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IN THE MATTER OF:
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Docket No.: |
16-029125-B |
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Kola Hasanaj, Petitioner
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Detroit Public Schools Community District, Respondent
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Case No.: |
16-12
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Agency: |
Education
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Case Type: |
ED Teacher Tenure
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Filing Type: |
Appeal |
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STATE OF
MICHIGAN ADMINISTRATIVE HEARING SYSTEM
Issued and entered
this 7th day of February, 2018
by: Christopher S. Saunders
Administrative Law Judge
PRELIMINARY DECISION AND ORDER
PROCEDURAL HISTORY
On October 12, 2016, Petitioner/Appellant filed his claim of appeal with the State Tenure Commission. The claim of appeal was forwarded to the Michigan Administrative Hearing System (MAHS) on October 14, 2016. On October 18, 2016, Respondent/Appellee filed a Motion to Dismiss Untimely Appeal.
On October 20, 2016, the undersigned issued an Order Scheduling Prehearing Conference wherein Petitioner/Appellant was advised that a response to Respondent/Appellee’s motion would be due by October 28, 2016 and that oral argument thereon would be held on November 2, 2016.
On October 28, 2016, Petitioner/Appellant filed a response to the Motion to Dismiss Untimely Appeal. A prehearing conference was convened on November 2, 2016 and oral argument on the Motion to Dismiss Untimely Appeal was taken.
On December 1, 2016, the undersigned issued a Preliminary Decision and Order (PDO) granting Respondent/Appellee’s Motion for Summary Disposition. Exceptions to the PDO were filed and the decision was reversed and remanded by the State Tenure Commission (the Commission) for further findings specific to if Petitioner/Appellant was in fact a tenured teacher, and if Respondent/Appellee strictly complied with the provisions of the Act by providing Petitioner/Appellant a copy of the Tenure Charges prior to the presentation of such to the Board (in this matter the Emergency Manager).
After the matter was remanded, a prehearing conference was held on May 11, 2017. At the prehearing, dates were selected for the hearing, the exchange of witness and exhibit lists, and the submission of dispositive motions.
On June 12, 2017, Petitioner filed a Dispositive Motion. On June 28, 2017, the undersigned issued an Order Denying Petitioner’s Motion for Summary Disposition. Therefore, the hearing was set to proceed as scheduled on August 14, 15, and 16, 2017. On August 2, 2017, Petitioner/Appellant requested an adjournment of the scheduled hearing dates. The request was granted and the hearing was scheduled for October 9-11, 2017. The hearing proceeded as scheduled on October 9, 10, and 11, 2017. Attorney Shanta Driver appeared on behalf of Kola Hasanaj, Petitioner/Appellant. Attorney Marquita Sylvia appeared on behalf of Detroit Public Schools Community District (DPSCD), Respondent/Appellee. The hearing concluded on October 11, 2017. Prior to the conclusion of the hearing, dates for the submission of post-hearing briefs and replies thereto were discussed with the parties, with mutually agreed upon dates for said submissions being reached.
On October 24, 2017, an Order Regarding Briefing Schedule was issued, setting the deadline for the submission of post-hearing briefs to be November 20, 2017. The deadline for the submission of reply briefs was set as November 30, 2017. Both parties submitted post-hearing and reply briefs, but neither parties’ post-hearing briefs were submitted within the timelines agreed to by the parties and outlined in the October 24, 2017 Order Regarding Briefing Schedule. Therefore, as the briefs were not submitted within the ordered time frames, none of the briefs submitted have been considered.
