STATE OF MICHIGAN
STATE TENURE COMMISSION
Docket No. 16-12
Detroit Public Schools Community District,
Attorney for Appellant: Shanta Driver
Driver, Schon & Associates PLC
19526-B Cranbrook Drive
Detroit, MI 48221
Attorney for Appellee: Marquita Harris Sylvia
Office of the General Counsel
Detroit Public Schools Community District
3011 W. Grand Blvd., Suite 1002
Detroit, MI 48202
DECISION AND ORDER ON EXCEPTIONS
On October 12, 2016, appellant Kola Hasanaj filed a claim of appeal challenging the September 12, 2016 decision of appellee Detroit Public Schools Community District to discharge him. On October 18, 2016, appellee filed a motion to dismiss the claim of appeal as untimely. Administrative Law Judge Christopher S. Saunders (ALJ) granted the motion in a preliminary decision and order (PDO) dated December 1, 2016. Appellant filed exceptions to the December 1, 2016 PDO and, in a decision and order on exceptions dated February 16, 2017, this Commission remanded the matter to the ALJ for a determination of, among other issues, whether appellant was a tenured teacher. We held in pertinent part in the February 16, 2017 decision as follows.
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. . .It is not clear from [appellant’s alleged employment 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). . .[I]t is incumbent on the ALJ to determine this jurisdictional issue before any other issues can be considered. (Footnotes omitted.)
On remand, there was a hearing from October 9 to October 11, 2017. The ALJ issued a PDO on February 7, 2018, in which he determined that appellant was a tenured teacher. His finding in that regard was based solely on the parties’ stipulation that appellant had earned tenure. The ALJ further found that appellant’s claim of appeal was not timely filed and that therefore this Commission lacked jurisdiction.
Appellant filed exceptions to the February 7, 2018 PDO and, on April 13, 2018, this Commission issued a decision and order on exceptions, finding that the ALJ erred in failing to make specific findings, based on evidence, to support the determination that appellant was a tenured teacher. Noting that this Commission’s subject matter jurisdiction is generally limited to matters involving tenured teachers and that matters of subject matter jurisdiction cannot be decided by stipulation, the April 13, 2018 decision stated in pertinent part as follows.
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).[]
We. . .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). [Footnote omitted.]
On second remand, the ALJ held a hearing on September 28, 2018. On February 19, 2019, he issued a PDO in which he found that appellant was not a tenured teacher. Appellant filed timely exceptions to the February 19, 2019 PDO on March 12, 2019, and appellee filed timely cross exceptions on March 22, 2019.
This Commission’s jurisdiction is strictly limited to matters arising under the Teachers’ Tenure Act, MCL 38.71 to 38.191. See MCL 38.137 (state tenure commission is vested with powers necessary to carry out and enforce the provisions of the Teachers’ Tenure Act). Therefore, as stated in our February 16, 2017 decision, a determination that the involved teacher was tenured at the time of the challenged action of a controlling board is generally a prerequisite to the invocation of this Commission’s review authority. As we stated in our earlier decisions, it is the teacher’s burden to prove tenured status.
On second remand, the ALJ did not clearly determine either the start date or the length of the applicable probationary period, although he presumed the length was four years. Nor did he clearly determine whether appellant completed a probationary period. Instead, he ruled that, even if appellant completed a four-year probationary period, he did not earn tenure because he did not receive the evaluation ratings required under MCL 38.83b(1). He did not address the relevance of this Commission’s declaratory ruling in Boyne City Public Schools (13-11) regarding the interplay of MCL 38.81(2) (four-year probationary period for non-tenured individuals under contract on July 19, 2011) and MCL 38.83b(1) (evaluation ratings requirements).
