HAYNES KATINA v DETROIT PUBLIC SCHOOLS COMMUNITY DISTRICT 17-21 04/26/18

STATE OF MICHIGAN

MICHIGAN ADMINISTRATIVE HEARING SYSTEM

Issued and entered

 this 26^th day of April, 2018

by: Michael J. St. John

Administrative Law Judge

ORDER GRANTING RESPONDENT’S MOTION FOR

SUMMARY DISPOSITION BASED ON LACK OF JURISDICTION

On April 5, 2018, Respondent filed a Motion and Brief for Summary Disposition under Commission Rule 38.155 generally and specifically Rule 38.155(d) and (e).  On April 16, 2018 the Respondent re-filed their motion and included a Request for Hearing and Notice to Claimant of Required Response.

On April 18, 2016 the undersigned Administrative Law Judge issued an Order Scheduling Motion Hearing for the previously scheduled telephone prehearing conference on April 23, 2018.

Petitioner was instructed to file a response no later than 2:00 p.m. on Friday April 20, 2018; Petitioner filed no response.

The parties appeared at the April 23, 2018 motion hearing and were given an opportunity to argue their respective positions.  For the reasons listed below, Respondent’s motion is GRANTED.

Underlying Facts

Petitioner is a certificated and tenured teacher who has worked full time for the Respondent school district since 1997 (initially as a full time substitute teacher and since 1999 as a full time certificated teacher).  There was an incident on June 6, 2017 that led to the Petitioner’s suspension and ultimate discharge.

Timeline

Respondent sets forth a timeline of events supported by documentation and affidavits that corresponds with the Michigan Administrative Hearing System’s file and is uncontested by the Petitioner.  The following dates are relevant to the Respondent’s motion:

November 15, 2017  Respondent files teacher tenure charges against Petitioner

November 16, 2017  Respondent emails tenure charges to Petitioner

December 4, 2017   Petitioner files Claim of Appeal with Teacher Tenure Commission (TTC)

              Petitioner serves Respondent via First Class Mail[1]

December 11, 2017  Petitioner again files Claim of Appeal with TTC[2]

              Petitioner serves Respondent via First Class Mail[3]

January 2, 2018    Petitioner files (First) Amended Claim of Appeal with TTC

Petitioner serves Respondent via First Class Mail[4]

February 22, 2018  Petitioner files (Second) Amended Claim of Appeal with TTC

               Petitioner serves Respondent via email

March 9, 2018 Petitioner files (Third) Amended Claim of Appeal with TTC

              Petitioner serves Respondent via email and fax

March 18, 2018 Petitioner files Fourth Amended Claim of Appeal with TTC

              Petitioner serves Respondent via email and fax

Legal Standard for Summary Disposition

Under Commission Rule 38.155(e), a motion for summary disposition may grant relief to the moving party as a matter of law if the appeal is barred because it is untimely.  The focus of the Respondent’s argument is that the Petitioner’s appeal is untimely under MCL 38.104(1) which requires in relevant part:

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. …

MCL 38.104(1).

Rule 38.143 requires that “… an appellant shall file a claim of appeal with the commission not later than 20 days after receipt of the controlling board’s decision and notice of tenure rights.  …”  Here that date was December 6, 2017 – 20 days after the Respondent’s November 16, 2017 email to Petitioner was sent (and is presumed to have been received) which included the controlling board’s emailed decision, summary of teacher tenure rights, and a copy of the statute.

The Petitioner attempted to timely file her claim of appeal on the 18^th day by faxing an appeal to the TTC on December 4, 2017.  It was received by the TTC.

The Petitioner did not serve her claim of appeal on the Respondent either in person, by registered mail return receipt requested, certified mail return receipt requested; instead she mailed two copies to the Respondent at two different addresses (one to the school board and one to the personnel office).  To date, the Petitioner has never served any complaint either in person, by registered mail return receipt requested, or by certified mail return receipt requested on the Respondent as required by Rule 38.144

An appeal is commenced by filing with the commission, a notice of claim of appeal, and a claim of appeal. The appellant shall serve a copy of the notice of the claim of appeal and the claim of appeal upon the controlling board by delivering the documents in person, by registered mail, return receipt requested, or by certified mail, return receipt requested.

R 38.144.

Petitioner’s December 4, 2017 Claim of Appeal is deficient and does not meet the standards required by Rule 38.143.  The Petitioner’s January 2, 2018 and February 22, 2018 Claims of Appeal are also deficient.  The Petitioner’s March 9, 2018 and March 18, 2018 Claims of Appeal are sufficient and in compliance with Rule 38.143.

Applicable Law

The statutory timelines for filing an appeal are jurisdictional; when the timelines are not met they operate to deprive the Commission of jurisdiction over an untimely claim of appeal.  Curry v Huron Valley Schools (73-59) and Halliburton v Detroit Board of Education (79-1).  When a claim of appeal is found to be filed untimely, the Commission lacks jurisdiction over the claim of appeal and summary disposition is appropriate.