EXHIBITS AND WITNESSES
The following exhibits were offered by Petitioner/Appellant and admitted into evidence, not offered by Petitioner/Appellant, or offered and not admitted into evidence based on objection:
The following exhibits were offered by Respondent/Appellee and admitted into evidence, not offered by Respondent/Appellee, or offered and not admitted into evidence based on objection:
The following individuals testified in this matter:
ISSUE AND APPLICABALE LAW
Under the Teachers’ Tenure Act, a teacher may be discharged or demoted only for a reason that is not arbitrary or capricious. MCL 38.101. When the Legislature amended the Teachers’ Tenure Act, it was well aware that in the event that the teacher contested the charges against him or her that the district would be required to prove the charges by a preponderance of the evidence. Luther v Board of Education of Alpena Public Schools, 62 Mich App 32 (1975).
The Legislature did not change which party bears the burden of proof or the quantum of proof required to meet the threshold to discharge or demote a teacher. Craig v Larson, 432 Mich 346, 352 (1989). Based on the 2011 amendments[1] to the Teachers’ Tenure Act the Commission held as follows:
…a controlling board bears the burden of proving tenure charges by a preponderance of the evidence and that it further bears the burden of proving by a preponderance of the evidence that its decision to demote or discharge a tenured teacher is based on an appropriate (i.e., not arbitrary or capricious) reason. Cona v Avondale School District (11-61).
Therefore, the district bears the burden of proof to establish its case by a preponderance of the evidence.
The "preponderance" means that evidence which, when weighed with that opposed to it, has more convincing force resulting in a greater probability that the alleged misconduct occurred. See Thomas v Miller, 202 Mich 43 (1918); Giddings v Saginaw Township Community Schools Board of Education (92-1).
There are two issues to be addressed in the instant matter. The first being the findings required upon remand by the Commission; specifically, if Petitioner/Appellant is a tenured teacher within the meaning of the Act, and if Respondent/Appellee strictly complied with the provisions of the Act specifically by providing Petitioner/Appellant notice of the tenure charges against him prior to the meeting of the Board/Emergency Manager to decide whether or not to proceed on the charges. Based on the findings pertaining to those issues, the Commission further instructed the undersigned to determine if the original decision to dismiss the matter for a lack of jurisdiction based on an untimely appeal was proper.
If it is found that the dismissal was improper and the hearing then proceeds to a decision on the merits, the issue in relation to the tenure charges, is whether the district has established that Petitioner/Appellant was properly discharged for allegedly receiving three consecutive ineffective evaluations and was in turn discharged for reasons that are not arbitrary or capricious.
Respondent continues to assert that its Motion to Dismiss was properly granted for lack of jurisdiction pursuant to Tenure Commission Rules 25(1)(e), ACR 38.155(1)(e), which state in pertinent part as follows:
R 38.155 Motion for summary disposition.
Rule 25. (1) A party seeking to recover upon a claim of appeal, or a party against whom a claim of appeal is asserted, may move for summary disposition on all or any part of the claim at any time. The motion shall state that the moving party is entitled to summary disposition on 1 or more of the following grounds and shall specify the grounds on which the motion is based:
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(e) The claim of appeal is barred because it is untimely.
In relation to the steps to follow to effectuate tenure charges being filed against a tenured teacher, MCL 38.102 states as follows:
38.102 Charges against teacher; filing with controlling board; decision to proceed upon charges; written statement of charges and teacher's rights.
Sec. 2.
All charges against a teacher shall be made in writing, signed by the person making the charges, and filed with the secretary, clerk, or other designated officer of the controlling board, and a copy of the charges shall be provided to the teacher. The charges shall specify a proposed outcome of either discharge or a specific demotion of the teacher. The controlling board shall decide whether or not to proceed upon the charges, or may modify the charges and decide to proceed upon the charges as modified, not later than 10 days after the charges are filed with the controlling board. A decision to proceed upon the charges shall not be made except by a majority vote of the controlling board and shall be reduced to writing. The controlling board, if it decides to proceed upon the charges, 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, a written statement of the charges and a statement of the teacher's rights under this article.
