JASPER JOSEPHUS v DETROIT PUBLIC SCHOOLS COMMUNITY DISTRICT 18-10 02/08/19

STATE OF MICHIGAN

MICHIGAN ADMINISTRATIVE HEARING SYSTEM

___________________________________/

Issued and entered

 this 8^th day of February 2019

by: Michael J. St. John

Administrative Law Judge

PRELIMINARY DECISION AND ORDER

OF

ADMINISTRATIVE LAW JUDGE

PROCEDURAL HISTORY

On September 4, 2018, Respondent’s Superintendent charged Petitioner, a teacher in the district, with being an ineffective teacher (Exhibits F and G). On September 11, 2018, the Respondent School Board voted to proceed on the tenure charges and dismissed the Petitioner from his teaching position.  On October 1, 2018, Petitioner filed a claim of appeal with the Teachers’ Tenure Commission.

On October 5, 2018, the Respondent, through their attorney, filed an answer.

On October 18, 2018 a telephone prehearing conference was held.  On               October 25, 2018 a second telephone prehearing conference was held.  On    December 3, 2018 the Petitioner indicated that he was dismissing the tenure hearing and moving to discuss final settlement during the scheduled final telephone prehearing conference.  The Administrative Law Judge sent correspondence to the Petitioner indicating that dismissing the hearing would dismiss the case and cancel the final pre-hearing conference.  The Petitioner opted to continue with the case and the telephone final prehearing conference was held as scheduled on December 14, 2018.

On December 17, 2018 the hearing was convened as scheduled.  Petitioner/Appellant represented himself.  Respondent/Appellee was represented by attorney at law     Phyllis Hurks-Hill.  The record was closed at the conclusion of the hearing on     December 17, 2018.

EXHIBITS

The Petitioner (numbers) and Respondent (letters) submitted the following exhibits which were admitted into evidence without objection unless otherwise noted:

1. Introduction

2. Emails regarding behavior

3. Open House Invitation and Letters of Recommendation

5. 2011-2012 Evaluation Expungement

6. Emails

7. Claim of Appeal and 2017-2018 Evaluation

A. Teacher Evaluation Guide

C.   2016-2017 Evaluation

D.   2017-2018 Evaluation

E.   Evaluation Summaries

F.    September 4, 2018 Letter

G.   September 12, 2018 Letter and Teacher Tenure Charges

Exhibit 4, a character reference, was not admitted due to the Respondent’s sustained hearsay objection.

Exhibit B was not offered.

ISSUES

1. What and when was the Petitioner’s probationary period?
2. Is the Petitioner a tenured teacher?
3. Is the Petitioner entitled to a teacher tenure commission hearing where the outcome of the hearing determines the Petitioner’s tenure status?
4. Should one or more of the Petitioner’s year-end evaluations be modified?
5. Is the Respondent’s decision to terminate the Petitioner arbitrary or capricious?

APPLICABLE LAW

Standard of Review

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 a teacher contests the charges against him, the district is 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) and bears the burden of proof to establish its case by a preponderance of the evidence.  Craig v Larson, 432 Mich 346, 352 (1989). 

A "preponderance of the evidence" 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).

Summary Disposition

(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:

…

(d) The commission lacks jurisdiction of the subject matter.

…

(3) The administrative law judge may order an immediate hearing on disputed questions of fact and enter a summary disposition if the proofs show that the moving party is entitled to summary disposition or the administrative law judge may postpone the hearing until the merits are heard.

…

Rule 38.155

A party may make a motion for summary disposition of all or part of a proceeding. When an administrative law judge does not have final decision authority, he or she may issue a proposal for decision granting summary disposition on all or part of a proceeding if he or she determines that that

any of the following exists:

…

(c) There is a lack of jurisdiction or standing

     …

     Rule 792.10129(1)

Obtaining Tenure

(1) The term “teacher” as used in this act means a certificated individual employed for a full school year by any board of education or controlling board.

