STATE OF MICHIGAN
STATE TENURE COMMISSION
IN THE MATTER OF RYAN RINGLE Docket No. 13-11
Attorney for Petitioner: In propria persona
Attorney for Respondent: Timothy J. Dlugos
White, Schneider, Young & Chiodini, P.C.
2300 Jolly Oak Road
Okemos, MI 48864
DECISION ON
REQUEST FOR DECLARATORY RULING
On May 2, 2013, petitioner Boyne City Public Schools filed a request for a declaratory ruling concerning the interplay of Article II, Section 1(2) of the Teachers’ Tenure Act, MCL 38.81(2), and Article II, Section 3b(1) of the Act, MCL 38.83b(1), as applied to the case of respondent Ryan Ringle. On May 10, 2013, this Commission granted the district’s request, and agreed to issue a declaratory ruling. Respondent filed a response to the request for declaratory ruling on May 13, 2013, and a brief on May 22, 2013.
BACKGROUND FACTS
According to respondent, he began his teaching career with Boyne City Public Schools in November 2009, and he has taught in the district continuously since that time.[1] His teaching performance was rated satisfactory in the 2009-2010 and 2010-2011 school years, minimally effective in 2011-2012, and effective in 2012-2013.
Petitioner’s inquiry involves when respondent earns tenure. The district asks if respondent earns tenure at the end of a four-year probationary period, or whether he only earns tenure if he is rated effective or highly effective in his three most recent performance evaluations.
CONCLUSIONS OF LAW
As noted, respondent began his employment in November 2009.[2] Pursuant to the version of Article II, Section 1(1) of the Teachers’ Tenure Act that existed at that time, the probationary period was four years. MCL 38.81(1).[3] Amendments to the Teachers’ Tenure Act that took effect on July 19, 2011, include several that relate to probationary teachers. The amendments that are relevant to the present inquiry are those that effected changes to MCL 38.81 and that added a new provision, MCL 38.83b. MCL 38.81 and MCL 38.83b currently provide in their entirety as follows.
MCL 38.81:
(1) Subject to subsections (2) and (3) and section 3b of this
article, a teacher is in a probationary period during his or
her first 5 full school years of employment.
(2) Subject to section 3b of this article, a teacher under
contract but not on continuing tenure as of the effective
date of the 2011 amendatory act that amended this
subsection is in a probationary period during his or her
first 4 full school years of employment.
(3) A teacher on continuing tenure as of the effective date of
the 2011 amendatory act that amended this subsection
continues to be on continuing tenure even if the teacher
has not served for at least 5 full school years of
employment.
MCL 38.83b:
(1) Except as otherwise provided in subsection (2), a teacher
shall not be considered to have successfully completed
the probationary period unless the teacher has been rated
as effective or highly effective on his or her 3 most recent
annual year-end performance evaluations under section
1249 of the revised school code, 1976 PA 451, MCL
380.1249, and has completed at least 5 full school years
of employment in a probationary period.
(2) If a teacher has been rated as highly effective on 3
consecutive annual year-end performance evaluations
under section 1249 of the revised school code, 1976 PA
451, MCL 380.1249, and has completed at least 4 full
school years of employment in a probationary period, the
teacher shall be considered to have successfully completed
the probationary period.
Thus, subject to several exceptions, the standard probationary period has been raised from four years to five years. MCL 38.81(1). One such exception is set forth in MCL 38.81(2), the “grandfather clause” for teachers who were serving a probationary period on July 19, 2011. For those probationary teachers, the probationary period remains at four years “subject to” MCL 38.83b. Petitioner’s request requires this Commission to determine the meaning of the “subject to” language of MCL 38.81(2).
