STATE OF MICHIGAN
STATE TENURE COMMISSION
Katina Haynes,
Appellant
v Docket No. 17-21
Detroit Public Schools Community District,
Appellee
Attorney for Appellant: In propria persona
Attorney for Appellee: Theophilus E Clemons
Office of the General Counsel
3011 W. Grand Blvd.
Suite 1002
Detroit, MI 48202
DECISION AND ORDER ON EXCEPTION
On December 4, 2017, appellant Katina Haynes, a tenured teacher, filed a claim of appeal challenging the November 14, 2017 decision of appellee Detroit Public Schools Community District to proceed on tenure charges. Appellee filed a motion for summary disposition, arguing in part that this Commission lacked jurisdiction to consider the claim of appeal because it was not timely served on appellee. Mich Admin Code, R 38.155(1)(d).
There was a telephonic hearing on the motion for summary disposition on April 23, 2018, before Administrative Law Judge Michael J. St. John (ALJ). On April 26, 2018, the ALJ issued an order granting appellee’s motion for summary disposition and dismissing the claim of appeal.
On May 16, 2018, appellant filed an exception to the April 26, 2018 order. Appellee did not file cross-exceptions or a statement in support of the order.
DISCUSSION
MCL 38.104(1) sets forth the procedure for contesting a controlling board’s decision to proceed on charges against a tenured teacher.
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.
Thus, a tenured teacher may contest the decision of a controlling board to proceed on charges against the teacher only by doing both of the following not later than 20 days after receiving the board’s decision: 1) filing a claim of appeal with this Commission and 2) serving a copy of the claim of appeal on the board. Absent compliance with both of these requirements, “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.” MCL 38.104(1). This Commission is without jurisdiction to consider a claim of appeal that is not served on the controlling board within the 20-day statutory period. Jones-Salaam v Baldwin Community Schools (14-54).
Mich Admin Code, R 38.144 specifies the manner in which a teacher shall serve a claim of appeal on a controlling board.
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.
In this case, appellant does not dispute that she received the discharge decision and notice of tenure rights on November 16, 2017.[1] The 20-day statutory period therefore ended on December 6, 2017.
According to appellant, she sent a copy of her claim of appeal to appellee by first class mail on December 4, 2017, which was the 18th day of the 20-day statutory period. She never served a copy of the claim of appeal on appellee by personal delivery or by registered or certified mail, return receipt requested, as required by Mich Admin Code, R 38.144. At the hearing on the motion for summary disposition, appellee’s counsel asserted that he did not receive notice of the claim of appeal until he received from the ALJ a December 12, 2017 notice to appear at a December 21, 2017 telephonic prehearing conference.
Mich Admin Code, R 38.144 was promulgated under the Administrative Procedures Act, MCL 24.201 et seq., and has the force and effect of law. Clonlara, Inc. v State Board of Education, 442 Mich 230, 239 (1993). In Bacus v Monroe County Intermediate School District (17-2), this Commission considered the effect of the teacher’s mailing of the claim of appeal to the controlling board on the 20th day after her receipt of the board’s decision. Upholding the ALJ’s dismissal of the claim of appeal, we held that satisfaction of Mich Admin Code, R 38.144 is required in order for a claim of appeal to be considered as timely served for purposes of MCL 38.104(1). As noted in that case,
The rule reflects a legitimate concern that a controlling board receive reasonable notice of the filing of a claim of appeal and it aligns with the clear intention of the Legislature that tenure matters proceed efficiently and expeditiously.
In this case, appellant argues that, in sending the claim of appeal to appellee by first class mail, she relied to her detriment on the letter from appellee that notified her of the decision to proceed on the tenure charge and to discharge her. According to that letter, a copy of the claim of appeal “should be sent to: Detroit Public Schools Community School District Office of Employee Relations, 3011 W. Grand Blvd., 10th Floor Fisher Building, Detroit, Michigan 48202.”
In Bacus, supra, the teacher claimed that, in serving her claim of appeal on the controlling board by first class mail, she reasonably relied on a generic proof of service that was available on this Commission’s website. Rejecting this argument, we observed that the teacher “was charged with knowledge of the legal requirements for perfecting her claim of appeal” and that, in contrast to Mich Admin Code, R 38.144, the generic proof of service did not address specific service requirements or have the force of law. So too in this case, appellant was charged with knowledge of the service requirements; the letter from appellee did not have the force of law and, in any event, told her the address to which she should send her claim of appeal but did not describe how to do so.
For these reasons, we deny appellant’s exception. Appellant’s failure to comply with the service requirement of Mich Admin Code, R 38.144, deprived this Commission of jurisdiction to consider her claim of appeal.
ORDER
For the foregoing reasons and based on the record, we order the following:
Appellant’s exception is denied.
The claim of appeal is dismissed.
_______________________________
David Campbell, Chairperson
_______________________________
R. Stephen Olsen, Secretary
_______________________________
Nancy Danhof, Member
_______________________________
Vacant, Member
Absent: Patrick McKennon, Member
July 11, 2018
[1] According to the April 5, 2018 affidavit of Lauri D. Washington, deputy executive director of appellee’s Office of Employee Relations, the decision and notice were sent to appellant on November 16, 2017, both by email and by mail. (Exhibit 1, respondent’s motion for summary disposition).