(2) An individual who is not certificated but is employed for a full school year pursuant to section 1233b of the revised school code, Act No. 451 of the Public Acts of 1976, being section 380.1233b of the Michigan Compiled Laws, or is employed pursuant to an annual vocational authorization or a temporary approval, as defined in state board rule, is considered to be a teacher for the purpose of serving the probationary period under article II, but such an individual is not considered a teacher for the purpose of continuing tenure under article III until he or she becomes certificated.

MCL 38.71

The term “certificated” means holding a valid teaching certificate, as defined by the state board of education.

MCL 38.72

(1) Subject to subsections (2) and (3) and section 3b of this article, a teacher is in a probationary period during his or her first 5 full school years of employment.

(2) Subject to section 3b of this article, a teacher under contract but not on continuing tenure as of the effective date of the 2011 amendatory act that amended this subsection is in a probationary period during his or her first 4 full school years of employment.

(3) A teacher on continuing tenure as of the effective date of the 2011 amendatory act that amended this subsection continues to be on continuing tenure even if the teacher has not served for at least 5 full school years of employment.

MCL 38.81

(1) Before the end of each school year, the controlling board shall provide the probationary teacher with a definite written statement as to whether or not his or her work has been effective. Subject to subsection (2), a probationary teacher or teacher not on continuing contract shall be employed for the ensuing year unless notified in writing at least 15 days before the end of the school year that his or her services will be discontinued.

(2) A teacher who is in a probationary period may be dismissed from his or her employment by the controlling board at any time.

MCL 38.83

(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.

MCL 38.83b

Articles 4, 5 and 6^[1] shall not apply to any teacher deemed to be in a period of probation.

MCL 38.84

A teacher who has achieved continuing tenure status may appeal to the tenure commission any decision of a controlling board under this act, other than a decision governed by article IV on discharge or demotion of a teacher on continuing tenure, within 20 days from the date of the decision.  …

MCL 38.121

FINDINGS OF FACT

Following the testimony elicited in this matter, together with the documents admitted to the record, the following facts were found:

1. The Petitioner first became a certificated teacher within the meaning of the Teacher Tenure Act in 2010.
2. The Petitioner was first employed with the Respondent District as a certificated contract teacher on November 15, 2010.
3. The Petitioner completed four full years of teaching in approximately January of 2016.
4. The Petitioner never received three consecutive effective or highly effective year-end evaluations while a probationary teacher.
5. The Petitioner worked the following dates with the Respondent-District as a certificated teacher teaching in a classroom within his area of certification and earned the following evaluations:

Start Date    End Date  % of Year Worked   Evaluation Received

11/15/10  6/17/11   74%           (None)

10/27/11  6/15/12   79%           (Minimally Effective)^[2]

9/3/13        6/13/14   98%           Effective

8/25/14   6/12/15   100%           Minimally Effective

8/31/15   6/17/16   100%          Ineffective

8/29/16   6/21/17   100%           Ineffective

8/28/17   6/22/18   100%          Ineffective

The testimony of the witnesses who testified is summarized here – any opinions noted constitute that witness’ opinion:

Shannon Waite, English Teacher at Ben Carson High School

6. Ms. Waite teaches 10^th grade English, yearbook, and creative writing.  This is her fifth year at Ben Caron High School.  Ms. Belcher was her principal initially and then Mr. Todd.  Ms. Waite was effective her first year, and has been highly effective for the next three years.  Ms. Waite was the Teacher of the Year for the 2015-2016 school year.
7. Ms. Waite indicated that student discipline at Ben Carson High School is not out of the norm for a high school – she indicated that student behavior has been worse at other schools where she has taught.
8. Ms. Waite noted that student behavior in her classroom is part of her teacher evaluation.
9. Ms. Belcher did her evaluations when she was principal, and Mr. Todd has done the evaluations since he has been principal.
10. Ms. Waite has concerns about the evaluation system itself, but not with the evaluators.  Ms. Waite’s concerns include the snapshot nature of the observations and the use of data in teacher evaluations.
11. Ms. Waite has not observed Mr. Jasper teach.