It is well settled that claims of appeal must be filed within the prescribed timelines to vest jurisdiction with the Commission. The Teacher Tenure Act as codified in MCL 38.104(1) states as follows:
38.104 Decision to proceed upon charges; appeal with tenure commission; filing; notice; conduct of hearing; dismissal of appeal or denial of discharge or demotion; appeal to court of appeals.
Sec. 4.
(1) A teacher on continuing tenure may contest the controlling board's decision to proceed upon the charges against the teacher by filing a claim of appeal with the tenure commission and serving a copy of the claim of appeal on the controlling board not later than 20 days after receipt of the controlling board's decision. The controlling board shall file its answer with the tenure commission and serve a copy of the answer on the teacher not later than 10 days after service of the claim of appeal. If the teacher does not contest the controlling board's decision in the time and manner specified in this subsection, the discharge or demotion specified in the charges takes effect and the teacher shall be considered to have waived any right to contest the discharge or demotion under this act.
The statutory timelines for filing an appeal are jurisdictional and when not complied therewith, operate to deprive the Commission of jurisdiction over an untimely claim of appeal. See Curry v Huron Valley Schools (73-59) and Halliburton v Detroit Board of Education (79-1). Therefore, if a claim of appeal is found to be filed untimely, the Commission lacks jurisdiction over the claim of appeal and summary disposition is appropriate.
MCL 38.104(1) states that a claim of appeal must be filed with the Commission and served upon the controlling board. Rule 38.144 states that a controlling board must be served by having the documents delivered thereto. In Almon v Detroit Board of Education (97-33), the Commission held that in order for a claim of appeal to be filed with the Commission, that claim of appeal must be delivered and received by the Commission. Therefore, in order for a document to be properly filed with the Commission, it must be both delivered and received.
FINDINGS OF FACT
Petitioner/Appellant is a certified teacher within the meaning of the Act. He has achieved tenured status. Petitioner/Appellant moved to the United States in 1996 and began taking classes at Wayne State University. He began substitute teaching for Detroit Public Schools in 1998. In 2006, Petitioner/Appellant became a certified teacher in the State of Michigan. (Tr. Vol. III, pages 446-458). Petitioner/Appellant is certified in the areas of Bilingual and English, both 6-12. (Pet. Exhibit 11).
During the 2013-2014 school year, Petitioner/Appellant taught sixth grade English Language Arts at Emerson Elementary/Middle School, located with the DPSCD. (Pet. Exhibit 8). He taught block classes consisting of math and English language arts (ELA). (Tr. Vol. II, pages 213-214). Petitioner/Appellant is not certified in the subject matter of math.
On September 27, 2013, Jewel Dillard, Assistant Principal, conducted an in-class observation of Petitioner/Appellant. Ms. Dillard prepared a written Teacher Observation Rubric based on her observation. The rubric contains Ms. Dillard’s notes from the observation as well as effectiveness ratings for 5 Core Elements. For the first Core Element, demonstrated pedagogical skills, Petitioner/Appellant was found to be minimally effective. (Resp. Exhibit G). Ms. Dillard explained that Petitioner/Appellant did not have prepared lesson plans and appeared to be struggling with classroom management. (Tr. Vol. II, pages 213-219).
The second Core Element of student growth as a predominant factor had yet to be observed. For the third Core Element of classroom management, Petitioner/Appellant was found to be minimally effective. For the fourth Core Element of relevant special training, the rubric states that Petitioner/Appellant is to maintain a portfolio of his professional learning and growth to discuss with the principal at the final conference. For the fifth Core Element of educator responsibilities, Petitioner/Appellant was found to be minimally effective. (Resp. Exhibit G). On October 7, 2013, a Professional Learning Plan was created with Petitioner/Appellant and signed by himself and Principal Brenda Carethers on October 7, 2013. (Resp. Exhibit H). On October 1, 2013, Assistant Principal Jewel Dillard wrote Petitioner/Appellant a letter wherein she required that Petitioner/Appellant submit lesson plans to her no later than October 4, 2013. (Resp. Exhibit KK). On October 4, 2013, Brenda Carethers completed a request for assistance support form for Petitioner/Appellant, requesting support to be provided to Petitioner/Appellant. (Resp. Exhibit JJ).
