v                                                                           DOCKET NO. 09-23





Attorney for Appellant:    Michael K. Lee

                                      LAW OFFICES OF LEE & CORRELL

                                     24901 Northwestern Highway

                                     Suite 113

                                     Southfield, Michigan 48075


Attorney for Appellee:     John L. Gierak

                                     Mark W. McInerney

                                      CLARK HILL PLC

                                      500 Woodward Avenue

                                     Suite 3500

                                      Detroit, Michigan  48226





On April 27, 2009, appellee Grosse Pointe Public Schools Board of Education voted to lay off several teachers effective at the end of the 2008/2009 school year.  On May 18, 2009, thirty of those teachers filed individual claims of appeal with this Commission contending that their “rights under the [Tenure] Act may have been violated because there may be a probationary, or otherwise less qualified member of the professional staff who was retained while the [appellants were] laid off.”  A hearing in this matter was held on October 6, 2009.  The administrative law judge (ALJ) issued his preliminary decision and order (PDO) on November 20, 2009.


The only claim remaining for the Commission to review is that of Jeanne Dolson (hereinafter appellant).[1]  The ALJ found that appellant’s tenure rights had been violated by appellee when, at the beginning of the 2009/2010 school year, it recalled a probationary teacher to a librarian position for which appellant, a laid-off tenured teacher, was certified and qualified.  The ALJ ordered appellee to reinstate appellant to a full-time position with back pay.  On December 10, 2009, appellant filed exceptions to the PDO and on December 18, 2009, appellee filed cross-exceptions.


Appellee conceded, and the ALJ found, that appellee violated appellant’s tenure rights when it recalled a probationary teacher to the librarian position for which appellant, a laid-off tenured teacher, was certified and qualified.  Thus, there is no disagreement that appellant’s tenure rights have been violated.  The remedy for that violation is in dispute, however.  The underlying issue raised in appellant’s exceptions is whether appellee is required to place her in the specific librarian position occupied by the probationary teacher, or whether appellee may place her in any position for which she is certified and qualified and that would make her whole.  Appellant argues that Article IV, §5 of the Tenure Act states that a laid-off tenured teacher shall be appointed to the first vacancy for which the teacher is certified and qualified, that the term “first vacancy” is clear and requires no interpretation, and that the librarian position was in fact the first vacancy that arose after she was laid off.

The ALJ addressed this issue as follows:

The pervasive purpose of the Act is to ensure a degree of security for school district employees and eliminate capricious and arbitrary employment policies.  Munro v Elk Rapids Schools, 383 Mich 661, 690-691 (1970).  The Act, however, does not otherwise diminish or interfere with the administrative power of the local controlling board, nor require it to indulge in idle ceremonies.  Rehberg v Melvindale Board of Education, 330 Mich 541, 548 (1950).  In my view, the purpose of the provision requiring the district to recall a teacher on layoff status to the first vacancy for which he or she is certified and qualified is to guarantee the tenured teacher the right to continuous employment with the district.  MCL 38.91(1).  However, the right to be placed in the first vacancy is not a right to be placed in a specific teaching assignment in the district.  (PDO, p5).[2]


In its cross-exceptions, appellee contends that this appeal is moot because appellant has since been made whole.  Appellee claims that, after the PDO was issued, appellant accepted recall to an industrial technology position in which she had been substituting for the 2009/2010 school year, and that the recall included full back pay and benefits.  Appellee did not file a motion to reopen the record to include this new evidence, however.  This information is therefore not part of the record and may not be considered by the Commission.[3]

          Next, appellee submits that the Commission lacks jurisdiction to consider this appeal.  Appellee argues that, although appellant filed a timely appeal of her layoff, she has never submitted a claim of appeal with respect to the recall issue.  In the PDO, the ALJ rejected this claim, which appellee first raised in its post-hearing brief.  The ALJ disagreed with appellee’s interpretation of appellant’s claim of appeal, finding that the claim of appeal included any probationary teacher who was retained by appellee while appellant was laid off.  The ALJ also noted that appellee had not provided appellant with notice of its recall of the probationary teacher in question, thereby tolling the 20 day appeal period.[4]  Appellee did not file an exception to this ruling, thereby precluding our review of this issue.[5]

          Addressing the merits of appellant’s exceptions, appellee asserts that the ALJ properly balanced appellant’s recall rights and the district’s prerogatives.  Appellee contends that appellant’s recall to a position for which she is certified and qualified, with full back pay, protects her tenure rights while preserving the district’s right to make particular assignments.

          This Commission has held that the Tenure Act does not create a right to any particular work assignment for a tenured classroom teacher.  Scott v Board of Education of the Lansing School District (02-4); Purcell v Ferndale School District (76-56); Barrow v Portage School District (93-38).  Accordingly, an on-staff tenured teacher has no tenure right to claim a particular assignment.  Poland v Board of Education of the Grand Ledge Public Schools, 156 Mich App 691(1986).  We believe that this principle also applies to the instant situation involving recall rights under Article IV, § 5 of the Act.  A laid-off tenured teacher has no greater right to a particular assignment by virtue of his/her recall rights than his/her on-staff tenured colleagues.