Kwesi Matthews, Science Teacher at Ben Carson High School

12. Mr. Matthews teaches science and health sciences at Ben Carson High School.
13. The creative elective class at Ben Carson High School was switched from art to a music class when Mr. Jasper left.
14. Mr. Matthews has served as a substitute teacher for the music class.  After the first day of school during the 2018-2019 school year, the music teacher quit.
15. Mr. Matthews observed that students seemed to like Mr. Jasper.

Precious McGuire, English Teacher at Ben Carson High School

16. This is Ms. McGuire’s second year teaching at Ben Carson High School.  She had previously taught in Southfield, Wayne-Westland, Pontiac, and Livonia.
17. Ms. McGuire believes that the students at Ben Carson desire to excel academically.  Ms. McGuire is concerned that her students do not have access to student activities that many other students have.
18. Ms. McGuire has noted that there are discipline problems at Ben Carson High School.  She has had students with discipline problems including tardiness and dress code violations.  Ms. McGuire indicated that she is proactive and has not had many discipline problems.

Josephus Jasper, Petitioner (former Art Teacher at Ben Carson High School)

19. Mr. Jasper earned a B.F.A. from Wayne State University in May of 1990.  He has a K-12 art certification that he received in 2010 which was on file with the Respondent.
20. Mr. Jasper started at J.R. King at Detroit Public Schools on November 15, 2010.  He taught art while employed with the Respondent.  He was there for the remainder of the 2010-2011 school year when he was laid off.
21. Mr. Jasper next went to Stewart Elementary starting October 27, 2011.  He was there for the remainder of the 2011-2012 school year when he was again laid off.
22. Mr. Jasper next went to Noble K-8 school starting September 3, 2013.  He was transferred to East English Village on December 9, 2013.  He was transferred to Hutchinson K-8 School year starting on April 7, 2014.  He was there for the remainder of the 2013-2014 school year.
23. Mr. Jasper taught at Ben Carson High School for the 2014-2015, 2015-2016, and 2017-2018 school years.
24. Mr. Jasper received no evaluation rating for the 2010-2011 school year, minimally effective for 2011-2012, no rating for 2012-2013 (because he was laid off that school year), effective for 2013-2014, minimally effective 2014-2015, and ineffective 2015-2016, 2016-2017, and 2017-2018.
25. Mr. Jasper believes that that he should not have been rated ineffective.
26. Mr. Jasper initially testified that he can only be evaluated by an art teacher but subsequently agreed that any administrator could evaluate him.
27. Mr. Jasper believes that he should have been evaluated more on his ability to teach art rather than his ability to handle disciplinary issues in his classroom.
28. Mr. Jasper agreed that teachers need to handle disciplinary issues in the classroom particularly as those issues negatively affect other students’ ability to learn.
29. Teachers can provide artifacts as part of the teacher evaluation process.          Mr. Jasper provided a portfolio.
30. Mr. Jasper took online courses to help improve his teaching effectiveness.
31. Mr. Jasper used the overhead projector, document camera (rarely), and youtube.com videos.  Mr. Jasper also allowed students to research with their own computers (or in the computer lab).
32. Mr. Jasper comes from a disadvantaged background and uses that as part of his teaching.
33. Mr. Jasper indicated that he would respond to some teacher dialogues about student behavioral issues but did not amongst any of the emails in Exhibit 2.
34. Mr. Jasper intended to provide evidence of student growth, but testified that he may not have provided those to Mr. Todd as part of his evaluations.
35. Mr. Jasper believes that his classroom was improperly ventilated which he believes impaired students’ learning.
36. Mr. Jasper considered the ‘Do Now’ activities he  was required to do with his students to be “busy work”.
37. Mr. Jasper would allow students to keep their heads down if there was some medical or other problem with the student (too hot, too cold, too tired, respiratory issues, etc.)
38. Mr. Jasper indicated that he was not following the Danielson model because it was not appropriate for art teachers.  Mr. Jasper believes that following the Danielson model strips him of his ability to be a philosopher because it is too structured to allow any creativity.  He believes that he should be evaluated as an artist and a philosopher rather than as part of an evaluation rubric.