Respondent argues that the case should be dismissed for two reasons: 1) the initial claim of appeal that was timely filed on December 4, 2017 is inadequate and 2) a claim of appeal was not served on the Respondent within the statutorily prescribed time limits.

Turning to the first issue, Respondent argues, “Claimant failed to file or serve a Notice of Claim by December 5, 2017.  Claimant failed to file or properly serve a compliant Claim of Appeal by December 5, 2017[5].”  Respondent cites no authority to support their claim that an insufficient appeal that is timely filed is time barred simply because it is insufficient.

Respondent also argues that two separate and distinct documents are required: a notice of claim of appeal and a claim of appeal.  Respondent cites no authority for the proposition that one document, if it serves to both claim appeal and put the Respondent on notice of appeal cannot be sufficient.

Because the TTC rules do not specifically address amendments beyond allowing them (Rule 38.148), the TTC looks to the Michigan Court Rules for guidance on matters not addressed by the TTC’s Rules.  Alsup v Waterford School District Board of Education (85-10).  The relevant Michigan Court Rules is MCR 2.118(D) which holds:

Relation Back of Amendments. An amendment that adds a claim or a defense relates back to the date of the original pleading if the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth, or attempted to be set forth, in the original pleading.  …

MCR 2.118(D)

Here the original Claim of Appeal filed by the Petitioner, although woefully inadequate, clearly establishes that the Petitioner 1) desires to appeal, 2) sets forth the allegation that mistakes were made, 3) provides some details of the mistake made, and 4) requests relief.  Although not titled as such, the Petitioner’s December 4, 2017 filing is a notice of a claim of appeal and a claim of appeal.  The Petitioner clearly attempted to set forth the basis for her appeal in the initial timely filed pleading.  This is sufficient to avoid summary disposition on the filing of her appeal with the TTC.

Turning to the second issue, Respondent argues, “Claimant failed to serve those documents[6] on Respondent ‘in person, by registered mail, return receipt requested, or by certified mail, return receipt requested’ as required by law, by December 5, 2017[7].”  This is undisputed.  Indeed, the Petitioner only served the Respondent via First Class Mail – she has never served the Respondent with any claim of appeal in compliance with Rule 38.143.

Here the Respondent has established, and the Petitioner has failed to rebut that the Petitioner failed to timely serve her claim of appeal on the Respondent controlling board by the statutory 20-day deadline.  Failure to timely serve the commission, in the manner set forth in the Commission’s rules, deprives the Commission of jurisdiction.  The statutory timelines for filing an appeal are jurisdictional; when the timelines are not met they operate to deprive the Commission of jurisdiction over an untimely claim of appeal.  Curry v Huron Valley Schools (73-59), Halliburton v Detroit Board of Education (79-1), Bush v Zeeland Public Schools (97-42), and Jones-Salam v Baldwin Community Schools (14-54).  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. 

Therefore, summary disposition is appropriate under Rule 38.155(e) since the Commission lacks jurisdiction and the claim of appeal is barred because it is untimely.

Although unfortunate for the Petitioner, the statute, rule, and case law are unequivocal.  These rules exist to put the Respondent on notice of the Petitioner’s claim of appeal which was not done here since the Respondent did not receive notice of the Petitioner’s claim of appeal until sent an initial notice to appear at a prehearing conference.  Failure to properly serve the controlling board with the tenured teacher’s claim of appeal deprives the Teacher Tenure Commission of jurisdiction to hear that tenured teacher’s appeal.

IT IS ORDERED that Respondents’ Motion for Summary Disposition is GRANTED.

IT IS FURTHER ORDERED that this case is dismissed with prejudice.

/S/

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 Commission Rules.  The brief and statement of exceptions must be served upon each of the parties within the time limit for filing exceptions and brief. 

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.  Commission Rules require that arguments in exceptions/cross-exceptions briefs must correspond to the order of exceptions/cross-exceptions and that the argument must be prefaced by the exception/cross-exception which it addresses. Commission Rule 46; 1998-2000 AC, R 38.176.

The deadline for filing exceptions and briefs is May 17, 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 following address:

Office of Administrative Law

608 West Allegan Street

P.O. Box 30008

Lansing, Michigan 48909.

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.

[1] It is unclear whether the Respondent received this mailing in January of 2018 or not at all.

[2] Petitioner filed the same four pages with the TTC on both December 4, 2017 and December 11, 2017.  Neither version was served on the Respondent.

[3] Respondent received this mailing in January of 2018.

[4] Respondent received this mailing in January of 2018.

[5] Respondent has incorrectly calculated the date that Petitioner’s Claim of Appeal was due from the date of the charges (November 15, 2017) rather than the date that the date that the charges were received by the Respondent (November 16, 2017).  In either event, the Petitioner’s December 4, 2017 Claim of Appeal was timely filed.

[6] The essential document referenced is the December 4, 2017 Notice and Claim of Appeal.

[7] As noted elsewhere, the deadline for the Claimant’s filing was December 6, 2017.