Brenda Carethers was the principal at Emerson during the 2013-2014 school year. Ms. Carethers testified that when she would walk past Petitioner/Appellant’s classroom she noticed how loud it was and that it appeared to be chaotic. (Tr. Vol. II, pages 345-348). Ms. Carethers testified that there was an incident in Petitioner/Appellant’s classroom in early October where one child was chasing another around the room with a broom and the child being chased fell, hit her head on a desk, and received stitches. As a result of this incident, Ms. Carethers contacted employee relations and a hearing was held in relation to the incident. A few days after this incident (again in early October 2013), Petitioner/Appellant submitted Family Medical Leave Act (FMLA) paperwork and went out on such for the remainder of the school year. Petitioner/Appellant did not return to Emerson for the remainder of the year. (Tr. Vol. II, pages 350-353).
On May 28, 2014, Ms. Carethers completed an end of year teacher evaluation for Petitioner/Appellant. For the first Core Element, demonstrated pedagogical skills, Petitioner/Appellant was found to be ineffective. For the second Core Element of student growth as a predominant factor, Petitioner/Appellant was found to be ineffective. For the third Core Element of classroom management, Petitioner/Appellant was found to be ineffective. For the fourth Core Element of relevant special training, Petitioner/Appellant was found to be ineffective. For the fifth Core Element of educator responsibilities, Petitioner/Appellant was found to be ineffective. Petitioner/Appellant was found to be ineffective for the 2013-2014 school year. (Resp. Exhibit I).
On July 25, 2014, Petitioner/Appellant was sent a letter informing him of his overall rating of ineffective for the 2013-2014 school year. (Resp. Exhibit EE). Petitioner/Appellant did not protest the ineffective rating.
For the 2014-2015 school year, Petitioner/Appellant was placed at Bunche Elementary/Middle School, located within the DPSCD. He was assigned to teach sixth grade ELA. During the 2014-2015 school year, Harry Coakley was the principal at Bunche Elementary. On September 29, 2014, Mr. Coakley conducted an informal observation of Petitioner/Appellant and created a teacher observation rubric as a result. For the first Core Element of demonstrated pedagogical skills, Petitioner/Appellant was given a rating of ineffective for all sub-areas. For the second Core Element of student growth as a predominant factor, no rating was assigned to Petitioner/Appellant. For the third Core Element of classroom management, Petitioner/Appellant was given a rating of ineffective for all sub-areas but one; for the sub-area of creating and facilitating a learning space, Petitioner/Appellant was given a rating of minimally effective. For the fourth and fifth Core Elements of relevant special training and educator responsibilities respectively, no rating was assigned to Petitioner/Appellant. (Resp. Exhibit J).
Assistant Principal Selina Wilkins also conducted an observation of Petitioner/Appellant. No ratings were given for Core Elements I, II, IV, and V. For Core Element III, classroom management, Petitioner/Appellant was given a rating of ineffective for all sub-areas but one; for the sub-area of creating and facilitating a learning space, Petitioner/Appellant was given a rating of minimally effective. (Resp. Exhibit K).
On December 12, 2014, Mr. Coakley conducted another observation of Petitioner/Appellant. For the first Core Element of demonstrated pedagogical skills, Petitioner/Appellant was given a rating of minimally effective for all sub-areas. For the second Core Element of student growth as a predominant factor, no rating was assigned to Petitioner/Appellant. For the third Core Element of classroom management, Petitioner/Appellant was given a rating of ineffective for all sub-areas. For the fourth and fifth Core Elements of relevant special training and educator responsibilities respectively, no rating was assigned to Petitioner/Appellant. (Resp. Exhibit L). Mr. Coakley testified that during this observation, a Title I teacher was assigned to assist Petitioner/Appellant in the classroom and that she was assisting him on the day the observation took place. (Tr. Vol. III, pages 421-423).