Charles Todd, Principal at Ben Carson High School

39. Mr. Todd has bachelors and graduate degrees and a teacher’s certificate.  He attends professional development frequently and particularly in the use of the teacher evaluation in use at Detroit Public Schools.
40. Mr. Todd taught science with Detroit Public Schools for about 10-12 years and then became an administrator.
41. Mr. Todd was Dean of Culture at Ben Carson and has been Principal at Ben Carson since the 2015-2016 school year.
42. Administrators give teachers the Teacher Evaluation Guide (the 2017-2018 version is Exhibit A) each year to help the teachers prepare to be successful.   Mr. Todd also explains the teacher evaluation process to teachers at the beginning of each year and periodically throughout the year.
43. Mr. Todd observes teachers in their classroom on Domains 2 and 3 of the evaluation (Classroom Environment and Instruction respectively).
44. Mr. Todd has formally evaluated hundreds of teachers.  He has also provided and continues to provide informal feedback to teachers on a weekly basis.
45. Mr. Todd completed the Respondent’s end-of-year evaluation for the 2017-2018 school year.  Mr. Todd did all the teacher classroom observations and year-end evaluations for the year for the Petitioner and every other teacher at Ben Carson High School.
46. Mr. Todd sits down with each teacher, including the Petitioner, and allows them to provide artifacts to show planning, preparation, and professional responsibilities.
47. Mr. Todd had an Individualized Development Plan (IDP) which the Respondent calls a Personal Learning Plan (PLP).  This document is meant to help the teachers improve their teaching.  The Petitioner’s plan for 2017-2018 focused on classroom management and student engagement.
48. The Respondent had teachers and administrators provide instructional assistance to teachers to help them be more effective teachers.  Mr. Todd had several teachers and administrators go into the Petitioner’s classroom on several occasions to share resources, observe his classroom, and provide him with tips and suggestions to improve his teaching.
49. Mr. Jasper initially did not have students doing work at the beginning of each class (“do nows”) when they were first recommended but eventually started doing them although they were not very rigorous (copying material from the blackboard into students’ individual notes) and were too long (up to 25 minutes instead of 5 to 7 minutes).
50. Mr. Todd’s three classroom evaluations showed several issues.  Despite these issues, Mr. Todd rated the Petitioner minimally effective in classroom management.  Mr. Todd observed several instances of students wanting to be more involved but the Petitioner not engaging the students.  On November 28, 2017, only 8 of 26 students were engaged in the ‘do now’ activity and there was no discussion of what was accomplished by doing the task.
51. The Petitioner did not provide Mr. Todd any measures of student growth.         Mr. Todd would have liked to have seen student pre- and post-tests or student portfolios.  Mr. Jasper provided only some examples of student work (but not before and after work showing student growth).
52. Every other teacher (25-30 teachers) provided artifacts showing student growth.
53. After Mr. Todd completes his portion of the evaluation it is forwarded to the district where attendance and discipline are entered into the evaluation equation.
54. Mr. Todd has instructed teachers to not allow any students to put their heads down.  Mr. Todd requires all teachers to engage students who have put their heads down and, if they fail to comply, call security or send the students to the principal’s office.
55. Mr. Todd believes that he has a good group of students.  He notes that his students do have discipline problems, but there are many fewer instances of discipline at Ben Carson than at other Respondent schools.
56. Five percent of the students of Ben Carson High School’s 2017-2018 graduating class attended the University of Michigan.
57. Mr. Todd noted that 2016-2017 continued to show that the Petitioner had trouble with classroom management and student engagement.
58. Mr. Todd trained teachers on the teaching concept of gradual release: having lessons progress from teacher-centered to teacher-assisted, to student group work, to student individual work.  Mr. Todd believes that the gradual release concept has helped students improve their learning since it has been implemented.
59. The Petitioner had a PLP each year.  Mr. Todd required each teacher to have a PLP, even the highly effective teachers, since there is always room for all teachers to improve.
60. Mr. Todd has rated teachers as ineffective on individual elements.  Mr. Todd has only rated the Petitioner as overall ineffective.
61. Mr. Todd is unsure what the Petitioner’s student growth showed for the 2015-2016 year.
62. Part of the reason for the different evaluations each year on element 4d of the evaluations, participating in the professional community, is the different activities that the Petitioner engaged in and the artifacts that the Petitioner provided.

