STATE OF MICHIGAN
STATE TENURE COMMISSION
KOLA HASANAJ,
Appellant
v Docket No. 16-12
DETROIT PUBLIC SCHOOLS
COMMUNITY DISTRICT,
Appellee
Attorney for Appellant: Shanta Driver
Driver Schon & Associates PLC
19526 Cranbrook Dr., Apt B
Detroit, MI 48221
Attorney for Appellee: Marquita Sylvia
Office of the General Counsel
3011 W. Grand Blvd., Suite 1002
Fisher Building, 10th Floor
Detroit, MI 48202
DECISION AND ORDER ON EXCEPTIONS AFTER REMAND
Appellant Kola Hasanaj filed a claim of appeal with this Commission on October 12, 2016, challenging the decision of appellee Detroit Public Schools Community District to discharge him. Appellee filed a motion to dismiss the claim of appeal as untimely. On December 1, 2016, Administrative Law Judge Christopher S. Saunders (ALJ) granted the motion, finding that the claim of appeal was untimely because it was not filed within the 20-day time limit of MCL 38.104(1). Appellant filed exceptions with this Commission, which, on February 16, 2017, remanded the case to the administrative law judge for a determination of whether appellant earned tenure with appellee; whether appellee strictly complied with the procedural requirements of the Teachers’ Tenure Act; and whether, absent such compliance, the statutory 20-day period for filing a claim of appeal was tolled in this case.
On remand, there was a hearing on October 9, October 10, and October 11, 2017. On February 7, 2018, the ALJ issued a preliminary decision and order (PDO), finding that this Commission lacks jurisdiction over appellant’s claim of appeal because it was not filed within the 20-day time limit of MCL 38.102(1). On February 28, 2018, appellant filed three exceptions to the PDO. Cross exceptions were due on March 12, 2018. The cross exceptions and brief filed by appellee on March 13, 2018, were therefore not timely and cannot be considered.[1]
DISCUSSION
In our February 16, 2017 decision and order on exceptions, we stated:
Before we begin our discussion of appellant’s exceptions, we raise a jurisdictional issue not considered by the parties or the ALJ. Neither in appellant’s claim of appeal nor in the PDO is it asserted that appellant is a tenured teacher, although in both he is identified as a certified teacher. According to his claim of appeal, appellant first acquired teacher certification on October 10, 2006. His claim of appeal states that he worked for Detroit Public Schools as a substitute teacher from 1998 to 2011 and as a contract teacher in the 2011-2012 school year, and that he was laid off for the 2012-2013 school year. He taught again from September 16, 2013, until October 29, 2013, and then taught for the 2014-2015 and 2015-2016 school years. It is not clear from this history if appellant achieved tenure status, which is a prerequisite to this Commission’s assertion of jurisdiction. It is appellant’s burden of proof to establish that he is a tenured teacher. Benson v Board of Education of the Westwood Community School District (14-17); Babcock v Board of Education of the Kent Intermediate School District (91-13). Because, as explained below, we remand this case to the ALJ for further findings of fact and conclusions of law, it is incumbent on the ALJ to determine this jurisdictional issue before any other issues can be considered. (Footnotes omitted.)
On remand, the parties “stipulated” that appellant earned tenure with appellee and the ALJ made no factual findings or independent conclusions of law related to appellant’s tenure status. (Tr, p 20; PDO, p 16). Under the circumstances of this case, this was error. With some exceptions not relevant to this matter, this Commission’s subject matter jurisdiction is limited to matters involving tenured teachers. Fortuna v Detroit City School District (79-57)(decision and order, appellee’s motion for accelerated judgment, July 24, 1980). Matters of law, including subject matter jurisdiction, cannot be decided by stipulation. In Re Finlay Estate, 154 Mich App 350, 357-358 (1986); People v Eaton, 184 Mich App 649, 652-653 (1990).
Tenure is not granted by a school district but is earned as a matter of law upon successful completion of the probationary period and satisfaction of other requirements of the Teachers’ Tenure Act. Golembiewski Declaratory Ruling (05-42), Munn Declaratory Ruling (05-43). As noted in our February 16, 2017 decision, appellant bears the burden of proving his tenured status.
The probationary period is a time of trial when an individual is given an opportunity to demonstrate satisfactory performance and when an employing district has an opportunity to evaluate that performance. Ward v Board of Education of the Cadillac Area Schools (79-16), aff’d 134 Mich App 811 (1984); Gleason v Board of Education of the Holt Public Schools (01-3). To serve a probationary period, an individual must hold a certificate that is valid for the position to which he or she is assigned. Mich Admin Code, R 390.661(1). A certificate is valid for a position if it authorizes employment during the time period, in the discipline area, and at the grade level of the position. Mich Admin Code, R 390.1101(aa).
A substitute teacher assignment may, under certain circumstances, be counted as part of a probationary period but possession of certification that is valid for the assignment is required and there are other conditions that must be satisfied. Mainzinger v Riverview Community School District (00-3). As described in Mainzinger, the test for determining whether a substitute teacher assignment is considered part of a probationary period is whether the substitute employee:
has rendered services encompassing the full range of duties normally required of teachers in the district and has served in a specific teaching assignment for a regular, continuous and pre-arranged period of time to allow for evaluation of the full scope of his or her performance.