The primary rule of statutory construction is to give effect to the intent of the Legislature, and several well-established principles of statutory construction serve as guides to assist in determining that intent. Ward v Board of Education of the Cadillac Area Public Schools (79-16)(Decision and order, appellee’s motion for accelerated judgment, et al., January 16, 1980). Statutes are to be construed so as to reconcile any seeming inconsistencies and to arrive at a meaning that gives effect to all parts of every statute and that produces a harmonious whole. Gross v General Motors Corporation, 448 Mich 147, 164 (1995); World Book, Inc. v Department of Treasury, 459 Mich 403, 416 (1999); Capitol Properties Group v 1247 Center Street, 283 Mich App 422, 435 (2009); Cross v Grosse Pointe Public Schools (12-14). The goal is a reasonable construction of statutory language that best accomplishes the purpose of the statute. Empson-Laviolette v Crago, 280 Mich App 620, 629 (2008). Every word in a statute is to be given meaning in order to avoid rendering any part of the statute surplusage or nugatory. Wickens v Oakwood Healthcare System, 465 Mich 53, 60 (2001); Cross, supra. Statutory language is rendered nugatory if interpretation of the statute fails to give the language any meaning or effect. Empson-Laviolette, supra.
In enacting the “grandfather clause” of MCL 38.81(2), effective July 19, 2011, the Legislature made clear its general intention that teachers who were serving probationary periods on that date would continue to earn tenure at the end of four, rather than five, years, “subject to” MCL 38.83b. MCL 38.83b(1) sets forth two requirements for any teacher’s successful completion of the probationary period: 1) ratings of effective or highly effective on the three most recent annual year-end performance evaluations under section 1249 of the Revised School Code, and 2) completion of five full school years of employment.[4]
It is clear that, in order to give effect to MCL 38.81(2), the second requirement of MCL 38.83b(1) must be construed as not applying to teachers who were serving probationary periods on July 19, 2011. If such teachers were subject to the five-year probationary period requirement of MCL 38.83b(1), they would be treated exactly as probationary teachers who were not serving probationary periods on July 19, 2011. MCL 38.81(1). This would contradict the Legislature’s statement in MCL 38.81(1) that the general five-year probationary period is “subject to” MCL 38.81(2), and it would render the “grandfather clause” of MCL 38.81(2) meaningless. There would be no reason for that “grandfather clause” if the Legislature completely nullified its effect with simultaneous enactment of MCL 38.83b. Thus, in order to avoid the impermissible result of rendering nugatory the language of MCL 38.81(2), we find that the “subject to” language of MCL 38.81(2) does not encompass the five-year probationary period requirement set forth in MCL 38.83b(1). Our inquiry now turns to a determination of the extent to which “grandfathered” probationary teachers are “subject to” the evaluation rating requirement set forth in MCL 38.83b(1).
At the same time that the Legislature amended the Teachers’ Tenure Act in 2011, it amended the Revised School Code. MCL 380.1 et seq.[5] The amendments to the Revised School Code, which were also effective July 19, 2011, included significant changes to section 1249, MCL 380.1249. MCL 38.83b, which, as noted above, was added to the Teachers’ Tenure Act as part of the 2011 amendments, makes specific reference to that section of the Revised School Code. Prior to July 19, 2011, MCL 380.1249 provided in general that, no later than September 1, 2011, each school district was to adopt and implement on an annual basis a fair performance evaluation system for teachers and administrators. No specific rating scale was mandated by the statute at that time. Effective July 19, 2011, however, the Legislature set forth additional requirements for the evaluation system that was to be in place by September 1, 2011, including the requirement that teachers be rated annually using a scale of “highly effective, effective, minimally effective, or ineffective.” MCL 380.1249(1)(c).
Respondent argues that, based on MCL 380.1249(9), the rating requirements of MCL 380.1249(1) are not applicable to him. MCL 380.1249(9), which was effective July 19, 2011, provides in pertinent part as follows.
If a collective bargaining agreement is in effect for
teachers. . . .of a school district. . . .as of the effective
date of the 2011 amendatory act that amended this
subsection, and if that collective bargaining agreement
prevents compliance with [ MCL 380.1249(1)], then [MCL 380.1249(1)] does not apply to that school district. . . .
until after the expiration of that collective bargaining
agreement.