Appellant’s first exception raises various challenges to the ALJ’s discussion of whether appellant completed a probationary period. We will address appellant’s arguments in terms of whether he completed a probationary period of four years. Only if he completed four years of probation will it be necessary to address whether he was actually subject to a five-year probationary period and whether he completed that probation. If he did not serve as a probationary teacher for a period of sufficient duration, the issue of the applicability of the Boyne City declaratory ruling’s discussion of MCL 38.83b(1) is moot.
The Teachers’ Tenure Act describes the probationary period in terms of “full school years of employment.” MCL 38.81 and 38.83b. When probationary employment begins on the first day of a school year, the probationary period ends on June 30 of the applicable year; when such employment does not begin on the first day of a school year, the probationary period runs from the date the assignment begins until the anniversary of that date in the applicable year. Hunter v Board of Education of the South Lyon Community Schools (79-14) (Decision and order on appellant’s and appellee’s motions for summary judgment, issued February 21, 1980). See Breuhan v Plymouth-Canton Community Schools, 425 Mich 278, 280-281 (1986) (affirming this Commission’s use of the anniversary date method). Thus, for example, a five-year probationary period that began at the start of the 2017-2018 school year will, absent any applicable required extensions and assuming compliance with all statutory requirements, end at the end of the 2021-2022 school year. A four-year probationary period that began on January 15, 2010, ended, absent any applicable required extensions and assuming compliance with all statutory requirements, on January 14, 2014.
Our first inquiry therefore concerns the date of the beginning of appellant’s probationary service. The Michigan Department of Education issued a teaching certificate to appellant on October 10, 2006, with endorsements to teach English (grades 6 to 12) and Bilingual (grades 6 to 12). (Appellee’s Exhibit 14). Only after that date was appellant eligible to serve a probationary period. His Detroit Public Schools and Detroit Public Schools Community District teaching career was as follows after October 10, 2006.
· October 10, 2006, to end of 2006-2007 school year: long term substitute, high school special education (learning disabilities) (Tr, pp 24, 35-40, 66-67, 77-79; Appellee’s Exhibits 3, 19)
· 2007-2008 school year: elementary/middle school building substitute (Tr, pp 14, 24-25, 63-65, 87; Appellee’s Exhibit 4)
· 2008-2009 school year: elementary/middle school building substitute (Tr, pp 14-15, 24-25, 63-65; Appellee’s Exhibits 5, 21)
· June 13, 2009, to July 25, 2009 (summer school): high school English Language Arts (Tr, pp 57-58; Appellant’s Exhibit N)
· 2009-2010 school year: high school English Language Arts (Tr, pp 40-47, 72)
· June 19, 2010, to August 1, 2010 (summer school): high school English Language Arts (Tr, pp 47-50; Appellant’s Exhibit P)
· October 6, 2010, to end of 2010-2011 school year: high school English Language Arts (Tr, pp 51, 54-56, 74; Appellee’s Exhibits 8, 23)
· June 18, 2011, to July 2, 2011 (summer school): high school English Language Arts (Tr, pp 33, 56, 58-59; Appellant’s Exhibit P)
· November 21, 2011, to end of 2011-2012 school year: high school English Language Arts (Tr, p 30)
· September 17, 2013, to October 28, 2013: elementary/middle school English Language Arts and mathematics (Tr, pp 18-19, 22-23; Appellant’s Exhibit 6; PDO, pp 16-17, 23-24, 27)
· 2014-2015 school year: middle school English Language Arts (Tr, pp 19-20; PDO, pp 17-19)
· Beginning of 2015-2016 school year to February 1, 2016: elementary/middle school science and physical education (Tr, p 20; PDO, pp 19-20)
Appellant argues that the ALJ erred in finding that the 2006-2007 school year was not part of his probationary period. The ALJ’s finding was based on the fact that appellant was not certified to teach special education (learning disabilities). (PDO, pp 26-27). Appellant disagrees, pointing out that he taught English Language Arts to the special education pupils to whom he was assigned that school year.