On March 5, 2015, Mr. Coakley conducted another observation of Petitioner/Appellant. The observation rubric provided by Respondent/Appellee as Exhibit M is incomplete and does not show the results or complete effectiveness ratings for all areas. (Resp. Exhibit M). On April 16, 2015, Assistant Principal Selina Wilkins conducted an observation of Petitioner/Appellant. No ratings were given for Core Elements I, II, IV, and V. For Core Element III, classroom management, Petitioner/Appellant was given a rating of ineffective for the sub-areas of managing instructional time and creating an atmosphere of mutual respect. In the sub-area of creating and facilitating a learning space, Petitioner/Appellant was given a rating of effective. In the sub-area of managing student behavior, Petitioner/Appellant was given a rating of minimally effective. (Resp. Exhibit O).
On May 14, 2015, Mr. Coakley conducted another observation of Petitioner/Appellant. No ratings were given for Core Elements I, II, IV, and V. For Core Element III, classroom management, Petitioner/Appellant was given a rating of ineffective for all sub-areas. (Resp. Exhibit N).
On May 26, 2015, Mr. Coakley completed an end of year teacher evaluation for Petitioner/Appellant. For Core Element I, demonstrated pedagogical skills, there are three sub-areas. For the sub-area of knowledge of subject, Petitioner/Appellant was rated as minimally effective. For the sub-area of planning for instruction, Petitioner/Appellant was rated as ineffective. For the sub-area of delivery of instruction, Petitioner/Appellant was rated as ineffective. For Core Element II, student growth as a predominant factor, there are four sub-areas. For the sub-area of designing assessments, Petitioner/Appellant was rated as ineffective. For the sub-area of utilizing assessments in instruction, Petitioner/Appellant was rated as minimally effective. For the sub-area of demonstrating student growth, Petitioner/Appellant was rated as ineffective. For the sub-area of uses a variety of techniques to communicate progress in a timely manner, Petitioner/Appellant was rated as minimally effective. For Core Element III, classroom management, there are five sub-areas. For the sub-area of managing instructional time, Petitioner/Appellant was rated as ineffective. For the sub-area of managing student behavior, Petitioner/Appellant was rated as ineffective. For the sub-area of creating an atmosphere of mutual respect and building rapport, Petitioner/Appellant was rated as minimally effective. For the sub-area of creating and facilitating a learning space and stimulating learning environment, Petitioner/Appellant was rated as ineffective. For the sub-area of maintains accurate grade books, lesson plans, and student records, Petitioner/Appellant was rated as minimally effective. For Core Element IV, relevant special training, Petitioner/Appellant was rated as effective. For Core Element V, significant relevant accomplishments and contributions, Petitioner/Appellant was rated as ineffective. (Resp. Exhibit P).
Petitioner/Appellant’s overall rating for the 2014-2015 school year was ineffective. On July 23, 2015, Respondent/Appellee sent Petitioner/Appellant a letter informing him of his overall rating of ineffective for the 2014-2015 school year. (Resp. Exhibit FF). Petitioner/Appellant did not challenge this overall rating.
During the 2015-2016 school year, Petitioner/Appellant was placed at Bunche Elementary/Middle School, located within the DPSCD. During the 2015-2016 school year, Cindy Lang was the principal at Bunche. (Tr. Vol. II, pages 276-277). At the beginning of the school year, Petitioner/Appellant was placed in a classroom teaching science. Petitioner/Appellant is not certified in science. Ms. Lang testified that she was told by human resources to keep Petitioner/Appellant at Bunche until a placement for him could be found. (Tr. Vol. II, pages 282-292). It was the understanding of both Petitioner/Appellant and Ms. Lang that Petitioner/Appellant would be moved to a different placement by human resources once a placement was found. In the meantime, Petitioner/Appellant was to stay at his then-current placement at Bunche.