We find that this subsection of section 1249 is not relevant to the instant inquiry. The collective bargaining agreement between the Boyne City Board of Education and Boyne City Northern Michigan Education Association was approved on June 30, 2011. The agreement, however, did not take effect until September 1, 2011.[6] MCL 380.1249(9) provides an exception to the evaluation system requirements of MCL 380.1249(1) only if a collective bargaining agreement that prevents compliance with MCL 380.1249(1) was in effect as of the effective date of the 2011 amendments, i.e., July 19, 2011. Thus, by its express terms, MCL 380.1249(9) does not apply to the instant facts, and it is unnecessary for this Commission to determine if the collective bargaining agreement prevents compliance with MCL 380.1249(1).
Teachers whose probationary periods began after July 19, 2011, are clearly subject to all of the requirements of MCL 38.83b. Our limited task is to determine if probationary teachers who were in a probationary period on July 19, 2011, are subject to the requirement of MCL 38.83b(1) that satisfactory completion of the probationary period includes ratings of effective or highly effective on the three most recent year-end performance evaluations under MCL 380.1249. Our resolution of this question is guided by a firm commitment to our duty to give effect to all relevant statutory language, and to refrain from construing the statutory language in a way that amounts to rewriting the Legislature’s words.
The three-year evaluation requirement of MCL 38.83b(1) refers specifically to the evaluation system that was put in place in the Revised School Code as of July 19, 2011 (MCL 380.1249). The statutory evaluation system referenced in MCL 38.83b(1) did not exist prior to July 19, 2011. Compliance with our duty to adhere to the statutory language prevents this Commission from finding that any evaluations other than those specifically mandated by MCL 380.1249 satisfy the first requirement of MCL 38.83b(1). For example, we cannot find that “satisfactory” or any other ratings under evaluation systems in use before July 19, 2011, are equivalent to the “effective” and “highly effective” ratings required by MCL 38.83b(1), or that such pre-July 19, 2011 ratings are otherwise relevant to the instant inquiry.[7] For the same reason, this Commission cannot, under the guise of construing the Teachers’ Tenure Act, hold that any probationary teacher satisfactorily completes the probationary period by being rated effective or highly effective on only one or two year-end evaluations under MCL 380.1249. Such a construction would impermissibly involve this body in rewriting the legislation, which unequivocally requires three such ratings.
In addition, we must avoid any construction of the statutory language that fails to give some effect to the “grandfather clause” of MCL 38.81(2). For some “grandfathered” teachers, it would be impossible to satisfy a requirement of three year-end evaluations under MCL 380.1249(1) within a four year probationary period. If, for example, the evaluation requirement of MCL 38.83b(1) applied to “grandfathered” probationary teachers whose probationary periods began at the beginning of the 2008-2009 school year, the “grandfather clause” would be rendered meaningless. If the three-year evaluation requirement of MCL 38.83b(1) applied to such teachers, their probationary periods would necessarily extend to at least the end of the 2013-2014 school year since they would not have been subject to the evaluation system of MCL 380.1249(1) until 2011-2012. This would result, for them, in a minimum probationary period of six years. Similarly, for a teacher hired at the beginning of the 2009-2010 school year, the probationary period would necessarily last at least five years if the three-year evaluation requirement applied. Such results would wholly negate the effect of the Legislature’s “grandfathering” of teachers who were serving probationary periods on July 19, 2011.
If the Legislature had intended to impose a performance evaluation requirement on all individuals who were probationary teachers on July 19, 2011, it could have easily and clearly done so. Because it did not do so, we must construe the language that it used and give effect to the intention reflected in that language. This Commission has no authority to do otherwise.
For these reasons, we find that, for teachers who were in probationary periods on July 19, 2011, and whose four-year probationary periods do not include three year-end evaluations under MCL 380.1249, satisfactory completion of the probationary period does not include a statutory requirement related to performance ratings. This ruling preserves the effect of the “grandfather clause” of MCL 38.81(2), and it is the sole logical and permissible construction of the statutory language. This construction also comports with the Legislature’s clear recognition in 2011 that there would be a short period of transition before all of the statutory changes would be fully effective. That recognition is reflected not only in the “grandfather clause” of MCL 38.81(2), but also in MCL 380.1249(9)’s exception based on certain collective bargaining agreements. Another transition built into the legislation concerns the phase-in of the requirement that at least 50% of an annual year-end evaluation is to be based on student growth and assessment data. MCL 380.1249(2)(a)(i). Our construction of the statutory language at issue in this matter gives effect to an anticipated period of transition as it relates to a limited number of probationary teachers.
