STATE TENURE COMMISSION
v Docket No. 05-38
BOARD OF EDUCATION OF THE
BUCHANAN COMMUNITY SCHOOLS,
Attorney for Appellant: Theresa J. Alderman
Co-Counsel: William F. Young
WHITE, SCHNEIDER, YOUNG & CHIODINI, P.C.
Attorney for Appellee: Lisa L. Swem
THRUN LAW FIRM, P.C.
DECISION AND ORDER ON EXCEPTIONS
Appellant Robin Bourgeois, a tenured teacher, filed a claim of appeal with this Commission on
Appellant argues that the administrative law judge erred in finding that appellee did not consent to appellant’s resignation, that there was no violation of statutory due process in the notice given to appellant, and that this Commission has no jurisdiction over her claim of disparate treatment.
It is not disputed that appellant was a tenured teacher employed by appellee when she notified appellee of her intention to resign her employment prior to the start of the 2005-2006 school year. Appellant’s resignation was prompted by her acceptance of employment by another school district. She does not dispute that her notice of her intention to resign was submitted to appellee within 60 days of
Appellee first took action on appellant’s resignation at its
MOTION by Member Worvey, seconded by Member Burnett the Buchanan Board of Education accept the resignation of Robin Bourgeois as high school special education teacher effective immediately.
Immediately thereafter, the board took action on three certified staff appointments and several extracurricular appointments. The next item for consideration was described as "Petition of Michigan Tenure Commission;" action taken on that item was as follows:
MOTION by Member Burnett, seconded by Member Skene the Buchanan Board of Education petition the state of Michigan Tenure Commission to remove tenure status from Robin Bourgeois.
The matter of appellant’s continuing tenure rights was discussed in closed session during the September 19 board meeting. Upon return to open session, the board considered the matter described as "Determination to Invoke Forfeiture of Rights to Continuing Tenure." The relevant minutes provide as follows:
MOTION by Member Burnett, seconded by Member Welsh the Buchanan Board of Education adopt the following resolution:
1. Article V, Section 1 of the Michigan Teachers’ Tenure Act states:
"No teacher on continuing tenure shall discontinue his services with any controlling board except by mutual consent, without giving a written notice to said controlling board at least 60 days before September first of the ensuing school year. Any teacher discontinuing his services in any other manner than as provided in this section shall forfeit his rights to continuing tenure previously acquired under this act."
2. Robin Bourgeois was employed as a teacher with the
3. In July, 2005, Robin Bourgeois accepted an employment offer from the Edwardsburg Public Schools, but did not notify the Buchanan Community Schools of her intent to terminate her employment.
5. The Board did not consent to Robin Bourgeois’ untimely resignation.
6. In correspondence dated
7. Robin Bourgeois has been given notice and an opportunity to respond to the Superintendent’s charges and recommended action.
8. The Board has carefully considered all of the information presented for this matter.
1. Robin Bourgeois did not comply with the 60-day notice requirement of the Teachers’ Tenure Act in resigning from her employment as a teacher with the Buchanan Community Schools.
2. The Board did not consent to Robin Bourgeois’ untimely resignation from the Buchanan Community Schools.
3. The Board invokes Article V, Section 1 of the Michigan Teachers’ Tenure Act,
4. The Board Secretary shall promptly notify Robin Bourgeois and the Superintendent of the Edwardsburg Public Schools of this Board’s action.
5. All resolutions and parts of resolutions insofar as they conflict with the provisions of this resolution be and the same are rescinded.
In her first amended claim of appeal to this Commission, appellant alleged that, at its September 6 meeting, appellee accepted her resignation "without reservation" and that appellee thus consented to her untimely resignation. According to appellant, appellee "publicly consented to Appellant’s resignation and was therefore without subsequent authority to invoke forfeiture of her tenure." Appellant also alleged disparate treatment in that for several years appellee had accepted "without exception" the untimely resignations of teachers similarly situated to appellant, and that appellee’s invocation of tenure forfeiture in her case was arbitrary and capricious and thus invalid. She further alleged that appellee failed to provide timely notice to her of its action to invoke forfeiture of tenure. In support of this latter claim, she alleged that appellee failed to give her advance notice of its "intent to change course and begin enforcing the forfeiture provisions of the Act." She asked that her right to continuing tenure be reinstated.
Appellee filed a motion for summary disposition. In a decision and order served on
We find no error in the administrative law judge’s entry of summary disposition for appellee. Under
Appellant argues that the board’s action in accepting her resignation "effective immediately" establishes as a matter of law that there was "mutual consent" to her resignation and that therefore appellee had no further authority to invoke the forfeiture provision of
Consent is a concurrence of wills. It is the voluntary yielding of one’s will to the proposition of another. Consent contemplates agreement; it is the act or result of coming into harmony or accord. Black’s Law Dictionary 377 (4th Ed 1968).
Declining to find in Cunningham that a teacher’s breach of a contractually imposed duty was sufficient to establish intent to resign "where, as a matter of fact, no such intention exists," we found that consent must be "actual, real, and freely given."
In this case, it is not clear if the "effective immediately" language refers to appellant's immediately effective resignation or to the board's immediately effective acceptance of her resignation. In any event, the only reasonable reading of the board's September 6 action is that it did not consent to appellant's resignation. While the first motion concerning the resignation did not expressly address the issue of consent, action on the subsequent motion clearly showed that the board was not in accord with appellant's untimely resignation. We find that the fact that the board’s September 6 actions concerning appellant’s resignation did not occur at the same time on its agenda does not raise a factual issue regarding its intention. On the contrary, the September 6 minutes establish without equivocation that, as a matter of fact, the board was not in accord with appellant's untimely resignation and that no intention to consent to her resignation existed. We are not persuaded by appellant's argument that the decision in Stevens v Dewitt Public Schools, STC 77-35 (Decision on Motions,
Appellant also argues that she was entitled to notice that the board was "changing its policy on tenure revocation." Even assuming such a change in policy, appellant cites no authority which supports her claim of a due process right to such notice. The administrative law judge properly ruled that appellant was afforded due process in that she was given both notice that appellee might invoke the forfeiture penalty and an opportunity to respond to the proposed action. Steinway, supra.
Finally, appellant challenges the administrative law judge’s ruling that this Commission would not consider her claim of disparate treatment. We have held that such claims are not within the scope of this Commission’s review.
For the foregoing reasons, we order:
Appellants’ exceptions are denied.
Appellee’s motion for summary disposition is granted.
Appellant’s claim of appeal is denied.
Gerald D. Dawkins, Chairperson
Dirk Zuschlag, Secretary
Karen Leslie, Member
Sharon Peters, Member
James Petrie, Member
 Appellant later submitted a "disparate treatment list" with names of 20 allegedly similarly situated teachers who were treated differently.
 Because we find that appellee clearly expressed its lack of consent on September 6, we do not address the issue of appellant's authority to invoke forfeiture at a later date if lack of consent had not been shown on September 6.