Thus, in order to be considered as fulfilling the purpose of the probationary period, substitute teacher assignments must be of sufficient duration and must include performance of the full range of functions normally associated with a regular teaching position, including, for example, course planning, lesson planning, test administration, grading, participation in parent-teacher conferences and other communication with parents, participation in individualized education program meetings for special education pupils, and attendance at staff meetings. Ward, supra; Mainzinger, supra; Joseph v Board of Education of the Ann Arbor Public Schools (98-17). The nature and duration of services, not a contract label, determine whether employment satisfies the requirements of the probationary period. Thomas v Saginaw Public Schools (90-17) (Decision and order on appellee’s motion for summary judgment, July 1, 1993). The fact that an individual’s performance is evaluated does not establish that his or her services are those normally required of a teacher with full responsibility for the assignment. Mainzinger, supra. A probationary period cannot include periods of layoff. Benson, supra.
Either the brevity of periods of substitute service or the duration of breaks in service may serve to defeat the purpose of the probationary period. Gleason, supra. In Gleason, for example, an individual’s “long-term” substitute positions of 28 ½, 38, and 48 days were found to be of insufficient duration to satisfy the requirement that periods of service be sufficiently regular, pre-arranged, and continuous to fulfill the purpose of the probationary period. In Rogers v Fenton Area Public Schools (87-2), this Commission found that three assignments comprising less than one quarter of a full academic year, stretched over four years, and totaling far less than the annual minimum number of days of student instruction required by state law could not be counted as a probationary year.
Appellant testified at the October 2017 hearing about working for several years as a daily and long-term substitute teacher for appellee. (E.g., Tr, pp 449-457, 466, 510-514). However, the record is devoid of evidence of the dates of his long-term substitute assignments and of the precise nature of the duties he assumed in those assignments. Given the circumstances of appellant’s teaching history with appellee, that lack of evidence precludes a conclusion about whether he earned tenure with appellee. We therefore remand to the ALJ for specific findings of fact, based on evidence, and conclusions of law as to whether appellant earned tenure with appellee. On remand, appellant shall bear the burden of proving his tenured status by a preponderance of the evidence.
In particular, the specific, evidence-based factual findings on remand shall describe appellant’s employment with appellee from October 10, 2006 (the date of his teaching certification) to his last date of active employment. With the exception of short-term substitute teaching assignments, which cannot be considered part of a probationary period, facts about every assignment in which appellant served during that period are required, including the exact dates and detailed nature (including subjects taught) of each assignment. The responsibilities undertaken by appellant in each long-term substitute teacher assignment must be determined in detail. Also required is a determination of whether MCL 38.83b applies to the facts found by the ALJ. See Boyne City Public Schools Declaratory Ruling (13-11).[2]
As noted in our February 16, 2017 decision, there must be strict compliance with the procedural requirements of the Teachers’ Tenure Act. Among the requirements set forth in section 2 of article IV of the Act, MCL 38.102, is that the charges provided to a teacher in advance of a controlling board’s decision specify “a proposed outcome” of discharge or demotion. The purpose of this requirement is to ensure that a teacher is aware that he or she has an opportunity to respond to proposed charges before a final decision is made. MCL 38.102 also provides that a controlling board “shall furnish the teacher not later than 5 days after deciding to proceed upon the charges with the written decision to proceed upon the charges.” On remand, the ALJ shall make findings of fact and conclusions of law regarding appellee’s compliance with these statutory requirements. See Sammons v Ecorse Public Schools (96-16), aff’d unpublished per curiam opinion of the Court of Appeals issued June 16, 1998 (Docket No. 201636); Gendler v Flint Community Schools (02-25 and 02-31).
ORDER
For the foregoing reasons and based on the record, we order the following:
This matter is remanded to the Michigan Administrative Hearing System for further proceedings consistent with this decision, following which it shall return the record to this Commission, which retains jurisdiction.
A party shall have 20 days from the date of entry of the order of the administrative law judge on remand to file with this Commission, and to serve on the opposing party, exceptions and a supporting brief that address only the findings of fact and conclusions of law of the administrative law judge concerning the issues upon which this Commission is hereby remanding this matter. A party shall have 10 days from the date of service of exceptions to file with this Commission, and to serve on the opposing party, cross exceptions and a supporting brief. Exceptions, cross exceptions, and supporting briefs shall be received by this Commission before the close of business on the last day of the time limits set forth in this order.
Filing with this Commission may be by facsimile at 517-373-9238 or by mail at: State Tenure Commission, Office of Administrative Law, 608 W. Allegan St., PO Box 30008, Lansing, MI 48909.
_______________________________
David Campbell, Chairperson
_______________________________
R. Stephen Olsen, Secretary
_______________________________
Nancy Danhof, Member
_______________________________
Patrick McKennon, Member
_______________________________
Jeffyn Herioux, Member
April 23, 2018
[1] MCL 38.104(5)(k) (party may file cross exceptions not later than 10 days after being served with exceptions); Mich Admin Code, R 38.145(1) (pleadings shall be filed with the Commission before the close of business on the last day of the time limit for the filing) and (2)(d) (pleadings received by fax after 5:00 p.m. are considered filed on the next business day); Baskerville v River Rouge Public Schools Board of Education (07-20) lv den unpublished order of the Court of Appeals, entered September 15, 2008 (Docket No. 285291), lv den 483 Mich 913 (2009) (untimely cross exceptions not addressed).
.
[2] If MCL 38.83b applies to appellant, he did not earn tenure with appellee. That statute provides as follows.
(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.