BENTON ALLANAH v FLINT 08-53  10/21/09








v                                                                           Docket No. 08-53






Attorney for Appellant:    Michael K. Lee

                                      Julian R. Williams

                                       LAW OFFICES OF LEE & CORRELL

                                      24901 Northwestern Highway

Suite 113

                                      Southfield, MI  48075


Attorney for Appellee:     Philip A. Erickson

Daniel W. Mabis


325 E. Grand River

Suite 250

East Lansing, MI  48823




          On August 20, 2009, Administrative Law Judge James R. Ward (ALJ) issued a preliminary decision and order (PDO) denying the claim of appeal of appellant Allanah Benton, a tenured teacher.  The ALJ found that appellee Flint Community Schools Board of Education had reasonable and just cause to discharge appellant.  On September 9, 2009, appellant filed two exceptions to the PDO and appellee filed three exceptions.  Cross exceptions were filed by appellee on September 18, 2009, and by appellant on September 21, 2009.



          The charges are based on appellant’s alleged conduct involving a 12 year old student in October 2007.  The ALJ found that appellant engaged in unprofessional conduct with the student by carrying on a romantic relationship with him that included oral sex and sexual intercourse.  In order to protect the identity of the student, we will refer to him as “Student,” as did the ALJ in the PDO.

          In her first exception, appellant argues that the ALJ erred in making the following ruling:

Appellant alleges that Student has a reputation for dishonesty.  (Appellant’s Post-hearing Brief, p 42).  Appellant’s assertion that Student is dishonest is based upon the testimony of Shelbi Redmond, the teacher in the classroom next door to Student’s classroom when he was in the fifth grade.  Ms. Redmond testified that whenever she corrected Student’s misbehavior, Student would deny any wrongdoing.  (Tr Vol I, p 209).  Those specific instances of conduct were not at issue at the hearing.  Specific instances of conduct to support or attack credibility are inadmissible as evidence.  MRE 608.  (PDO pp 7-8).


          Appellant argues that this ruling was contrary to MRE 607, which provides that the credibility of a witness may be attacked by any party, and MRE 608(a), which provides in part:

The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness.


          Appellant’s argument is that the testimony of teachers Laura McLone and Shelbi Redmond was admissible as opinion or reputation evidence concerning the credibility of Student.  Ms. McLone testified that, as Student’s teacher during the 2006-2007 school year, she had disciplinary difficulties with him on almost a daily basis.  She testified that, on one occasion, he wrongly accused her of hitting him.  (Tr, p 237).  Ms. Redmond testified that, as the teacher whose classroom was next to that of Ms. McLone during the 2006-2007 school year, she had a few interactions with Student.  She testified that, “On occasion there would be disciplinary situations with” him.  (Tr, pp 208-209).  As an example of his defiant behavior, she testified:

Most of the time [Student was] very defiant, often in denial of whatever the action was even if I saw it on my own, to—I could say, you know, “Please keep your hands to yourself.”  “Those weren’t my hands.  I wasn’t doing nothing” would be his reaction to me.”  (Tr, p 209).


          We are persuaded of no error in the ruling of the ALJ.[1]  Even assuming that evidence of opinion or reputation based on events occurring during the 2006-2007 school year would have been relevant, appellant mischaracterizes the testimony of Ms. McLone and Ms. Redmond as reputation evidence.  Neither of the witnesses testified concerning Student’s reputation for truthfulness or untruthfulness or, indeed, concerning their opinions concerning Student’s character for truthfulness or untruthfulness.  Their testimony was therefore not admissible under MRE 608(a).  Rather, their testimony concerned specific instances of conduct and the ALJ did not err in ruling that it was inadmissible pursuant to MRE 608(b), which provides in pertinent part:

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence.


          This exception is therefore denied.