On September 15, 2015, Ms. Lang did a walk-through of Petitioner/Appellant’s class and noted that he had no lesson plans and that he was in need of support. (Resp. Exhibit Q). Ms. Lang did an additional walk-through on September 17, 2015 and noted again that Petitioner/Appellant had no lesson plans and needed support. (Resp. Exhibit R). Ms. Lang testified that Petitioner/Appellant was provided support in the classroom subsequent to September 17, 2015. (Tt. Vol. II, pages 288-290).
On September 28, 2015, Ms. Lang did another walk-through of Petitioner/Appellant’s classroom. She noted that there was no student engagement, no classroom management, and no lesson plans. (Resp. Exhibit S). Petitioner/Appellant was then moved to a physical education (PE) class. Petitioner/Appellant is not certified in PE. On October 5, 2015, Ms. Lang preformed a walk-through of Petitioner/Appellant’s PE class. She noted that Petitioner/Appellant did have a well written lesson plan, but that it was not followed. She also noted that there was no classroom engagement and no classroom management. (Resp. Exhibit T).
On January 5, 2016, Frederick Cannon, AEA, sent a letter to Petitioner/Appellant stating that he was in violation of a work rule and that the letter would serve as a written reprimand. The letter states that Petitioner/Appellant is in violation of work rule 10; employees must perform all work assigned by an administrator in charge. The letter indicates that Petitioner/Appellant was instructed that his PE class needed to be structured and that a lesson plan needed to be followed but that it was not. The letter requests Petitioner/Appellant’s presence at a January 7, 2016 meeting to which he was informed that he could bring union representation. (Resp. Exhibit Z).
In mid-January of 2016, Petitioner/Appellant left on FMLA. He did not return for the remainder of the school year. (Tr. Vol. II, pages 281-282). On May 13, 2016, Ms. Lang completed an end of year teacher evaluation for Petitioner/Appellant. For Core Element I, demonstrated pedagogical skills, Petitioner/Appellant was rated as ineffective in every sub-area. For Core Element II, student growth as a predominant factor, Petitioner/Appellant was rated as ineffective in every sub-area. For Core Element III, classroom management, Petitioner/Appellant was rated as ineffective for the sub-areas of managing instructional time, managing student behavior, and maintaining accurate grade books, lesson plans, and student records. For the sub-areas of creating an atmosphere of mutual respect and building rapport, and creating and facilitating a learning space and stimulating learning environment, Petitioner/Appellant was rated as minimally effective. For Core Element IV, relevant special training, Petitioner/Appellant was rated as ineffective. For Core Element V, significant relevant accomplishments and contributions, Petitioner/Appellant was rated as ineffective. (Resp. Exhibit BB).
On July 29, 2016, Petitioner/Appellant was sent a letter informing him that his overall rating for the 2015-2016 school year was ineffective. (Resp. Exhibit GG). On August 16, 2016, Respondent/Appellee sent Petitioner/Appellant a letter informing him that he had been rated as ineffective on his year end evaluations for the past three years. The letter informs him that, pending the outcome of the review, he is being placed on administrative leave effective August 29, 2016. (Resp. Exhibit C).
On September 6, 2016, a letter was drafted informing Petitioner/Appellant that tenure charges were being filed against him due to his teaching performance for the years of 2013-2014, 2014-2015, and 2015-2016. The letter states in the subject line “Notice of Charge of Termination Due to Ineffective Classroom Teaching Performance.” (Resp. Exhibit D). The letter was created by Lauri Washington, Deputy Executive Director of the Office of Employee Relations. Ms. Washington testified that the September 6, 2016 letter, which is a copy of the charges filed against Petitioner/Appellant was drafted and sent to Petitioner/Appellant on September 6, 2016. She testified that the practice of the office is to send out letters the same day they are drafted. She testified that she drafted the September 6, 2016 letter and sent the same to Petitioner/Appellant. (Tr. Vol. I, pages 40-85).