We agree with the ALJ that the 2006-2007 school year cannot be considered part of appellant’s probationary period. According to district administrator Barbara Moten, notwithstanding that appellant did not hold the credential required for a special education assignment, he was given the 2006-2007 assignment because a fully qualified teacher was not available. (Tr, pp 85-86, 111). Her testimony accurately described the general legal requirement that a teacher assigned to a special education classroom have the appropriate special education endorsement. (Tr, pp 104-105). As she testified, appellant’s assignment in 2006-2007 therefore required an endorsement in special education/learning disabilities. (Tr, pp 111-112). Contrasting appellant’s 2006-2007 classroom with a general education classroom into which special education pupils are mainstreamed, she accurately testified that teachers in the latter assignment do not need a special education credential. (Tr, pp 105, 108-109, 111). It is thus clear that the ALJ did not err in finding that none of appellant’s 2006-2007 school year service qualified as probationary service. Rogers v Board of Education of Fenton Area Public Schools (87-2) (work as a substitute teacher in special education cannot count toward completion of probationary period if teacher is not certified to teach special education); Mich Admin Code, R 340.1781 and R 340.1782 (endorsement requirements for teachers of students with disabilities), R 340.1788 (special requirements for teachers of students with learning disabilities), R 390.1105(3) (satisfaction of minimum qualifications for special education certification and endorsement as specified by the superintendent of public instruction), and R 390.661(1) (for purposes of article II of the Teachers’ Tenure Act, which governs probationary teachers, “certificated” means holding a certificate that is valid for the assigned position).
During the 2007-2008 and 2008-2009 school years, appellant served as a “building substitute.” Appellant does not challenge the ALJ’s determination that that service did not satisfy the requirements of probationary service.
The first time that appellant was assigned to a classroom within his certification was in June 2009, when he was assigned to an English language arts summer school class at Western High School. We address the significance of appellant’s summer school assignments infra. There is no question that his probationary period began, at the latest, at the beginning of the 2009-2010 school year because he taught within his certification during the entirety of that school year. Using the beginning of that school year as the start of his probationary period, he would have completed a four-year probationary period (assuming no breaks in service and assuming compliance with all statutory requirements) on June 30, 2013, the end of the 2012-2013 school year.
It is well established that breaks in a probationary teacher’s service may serve to extend the probationary service beyond the ending date that would apply without such breaks. In Ward v Board of Education of the Cadillac Area Public Schools (79-16), aff’d 134 Mich App 811 (1984), for example, the teacher’s two-year probationary period, which began on November 1, 1976, and would have normally ended on October 31, 1978, was extended until the end of January 1979 because she did not begin teaching within her certification during the 1977-1978 school year until November 25, 1977, about three months after the start of the school year. Similarly, in Fryxell v Livonia Public Schools (09-48), lv den unpublished order of the Court of Appeals, entered February 24, 2011 (Docket No. 299391), the teacher’s four-year probationary period, which began at the beginning of the 2005-2006 school year, was extended by a total of 56 days to account for the fact that, during her second and third years of probationary service (2006-2007 and 2007-2008), she took leaves of absence that totaled 56 days. Because of those breaks in service, the teacher did not complete her probationary period (and thus she did not earn tenure) at the end of the 2008-2009 school year. Another case involving a break in probationary service was Benson v Board of Education of the Westwood Community School District (14-17). In that case, the teacher’s four-year probationary period began on January 8, 2008, and, absent relevant breaks in service, would have ended on January 7, 2012. However, because she did not begin teaching in the 2011-2012 school year until October 27, 2011, and assuming no other relevant breaks in service, her probationary period was extended by about two months to early March 2012.