          In her second exception, appellant argues that the ALJ erred in finding that appellee proved the charges by a preponderance of the evidence.  In support of this exception, appellant challenges both the credibility of Student and the statement of the ALJ that, if certain statements made by Student during a recorded telephone conversation with appellant were untrue, “[O]ne would naturally expect Ms. Benton to have issued a sharp verbal correction.”  (PDO p 7).[2] 

          In our consideration of appellant’s argument concerning Student’s credibility, we give appropriate deference to the ALJ, an impartial, experienced examiner who saw and heard Student and thus had a superior opportunity to assess his credibility.  Foreman v Board of Education of the Marshall Public Schools (06-34), Jones v Board of Education of the Detroit Public Schools (98-38).

          The ALJ found that Student testified credibly.  In support of that finding, the ALJ stated that Student appeared to be truthful during his testimony, which was corroborated by a recorded telephone call between Student and appellant.  The ALJ expressly found that Student’s testimony was consistent and reliable regarding the significant events that gave rise to the charges.  He found that Student’s inability to recall certain details, including the time of day an event happened or how he got home from appellant’s home on a particular day, was understandable given the passage of time.

          Appellant claims inconsistencies in Student’s testimony that cast doubt on his credibility.  Student testified without equivocation, however, that, on the Sunday before Halloween in 2007, he had oral sex and sexual intercourse with appellant, and that, on Halloween 2007, they engaged in sexual intercourse. (Tr, pp 85-95).  We agree with the ALJ that his uncertainty about other details did not rise to a level that cast doubt on his testimony about the fact and timing of his sexual encounters with appellant.[3]

          Appellant argues that the instant facts are similar to those in Beaudoin v Port Huron Area School District Board of Education (85-20), where the State Tenure Commission found that charges of a sexual relationship of a teacher and student were not proved.  We are not persuaded that the Beaudoin decision lends support to appellant’s challenge to the instant charges.  Significant differences between the facts in the instant case and those in Beaudoin include the fact that the student with whom it was alleged that Ms. Beaudoin had an inappropriate relationship did not testify before the State Tenure Commission hearing officer.  The hearing officer and the State Tenure Commission were thus restricted to the transcript of the local hearing in assessing the student’s credibility.  In the instant case, in contrast, the ALJ had the opportunity to observe Student’s demeanor and to assess his credibility based on his firsthand observation of his testimony.  In addition, the teacher in Beaudoin testified before this Commission’s hearing officer, while appellant did not testify in the instant case.

          Further distinctions between the instant case and the facts in Beaudoin include the Beaudoin student’s several versions of significant events.  In this case, there was no evidence that Student’s version of the relevant events has changed.  In addition, it is noteworthy that, in Beaudoin, there was no evidence that corroborated the student’s testimony of an inappropriate relationship.  In contrast, the instant record includes the recording of a telephone conversation between Student and appellant.  (Exhibits 1A-1B).  We reject appellant’s challenge to the ALJ’s assigning of significant evidentiary weight to the recording.  While we agree, as acknowledged by the ALJ and by appellee, that parts of the recording are not comprehensible, it is not therefore without significant evidentiary value.  It is clear, for example, that, during the conversation, Student stated, “I thought you was my girlfriend,” and “I got me a grown woman, and I feel good about myself.”  The evidence supports the ALJ’s finding that appellant did not issue a “sharp verbal correction” to those statements.  (PDO, p 7).  We agree with the ALJ that appellant’s failure to issue such a response is significant and we find that the recording strongly supports the allegation of an inappropriate relationship.  

          In Beaudoin, there was evidence that the student’s desire to escape punishment provided a motive for him to lie.  Appellant argues that Student and his mother have a pecuniary interest in testifying against her and that Student, “or someone else in his household must have deliberately recorded” the telephone conversation.  (Appellant’s brief in support of exceptions, p 43).  We find no evidence to support these allegations and we find no evidence that Student had any reason to fabricate the events of October 27 and October 31, 2007.  For all these reasons, we find that appellant’s challenge to the ALJ’s decision is not supported by the Beaudoin decision.

          In summary, we are not persuaded by appellant’s challenges to the ALJ’s assessment of Student’s credibility or by her other challenges to the ALJ’s conclusion.  We find that appellee proved the charges by a preponderance of the evidence.  We thus deny appellant’s second exception.