On September 12, 2016, the Transition Manager decided to proceed on the charges against Petitioner/Appellant. On September 12, 2016, Respondent/Appellee sent a letter to Petitioner/Appellant informing him that the Transition Manager had authorized the Division of Talent to proceed on the tenure charges filed against him. The letter informs Petitioner/Appellant of his appeal rights, informs him of the time within which he must file his appeal, gives the address to where his appeal must be sent (for both the Tenure Commission and the District), provides a copy of the charges, and a copy of the relevant portions of the Act. (Resp. Exhibit E).
Petitioner/Appellant testified that he did not receive a copy of the September 6, 2016 letter which informs him of the charges filed against him. Petitioner/Appellant testified that he moved at the end of August or beginning of September of 2016. He testified that he did not inform Respondent/Appellee of his new address and that he was continuing to get mail at his old address. Petitioner/Appellant testified that he knew he was continuing to get mail at his old address because the people who moved into his old residence were always getting mail for him there. He told them he used to live there and asked that they bring any mail they got to him. Petitioner/Appellant also testified that he had two addresses that he would receive mail at, his physical residence and a PO Box. He testified that he did receive the September 12, 2016 letter informing him of the decision to proceed on the tenure charges. Petitioner/Appellant testified that he received that letter 3 or 4 days after September 13, 2016. (Tr. Vol. III, pages 492-505). In his notarized Declaration, dated October 27, 2016, Petitioner/Appellant stated that he received the September 12, 2016 letter on September 16, 2016. (Exhibit A attached to Petitioner/Appellant’s response to Respondent/Appellee’s Motion to Dismiss).
Petitioner/Appellant filed his claim of appeal with the Tenure Commission on October 12, 2016. Petitioner/Appellant’s Claim of Appeal was not filed within 20 days of the receipt of the decision to proceed on the tenure charges.
DISCUSSION
As stated above, the first issue to be determine in this matter is whether or not Respondent/Appellee’s Motion to Dismiss was properly determined based on the findings made in accordance with the Commission’s remand order. The Commission specifically directed findings to be made as to if Petitioner/Appellant was a tenured teacher, and if Respondent/Appellee strictly complied with the Act by providing Petitioner/Appellant a copy of the tenure charges against him in accordance with MCL 38.102. Based on the findings made as directed by the Commission, the undersigned was then directed by the Commission to determine if Petitioner/Appellant’s claim of appeal was properly summarily dismissed for lack of jurisdiction.
The parties stipulated that Petitioner/Appellant is a tenured teacher within the meaning of the Act.
The next issue to be decided at the direction of the Commission is if Respondent/Appellee provided Petitioner/Appellant with a copy of the tenure charges prior to the decision to proceed thereon in accordance with MCL 38.102. I find that the preponderance of the evidence shows that Respondent/Appellee did in fact provide Petitioner/Appellant with a copy of the charges. On September 6, 2016, Lauri Washington prepared a letter informing Petitioner/Appellant of the charges being filed against him (see Resp. Exhibit D). Ms. Washington provided credible testimony that she created and sent that letter to Petitioner/Appellant’s last known address. Ms. Washington credibly testified that it is typical practice to create and send out letters the same day they are created.
Petitioner/Appellant also credibly testified that he did not receive the September 6, 2016 letter until he received the September 12, 2016 letter informing him of the decision to proceed on the charges, which also contained a copy of the September 6, 2016 letter. However, even though Petitioner/Appellant credibly testified that he did not receive that letter, his testimony sheds light on why he may not have received it. Petitioner/Appellant testified that he moved at the end of August or beginning of September. He also testified that he did not inform Respondent/Appellee of his new address. He testified that he continued to get mail at his old address because he moved to the apartment next door and the people who moved into his old apartment were getting mail addressed to him and giving it to him.