In addition, matters such as arrangement of teaching assignments, scheduling of classes and handling of finances are solely within the province of the locally elected members of the school board.  Chester v Harper Woods School District, 87 Mich App 235 (1978); Keeton v Board of Education of the Athens Area Schools (84-9).  This Commission must accord deference to a controlling board's determinations in these matters absent a finding of bad faith, subterfuge or arbitrary and capricious action.  Id.  Appellant cites no authority that supports her claim that this deference is not applicable in the case of the recall of a laid-off tenured teacher pursuant to Article IV, § 5.  As noted by the ALJ, the Tenure Act provides certain safeguards against the arbitrary or unreasonable dismissal of tenured teachers; however, it does not otherwise diminish or interfere with the above mentioned administrative powers of local boards.  Rehberg v Melvindale Board of Education, 330 Mich 541, 548 (1951).  Nor does the Act require controlling boards to indulge in idle ceremonies.  Id.  If this Commission were to order appellee to recall appellant to the librarian position in question, following her recall appellee could immediately transfer her to another position for which she is certified and qualified, with no violation of the Tenure Act.  Thus, the remedy appellant seeks could result in precisely the type of idle ceremony that Rehberg proscribes.

The only reasonable interpretation of the “first vacancy” language of Article IV, § 5 is that it refers to the timing of recall and that it does not create a right to a particular position.[6]  In this case, the ALJ ordered that appellee is to pay appellant all salary and benefits lost from the beginning of the 2009-2010 school year, which is when the probationary teacher was recalled to the librarian position.  We find that this result is consistent with the intent of the Teachers’ Tenure Act.  We further note that appellant’s proposed interpretation would present considerable practical challenges, including how to determine which vacancy was “first” when multiple vacancies occur simultaneously.

The underlying essential protection provided by the Teachers’ Tenure Act is the right to continuous employment.  In this case, placement of appellant in an assignment for which she is certified and qualified and which renders her whole will satisfy appellee’s obligations under the Tenure Act.  Accordingly, we uphold the ALJ’s order that appellee reinstate appellant to a position for which she is certified and qualified, with any back pay owed, effective at the beginning of the 2009/2010 school year.


Based on the record and for the foregoing reasons, we order:


Appellant’s exceptions are denied.


Appellee shall reinstate appellant Jeanne Dolson to a full-time position for which she is certified and qualified, with all salary lost subject to a determination thereof pursuant to Shiffer v Board of Education of the Gibraltar School District, 393 Mich 190 (1974).



James Petrie, Chairperson




Karen K. Leslie, Secretary




Patricia A. Cole, Member




Ritschard P. Homberg, Member




Dirk Zuschlag, Member


DATED:  January 27, 2010




[1] At the prehearing conference held in this case on September 16, 2009, the ALJ asked appellants’ counsel to identify all appellants whose employment status remained in dispute.  Some of the appellants had been recalled at the beginning of the 2009/2010 school year.  In a September 24, 2009 letter to the ALJ, appellants’ counsel identified only two teachers, Jeanne Dolson and Ronald Kornas, whose employment status was still in dispute.  The ALJ found that Ronald Kornas had not filed a claim of appeal and that the Commission therefore lacked jurisdiction to consider his tenure rights.  The ALJ also found that another appellant, Rachel Walpole, had not filed a claim of appeal, disposed of proposed evidence regarding appellant John Hedelund, and ruled that the claims of the remaining appellants had been abandoned.  No exceptions were filed to these rulings and they are therefore not subject to our review.  MCL 38.104(5)(l).

[2] In support of his conclusion that appellant was not entitled to the librarian position, the ALJ cited five layoff/recall decisions in which the Commission’s orders for reinstatement did not include orders for placement in particular positions.  Appellant attempts to distinguish those cases from the present circumstances.  We find it unnecessary to address this argument as none of the cited cases discussed the issue in question.


[3]At the hearing, the ALJ allowed evidence that appellee had offered, through her union representative, to recall appellant to the industrial technology position and that appellee proposed to make up any financial loss she had incurred.  In the PDO, the ALJ noted that his ruling admitting this evidence, to which appellant objected, was of questionable validity, citing MRE 408 and Shannon v Michigan Center Board of Education (84-56) (Motion Decision May 9, 1986).  After the hearing, appellee filed a motion to delay the release of the PDO until after its board of education met to vote on the above offer of employment.  The ALJ denied the motion, and no exception was filed to that ruling.  The information appellee now offers concerns events that occurred after the record in this case was closed.  It is clear that that evidence cannot be considered.  MCL 38.104(5)(m).

[4]Kramer v Van Dyke Public Schools, 134 Mich App 478 (1984).

[5]While appellee raises the recall jurisdictional issue in its cross-exceptions in response to appellant’s exception that she was entitled to the librarian position, if it disagreed with the ALJ’s specific ruling on the jurisdictional issue, it was required to file an exception.  Hoose v Board of Education of the Lapeer Community Schools (94-15), affirmed, Court of Appeals No. 183734 (unpublished opinion, 8/13/96).  In any event, we note that evidence of the recall of the probationary teacher to the librarian position was presented at the hearing.  Appellee can reasonably be considered to have agreed to a de facto amendment of the pleadings to conform with these proofs, thus clearly placing the issue of the recall of the probationary teacher to the librarian position before the ALJ.

[6] We note that the Court of Appeals in Chester v Harper Woods School District, 87 Mich App 235, 245 (1978) refers to Article IV, § 5 as the “right of first recall.”