Using the end of the 2012-2013 school year as the end of a four-year probationary period for appellant in this case, we find that extension of that period is required. As noted above, appellant taught within his certification for the entire 2009-2010 school year. His 2010-2011 school year employment (which was also within his certification), however, did not begin until October 6, 2010, and we find that it is therefore necessary to extend a four-year probationary period that would have otherwise ended in June 2013 by the time during which he did not teach at the beginning of that school year. The record does not support a finding about the exact number of days he missed that year, but a reasonable, conservative estimate is that he began teaching 21 days after the start of the 2010-2011 school year. Similarly, his 2011-2012 school year employment, which was within his certification, did not begin until November 21, 2011, requiring extension of a four-year probationary period that would have ended in June 2013 by the time during which he did not teach from the beginning of the 2011-2012 school year until November 21, 2011. Again, the record does not support a finding about the exact number of days he missed during that period, but a reasonable, conservative estimate is that he began teaching 54 days after the start of the 2011-2012 school year. In addition, the otherwise applicable June 2013 end date of a four-year probationary period must be extended by a full school year because appellant did not work as a teacher for appellee during the 2012-2013 school year.
In summary, the otherwise applicable end date of a four-year probationary period (June 2013) in this case must be extended by one year (to account for appellant’s lack of service during the 2012-2013 school year) and by 75 school days (to account for breaks in service in fall 2010 and fall 2011). A determination of whether appellant completed four years of probation therefore requires examination of appellant’s post-June 2013 teaching assignments.
During the 2013-2014 school year, appellant taught within his certification for only 30 school days before starting continuous leaves of absence that lasted until the end of the school year. He taught within his certification for the entire 2014-2015 school year but his 2015-2016 assignment, which was, in any event, short-lived, was in science and physical education, neither of which he was certified to teach.
Even assuming arguendo that the 30 days that appellant taught at the beginning of the 2013-2014 school year can be considered part of a four-year probationary period, his probationary service after June 2013 was only one full school year (2014-2015) and 30 days. Thus, he did not serve a probationary period of four years because his probationary service after June 2013 did not equal a full school year plus 75 days and, when appellee took action to discharge him in October 2016, he had not earned tenure.
As noted above, appellant taught in English Language Arts classrooms during the summers of 2009, 2010, and 2011. He argues that those assignments should be considered in the calculation of the length of his probationary service. Although the ALJ acknowledged appellant’s summer school assignments, it is not clear if he considered them to be relevant to the probationary period question. (PDO, pp 24-25).
The issue of what effect, if any, summer school teaching has on the determination of whether an individual has completed a probationary period has not been squarely addressed in previous decisions of this Commission and we find that this case does not present the need for a comprehensive determination on the subject. As we noted in our April 23, 2018 decision in this matter, the purpose of the probationary period is to provide an opportunity for an individual to demonstrate the full range of functions normally associated with a regular teaching position, including, for example, lesson planning and participation in parent-teacher conferences. As we further observed, the fact that an individual’s performance is evaluated does not establish that his or her service satisfies the requirements of probationary service.
On second remand in this case, appellant testified that his 2010 and 2011 summer school assignments consisted of courses for which appellee provided the entire curriculum, including daily lesson plans that he simply followed and tests that he simply administered. There were no scheduled parent-teacher conferences. (Tr, pp 47-50, 56-58; Appellant’s Exhibit P). Appellant did not clearly describe the range of his responsibilities for the summer 2009 assignment. The only documentary evidence regarding evaluation of appellant’s performance during any of his summer school assignments was a “walk-through feedback form” dated July 6, 2009, signed by an assistant principal. (Appellant’s Exhibit N).
Based on the record, and even assuming that summer school assignments may ever be significant in determining the length of probationary service, we find that appellant did not sustain his burden of showing that his summer school teaching served the purpose of a probationary period. The record does not support a finding that he assumed the full range of responsibilities normally required of a classroom teacher during any of his three summer school assignments.
In an additional argument raised in support of his first exception, appellant claims that he was tenured under the final sentence of section 2 of article III of the Teachers’ Tenure Act, MCL 38.92.