CONCLUSIONS OF LAW

During the hearing, the Respondent moved for summary disposition on the grounds that the Petitioner did not have tenure and therefore the Teacher Tenure Commission lacks jurisdiction.  [TR 56:9-13].

The Petitioner remained in his probationary period throughout the duration of his employment with the Respondent-Employer; he never obtained tenure status.

It is appellant’s (Petitioner’s) burden to prove that he or she achieved tenure.  Babcock v Board of Education of the Kent Intermediate School District (91-13).  If a teacher was not tenured, this Commission has no jurisdiction to consider the teacher’s challenge to the nonrenewal of the contract.  Fryxell v Livonia Public Schools (09-48).

A probationary period is a period during which a teacher renders full services to a school district.  A probationary teacher on layoff is not employed for purposes of serving the probationary period.  Stakoe v Board of Education of the Mackinac Island Public Schools (81-65) (Decision and order, appellant’s motion for partial summary judgment, et al, June 30, 1982); Newcombe v Board of Education of the Flint Community Schools (10-35); Fryxell v Livonia Public Schools (09-48).  A teacher’s probationary period does not include the school days that the teacher did not render teaching services to the district because the teacher was on layoff.  Benson v Westwood, (14-17).

The Petitioner’s employment record establishes the following time periods:

Start Date    End Date  % of Year Worked   Evaluation Received

11/15/10  6/17/11   74%           (None)

10/27/11  6/15/12   79%           (Minimally Effective)^[3]

9/3/13        6/13/14   98%           Effective

8/25/14   6/12/15   100%          Minimally Effective

8/31/15   6/17/16   100%           Ineffective

8/29/16   6/21/17   100%           Ineffective

8/28/17   6/22/18   100%          Ineffective

Because the Petitioner was initially hired by Detroit Public Schools on              November 15, 2010 and was there for the remainder of the 2010-2011 school year when he was laid off, he was under contract on the date the 2011 amendments went into effect in July of 2011 and so MCL 38.81(2) applies.  This is so even though the Petitioner was laid off during that time since he had a right of recall.  The Petitioner therefore had a four (4) year probationary period.^[4]

The Petitioner therefore completed four full school years as a certificated teacher approximately mid-way through the 2015-2016 school year.[5]  At that time his three most recent evaluations were minimally effective (June 2015), effective (June 2013), and expunged (June 2012).  Even if the expunged evaluation is counted as an effective or highly effective evaluation^[6], the Petitioner had not received three effective or highly effective evaluations in a row.  Only if the Petitioner’s 2014-2015 evaluation is changed to effective would the Petitioner have completed his probationary period and obtained tenure during the 2015-2016 school year.

Because the Petitioner continued to receive less than effective ratings for the remainder of his employment, the Petitioner would have only obtained tenure if the Petitioner’s evaluations are changed to effective or highly effective for three years in a row.  If the Petitioner’s June 2015 minimally effective evaluation is not changed to effective or highly effective, the Petitioner’s June 2016, 2017, and 2017 ineffective evaluations would all need to be changed to effective or highly effective to allow him to obtain tenure (in June of 2018).  Because of the June 2015 minimally effective evaluation, it was not possible for the Petitioner to earn tenure prior to June of 2018.

The Respondent argues that a teacher’s probationary period is either four or five years (depending on when the teacher was hired and if they are consistently highly effective) and cannot be extended.  The Respondent’s position is that once a teacher receives a less-than-effective rating during one of the seminal three year-end evaluations that the teacher can never complete their probationary period with that district.  A hypothetical teacher who receives a minimally effective evaluation in year three of their probationary period and highly effective ratings for every subsequent evaluation would never obtain tenure under the Respondent’s proposed interpretation of the statute since at the end of the teacher’s four or five year probationary period his or her last three evaluations would not have been effective.  The notion that an otherwise highly-effective teacher who had a difficult third year of teaching could never achieve tenure is contrary to the intended purpose of the Teacher Tenure Act. 