The probationary periods of some “grandfathered” teachers will include three years of evaluations under MCL 380.1249. For example, teachers who began their probationary employment at the beginning of the 2010-2011 school year, received or will receive evaluations mandated by MCL 380.1249 at the end of the 2011-2012, 2012-2013, and 2013-2014 school years. Application of the evaluation requirement of MCL 38.83b(1) to those probationary teachers is logical and requires no rewriting of the statutory language. Thus, as to “grandfathered” teachers whose probationary periods include three year-end evaluations under MCL 380.1249, the four-year probationary period of the “grandfather clause” of MCL 38.81(2) is “subject to” the evaluation requirement of MCL 38.83b(1). Satisfactory completion of the probationary period of such teachers includes ratings of at least effective on their three most recent year-end annual evaluations. If they fail to satisfy the evaluation requirement of MCL 38.83b(1), their four-year probationary periods will necessarily extend until they satisfy that requirement.
To summarize, and by way of illustration, we will address the effect of our holding on teachers who began their probationary periods at the beginning of the 2008-2009, 2009-2010, or 2010-2011 school year. If a probationary teacher began his or her employment at the beginning of the 2008-2009 school year, his or her probationary period ended at the end of the 2011-2012 school year. One whose probationary employment began at the beginning of the 2009-2010 school year will complete his or her probationary period at the end of the 2012-2013 school year. For both of those groups, successful completion of the probationary period, as statutorily defined, does not include the requirement of three years of at least effective ratings under MCL 380.1249.[8]
For teachers who began their probationary periods at the beginning of the 2010-2011 school year, the four-year probationary period includes three years following the effective date of the mandatory evaluation rating system of MCL 380.1249. Satisfactory completion of those teachers’ four-year probationary periods, therefore, includes satisfaction of the first requirement of MCL 38.83b(1). That is, those teachers satisfactorily complete the four-year probationary period only if they are rated effective or highly effective in their three most recent annual year-end performance evaluations under MCL 380.1249.
Applying our holding to the facts presented in the request for declaratory ruling, we find that, because respondent’s four-year probationary period began in November 2009 and does not include three years during which the year-end evaluation system of MCL 380.1249 was or will be in effect, the evaluation requirement of MCL 38.83b(1) does not apply to him. To hold otherwise would require going beyond the plain words of the statute, an action that this Commission has no authority to do. As noted above, we cannot, for example, require that persons in respondent’s position receive effective or highly effective ratings for one or two years. If we were to so hold, we would be going beyond the plain words of the statute, thus usurping the exclusive function of the Legislature. Nor can we require that persons in respondent’s position serve three years during which they are subject to the rating system set forth in MCL 380.1249, as such a requirement would render meaningless the “grandfather clause” for respondent and for many of the persons it was intended to benefit. Thus, we hold that the “subject to section 3b” language of MCL 38.81(2) does not apply to respondent, just as it does not apply to any “grandfathered” probationary teacher whose probationary period does not include three years during which the current rating system of MCL 380.1249 was in effect.
After careful consideration of all possible constructions of the relevant statutory language, we are confident that the above construction most successfully follows well-established rules of statutory construction, comporting with both the specific words and the intention of the Legislature. Our construction preserves the intention underlying the “grandfather clause” of MCL 38.81(2) while, at the same time, assigning to the “subject to” language of that clause its sole logical meaning. We find that our holding reflects the only construction that gives meaning to every word in the statutes and that does not engage this Commission in rewriting the legislation.
We emphasize that our ruling is narrowly limited to consideration of MCL 38.81(2) and MCL 38.83b(1). Although we hold that some probationary teachers are not subject to the first requirement of MCL 38.83b(1), another provision of the Teachers’ Tenure Act, as amended in 2011, clearly provides that a controlling board may dismiss any probationary teacher at any time. MCL 38.83(2).[9] In addition, it is well settled that tenure cannot be conferred by a controlling board but that it can only be achieved by satisfactory completion of the statutorily mandated probationary period. Ellis v Wakefield Township School District, 79 Mich App 347 (1977).