If a teacher on continuing tenure is employed by another controlling board, the teacher is not subject to another probationary period of more than 2 years beginning with the date of employment, and may at the option of the controlling board be placed immediately on continuing tenure. A notice provided under section 3 of article 2 shall be given not later than 60 days before the completion of the probationary period. If a teacher on continuing tenure becomes an employee of another controlling board as a result of school district annexation, consolidation or other form of school district reorganization, the teacher shall be placed on continuing tenure within 30 days unless the controlling board, by a 2/3 vote on an individual basis, places the teacher on not more than 2 years' probation. However, if such a teacher is under contract but not on continuing tenure with the employing board as of the effective date of the amendatory act that added this sentence, the teacher is not subject to another probationary period of more than 1 year beginning with the date of employment. (Emphasis supplied.)
According to appellant, he qualifies as one of the non-tenured teachers described in the highlighted sentence. However, the final sentence of MCL 38.92 was added by 1993 PA 59, effective June 11, 1993. See Mayman v Board of Education of the Ann Arbor Public Schools (98-44) (final sentence of MCL 38.92, as amended in 1993, addresses the probationary period of some teachers who were under contract but not yet tenured as of June 11, 1993). Thus, even if the other requirements of MCL 38.92 were satisfied, the 1993 amendment clearly does not apply to appellant, who was not employed by appellee until long after June 11, 1993.
For all of these reasons, we find that appellant did not complete a probationary period of four (much less five) years and that he was therefore a probationary teacher when appellee took action to discharge him, an action that is not subject to the “not arbitrary or capricious” standard or the procedural protections of article IV of the Teachers’ Tenure Act. MCL 38.83(2) (probationary teacher may be dismissed at any time); MCL 38.84 (article IV (which includes the “not arbitrary or capricious” standard of MCL 38.101(1) and the procedural protections of MCL 38.102) does not apply to probationary teachers). Therefore, for reasons other than those upon which the ALJ relied in finding that appellant was not a tenured teacher at the time in question, we deny appellant’s first exception.
Appellant’s second exception challenges the ALJ’s finding that appellee complied with its obligations under section 2 of article IV of the Teachers’ Tenure Act, MCL 38.102. In his third exception, he argues that appellee’s decision to discharge him was arbitrary or capricious under section 1 of article IV of the Act, MCL 38.101(1). As stated above, article IV of the Act does not apply to probationary teachers. Given our determination that appellant was a probationary teacher at the time of appellee’s decision to discharge him and that we are therefore without jurisdiction to consider his claim of appeal, it is unnecessary that we address his second and third exceptions, which we therefore deny as moot.
For the foregoing reasons, we order the following:
Appellant’s exceptions are denied.
Appellant’s claim of appeal is dismissed.
David Campbell, Chairperson
R. Stephen Olsen, Secretary
Michelle Richard, Member
Jeffrey Sewick, Member
William Wooster, Member
Dated: May 3, 2019
 At that time, the record also lacked adequate development of facts related to the timeliness issue.
 The definition of “validity” is now in Mich Admin Code, R 390.1101(z).
 Although he found that appellant did not earn tenure, the ALJ also addressed the issue of appellee’s compliance with notice provisions of the Teachers’ Tenure Act that apply to tenured teachers. (PDO pp. 28-29).
 Appellant filed exceptions before the close of business on March 12, 2019, as required by MCL 38.104(5)(j) and Mich Admin Code, R 38.143 and R 38.145(1). He filed another document entitled exceptions after the close of business on March 12, 2019. We do not consider the document that was not timely filed.
 References to exhibits are to the documents admitted into evidence during the September 28, 2018 hearing.
 Appellant has been certificated with endorsements in English Language Arts and Bilingual continuously since October 10, 2006.
 Transcript references are to the transcript of the September 28, 2018 hearing.
 Appellant was not employed by appellee during the 2012-2013 school year. (Tr, pp 17, 59).
 Further analysis of the requirements of the statute is unnecessary and we do not address appellant’s arguments in that regard.