.
Appellant’s actions were, according to Superintendent Miller, against the values and morals of the district. (Tr, p 163). As explained by Superintendent Miller, appellant made her unethical behavior known to many of the involved students, thus compounding the affront to the district’s reasonable expectation that she model appropriate behavior. (Tr, pp 157, 163-164). Those students for whom she modeled unethical behavior were clearly harmed by appellant, upon whom they should have been able to rely confidently for responsible guidance.
Appellant argues that two prior cases support her claim of excessive discipline. We find that her reliance on those cases is misplaced. In both Zangkas v Birmingham Public Schools Board of Education (06-3) and Petroski v Inkster Public Schools (86-24-R), there was abundant evidence in support of the appellants in their professional capacities. We do not find that the instant record compels a similar finding. In addition, in both Zangkas and Petroski, only one of two or three charges was proved. Here, the ALJ found that six of eight charges were proved. Appellant’s misconduct was repeated and prolonged, with improper transcript entries on September 20, 2006, and on three days in April 2007. We also believe that the nature of the dishonest conduct at issue in Petroski -- the signing of a parent’s name to a student’s college application -- is not of the same magnitude of egregiousness as that involved in the instant case. Finally, as in Bradley and in contrast to Petroski, appellant’s dishonesty in dealing with colleagues compounded the gravity of her offense.
For all these reasons, we find that the ALJ did not err in finding that there is reasonable and just cause for discharge in this case. Exception 6 is denied.
ORDER
For the foregoing reasons, and based on the record, we order the following:
Appellant’s motion to reopen the record is denied.
Appellant’s exceptions are denied.
Appellant is discharged.
___________________________________
Gerald D. Dawkins, Chairperson
___________________________________
Dirk Zuschlag, Secretary
___________________________________
Karen K. Leslie, Member
___________________________________
James Petrie, Member
Absent: Sharon C. Peters
DATED: April 18, 2008
[1] Cross-exceptions and a statement in support of a PDO must be filed not later than 10 days after service of exceptions. MCL 380.104(5)(k). Unless otherwise ordered, a party’s response to a motion must be filed within 10 days after service of the motion. 2000 AACS, R 38.151(4). Service is made by delivery or mailing. 2000 AACS, R 38.146. Documents must be received by this Commission before the close of business on the last day of the time limit for filing. 2000 AACS, R 38.145(1). Filing by facsimile is permitted. 2000 AACS, R 38.145(2). According to the proofs of service filed by appellant in this case, appellant’s exceptions and motion were personally served on appellee on February 19, 2008. They were also received by this Commission on that date. Appellee’s cross-exceptions, statement in support of the PDO and response to appellant’s motion were due by the close of business on February 29. Those pleadings were hand delivered to appellant on February 29, according to appellee’s proofs of service, but they were not received by this Commission until March 4.
[2] We express no opinion about the propriety of the ALJ’s ruling as to student CG.
[3] Remand to the ALJ at this stage in the proceedings would present significant challenges to compliance with the mandatory timelines for the review of claims of appeal in tenure cases. MCL 38.104(5). We review appellant’s first exception only assuming arguendo that such relief could be available in an appropriate case.
[4] We assume that appellant’s reference to “these problems” relates to senior students being short of credits for graduation.
[5] The record offers no explanation for the fact that the course number for the English 11 class entered by appellant differed from that of the other English 11 classes listed on MH’s transcript. (Exhibits 7, 42).
[6] Aff’d, unpublished memorandum opinion of the Court of Appeals, No. 194791 (January 13, 1998), lv den 459 Mich 886 (1998).