          Appellee’s first exception concerns the ALJ’s June 5, 2009 findings regarding the text of the recorded telephone conversation between appellant and Student.  Based on a review of the recording of the conversation (Exhibit 1A), we agree with appellee that the following adjustments should be made to the transcript, as amended by the ALJ on June 5:

          Replace “.  (inaudible)” at the end of line 22, p 6, with “, is you?” [4]

          Change line 23, p 6, from “Oh, you get (inaudible), don’t you?” to “Oh, (inaudible) better chill it, don’t you?”

          Change lines 4-5, p 7, from “(inaudible) with your teacher.” to “(inaudible) to do with your teacher.”

          Change lines 1-2, p 8, from “No.  I’m just playing.  Ain’t you surprised?  I’m happy it’s like that, (Phone beeps).  You” to “No.  I’m just playing.  I ain’t surprised.  I’m happy it’s like that.  (Phone beeps).  You”

          To this extent only, appellee’s first exception is granted.[5]

          Second, appellee argues that the ALJ erred in excluding photographic evidence.  Twelve photographs were offered during the testimony of Stacey Wells, appellant’s husband at the time of the events that gave rise to the charges.  Mr. Wells testified that he took only one of the 12 photographs and that he did so in October 2007.  (Tr, pp 170-176; Proposed Exhibit 7).  Appellee expressly noted that it was not suggesting that any inappropriate conduct was shown in the photographs but argued that they were admissible to show the size of Student during the relevant time period.  Appellant objected to admission of the photographs both because they were not authenticated and because Student had already testified about his height and weight at the time in question.  (Tr, pp 176-177).  The ALJ took the issue of the admissibility of the photographs under advisement and, in an order dated June 5, 2009, he sustained appellant’s objection to their admission.

          We find no abuse of the ALJ’s discretion in this ruling.  Even assuming both the relevance of Student’s size and authentication of the photographs, the evidence was cumulative of other evidence.  (Tr, p 119).  2000 AACS, R 38.172(6); MRE 403.  This exception is denied.

          In its third exception, appellee argues that the ALJ should have found that the testimony of Mr. Wells was credible and that it corroborated the testimony of Student.  The ALJ made no findings concerning Mr. Wells’ testimony.

          We are persuaded of no reversible error.  The Teachers’ Tenure Act does not require the ALJ to address the testimony of every witness and we will not speculate on the ALJ’s reasons for making no findings regarding the testimony of Mr. Wells.  It is clear that the ALJ found that there was sufficient other evidence to support the charges and we agree with that determination.  This exception is denied.









          For the foregoing reasons, and based on the record, we order the following:

          Appellant’s exceptions are denied.

          Appellee’s first exception is granted in part and denied in part.

          Appellee’s second and third exceptions are denied.

          Appellant is discharged.



Karen K. Leslie, Acting Chairperson




Patricia A. Cole, Member




Dirk Zuschlag, Member


Members Absent:  Ritschard Homberg

                            James Petrie


DATED:  October 21, 2009


[1] While the ALJ did not expressly refer to the testimony of Ms. McLone, his rationale regarding Ms. Redmond’s testimony applies equally to that of Ms. McLone relating to the alleged hitting.  We further note that, to the extent that appellant argues that Student told other students that his mother would sue Ms. McLone, the only evidence in that regard was inadmissible hearsay.  (Tr, p 238).

[2]To the extent appellant repeats in this exception the arguments he made in support of his first exception, we will not address them again.

[3] Contrary to appellant’s assertion, her sister did not testify that she drove Student home from appellant’s house on October 31.  (Appellant’s brief in support of exceptions, p 40).  (Tr, pp 227-231).

[4] Page and line references are to Exhibit 1B, a deposition transcript that includes a transcript of the telephone conversation.

[5] We address only the errors alleged by appellee and express no opinion about the accuracy of any part of the transcript of the telephone conversation that is not the specific subject of an exception.