DECLARATORY RULING
For the foregoing reasons, we rule as follows.
A teacher who was in a probationary period on July 19, 2011, is not subject to the five-year probationary period requirements of MCL 38.81(1) and MCL 38.83b(1).
Satisfactory completion of the probationary period of a teacher who was serving a probationary period on July 19, 2011, does not include the requirement of three years of effective or highly effective performance ratings unless the teacher’s probationary period, following July 19, 2011, includes three year-end evaluations under MCL 380.1249.
_________________________________
James M. Petrie, Chairperson
_________________________________
David Campbell, Secretary
_________________________________
Ritschard P. Homberg, Member
_________________________________
Karen K. Leslie, Member
_________________________________
Dirk Zuschlag, Member
DATED: June 10, 2013
[1] According to respondent, he began his employment in November 2009 in a part-time position. Notwithstanding the part-time nature of his employment when he was hired, he began serving the probationary period at that time. Hughes v Bullock Creek School District(72-9)(tenure may be attained by means of employment in a part-time position).
[2] There is no assertion that respondent earned tenure in another district before starting his career in Boyne City Public Schools in November 2009. See MCL 38.92 (teacher who earns tenure in a school district may not be subject to a probationary period of more than 2 years if employed by another district).
[3] Because he did not begin his employment at the beginning of the school year, the anniversary method will determine when respondent’s probationary period ends. Rodgers v Board of Education of the Reading Community Schools (01-8).
[4] MCL 38.81(2) refers to section 3b of Article II. Section 3b has two subsections. Subsection (2) of section 3b, however, is clearly an exception to the five-year probationary term for employees who were not in a probationary period on July 19, 2011. Our discussion is therefore limited to consideration of how the four-year probationary period of MCL 38.81(2) is “subject to” subsection (1) of section 3b.
[5] The Legislature tie-barred the 2011 Teachers’ Tenure Act and Revised School Code amendments, directing that none of the amendments would take effect until all of the other amendments were enacted into law.
[6] The agreement will expire on August 31, 2014.
[7] Prior requirements of the Teachers’ Tenure Act concerning the evaluation of teachers’ performance differed greatly from those that were effective on July 19, 2011. Before that date, Article II, section 3 of the Act (MCL 38.83) required districts to notify probationary teachers as to whether their work had been “satisfactory.” Article II, section 3a (MCL 38.83a) provided that, after one school year of employment, probationary teachers were to be evaluated annually based on at least two classroom observations and that such evaluations were to address teachers’ progress in meeting the goals of their individualized development plans. Except for those requirements, the Legislature expressly declined to mandate a particular method of conducting performance evaluations, and there was no further legislative guidance for determining what factors to consider in determining whether a teacher’s performance was satisfactory. In sharp contrast, effective July 19, 2011, the Legislature required, among other things, that: 1) annual performance evaluations establish clear approaches to measuring student growth; 2) that annual performance evaluations use data on student growth as a significant factor in evaluating teachers’ performance; and 3) that teachers be rated as highly effective, effective, minimally effective, or ineffective. MCL 380.1249(1). Beginning with the 2013-2014 school year, performance evaluations must meet numerous additional statutory requirements, including several related to classroom observations and strict rules concerning the relative importance of student growth data in determining if a teacher’s performance is highly effective, effective, minimally effective, or ineffective. MCL 380.1249(2).
[8] Whether the evaluation requirement applies to a given individual will depend on whether the individual is subject to three year-end evaluations under MCL 380.1249. Our decision is not intended to address the applicability of the evaluation requirement as to all “grandfathered” probationary teachers. We express no opinion, for example, as to whether a teacher who began the probationary period late in the 2009-2010 school year is subject to the year-end evaluation requirement for three years within the four-year probationary period.
[9] But see Cross, supra (dismissal for unsatisfactory teaching performance is subject to the notice requirements of the Act).