I find that Respondent/Appellee acted appropriately in attempting to provide Petitioner/Appellant with a copy of the tenure charges. A copy of those charges was sent to Petitioner/Appellant’s last known address on September 6, 2016. That Petitioner/Appellant did not receive those charges is not the fault of Respondent/Appellee, but rather due to Petitioner/Appellant not providing the proper address and relying on his neighbors to provide him mail that was still arriving at his old address. Therefore, in addressing the two issues specifically directed to be addressed by the Commission, I find that Petitioner/Appellant is a tenured teacher and Respondent/Appellee did provide him with a copy of the tenure charges prior to the decision to proceed thereon.
It must then be determined if the original decision to summarily dismiss Petitioner/Appellant’s Claim of Appeal for lack of jurisdiction was proper. The 20-day time limit for filing a claim of appeal is a jurisdictional issue, and claims that are filed outside the 20-day timeline are barred. Bush v Zeeland Public Schools (97-42). Therefore, if a Claim of Appeal is filed outside the required 20 day time period, the Commission lacks jurisdiction to examine the factual allegations contained in the Claim of Appeal.
Petitioner/Appellant’s testimony and declaration attached to his response to Respondent/Appellee’s Motion to Dismiss state that he received the September 12, 2016 letter advising him of the decision to proceed on the charges and the related documents on September 16, 2016. Therefore, Petitioner/Appellant had to file his Claim of Appeal by October 6, 2016. Petitioner/Appellant’s claim of appeal was filed with the Commission on October 12, 2016. As Petitioner/Appellant did not file his Claim of Appeal within the mandated 20 day time period, the Commission lacks jurisdiction to hear the Claim of Appeal and the matter was properly dismissed.
CONCLUSIONS OF LAW
The Commission lacks jurisdiction over Petitioner/Appellant’s Claim of Appeal because it was not filed within the required 20 day time frame. Therefore, dismissal of the Claim of Appeal is proper.
ORDER
NOW THEREFORE, IT IS HEREBY ORDERED that Petitioner/Appellant’s Claim of Appeal is DISMISSED for lack of jurisdiction.
EXCEPTIONS
A party may file a statement of exceptions to the decision and order or to any part of the record or proceedings including rulings on motions or objections, with the State Tenure Commission. The statement of exceptions must be accompanied by a brief in support of the exceptions and filed in accordance with the rules of the Commission. Rule 46 ; AC 38.176. The brief and statement of exceptions must be served upon each of the parties within the time limit stated above.
The deadline for filing exceptions is 20 days after the mailing of this judgment; therefore, exceptions must be filed by February 28, 2018. Exceptions must be received by the Commission before the close of business on the last day of this time limit. Exceptions should be sent to the Office of Administrative Law,
A party may file a statement of cross-exceptions or a statement in support of the preliminary decision, accompanied by a brief, with the State Tenure Commission, not later than 10 days after being served with the other party's exceptions and brief. MCL 38.71 et seq.
Rule 46(2) of the Commission's General Administrative Rules requires that arguments in exceptions/cross-exceptions briefs must correspond to the order of exceptions/cross-exceptions. The argument must be prefaced by the exception/cross-exception which it addresses. [See Rule 46(4)(d)].
A matter not included in the statement of exceptions or statement of cross-exceptions is considered waived and cannot be heard before the Commission or on appeal to the Court of Appeals.
If exceptions are not timely filed, this decision and order becomes the State Tenure Commission's final decision and order.
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Christopher S. Saunders |
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Administrative Law Judge |
2. Public Act 100 of 2011 amended section 1 of article IV of the TTA, being MCL 38.101. This amendment changed the standard review a controlling board’s request to discharge or demote a tenured teacher from “reasonable and just cause” to “not arbitrary or capricious.”