MCL 38.83b(2) notes in relevant part, “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 … and has completed at least 5 full school years of employment in a probationary period.”  Emphasis added.  The legislature, in enacting MCL 38.83b(2) clearly intended that a probationary period could extend beyond five full school years.  To hold that a probationary period can only last either four or five years renders the words “at least” in MCL 38.83b(2) null.  The primary task in construing a statute is to discern and give effect to the intent of the Legislature which is done by giving effect to every word, phrase, and clause in the statute.  Shinholster v Annapolis Hosp, 471 Mich 540 (2004).  It is important to avoid a construction that would render any part of a statute surplusage or nugatory.  Bageris v Brandon Twp, 264 Mich App 156 (2004).  “A court may read nothing into an unambiguous statute that is not within the manifest intent of the Legislature as derived from the words of the statute itself.’  Roberts (Lisa) v Mecosta Co Gen Hosp, 466 Mich 57 (2002).

The Teacher Tenure Commission, in an April 23, 2018 denial of Request for Declaratory Ruling (18-3) dealt with just this issue and found that “the Act provides that the probationary period must be “at least” five years; it can be longer than five years if the evaluation requirement is not satisfied.”^[7]  The Teacher Tenure Commission’s written statement of the legal reasons for the declaratory ruling denial^[8] and rationale for not issuing a declaratory ruling (that the statute directly addresses the issue) is persuasive and is adopted.

Finally, the Teachers’ Tenure Act must be read considering the principle of fundamental fairness.  Baldwin v South Lyon Community Schools Board of Education (06-17), citing Dimitruck v Utica Community Schools (74-3).  To adopt the Respondent’s position that a teacher who receives an ineffective or minimally effective evaluation during his/her third, fourth, or fifth year of teaching can never obtain tenure would be fundamentally unfair as well as contrary to the statute.  The Respondent’s interpretation that a teacher’s probationary period cannot be extended is rejected.

A teacher obtains tenured status upon completion of the probationary period which consists of two distinct parts 1) at least four or five years and 2) completion of three consecutive effective or highly effective year end evaluations.  Whether it takes four^[9], five^[10], six^[11], seven^[12], or more^[13] years to complete a probationary period is irrelevant to the determination of if a teacher can obtain tenure.

The Teacher Tenure Commission lacks jurisdiction because the Petitioner did not complete three consecutive effective evaluations prior to his termination.

At no time did the Petitioner ever obtain three consecutive effective or highly effective evaluations.  This is undisputed.  The Petitioner disputes the accuracy of those evaluations (because he argues that he is an effective teacher and should have been rated as such).  However, because he never received three consecutive effective evaluations, he never obtained tenure which is required to appeal to the Teacher Tenure Commission.

Pursuant to MCL 38.83, “A teacher who is in a probationary period may be dismissed from his or her employment by the controlling board at any time.”  Because the Petitioner was in his probationary period, he has no right to appeal to the Teacher Tenure Commission.

The only exception to the requirement that a teacher have tenure is if a teacher is disputing the timeliness of notification of contract renewal related to tenure status.  “If a teacher claims tenure as a result of satisfactory completion of probation, the determination of timeliness or legal effect of a notice of unsatisfactory work is always within the jurisdiction of the tenure commission.”  Lipka v. Brown City Schools, 403 Mich. 554 (1978).  There is no dispute here, however, that the Petitioner did receive timely notice of his ineffective evaluations each year.

A probationary period is provided in the Act and distinguished from tenure to afford a trial period during which a controlling board may make a subjective determination of whether a certain teacher satisfies that district's particular needs and policy. We should not require that such a procedure meet an objective standard applicable to all school districts.

The tenure commission may not assay a board's reason for concluding the work unsatisfactory. The act is followed when the notice of unsatisfactory work is timely given whether based on good, bad or unstated reasons. If timely notice of unsatisfactory work is given, no entitlement to tenure arises under the act, and therefore the Due Process Clause does not require a hearing.

Lipka v. Brown City Schools, 403 Mich. 554 (1978).

Lipka held that the teacher tenure commission lacks jurisdiction to review a probationary teacher’s evaluations, even if the result of that review, if permitted, would grant the teacher tenure status.

Lipka, although decided more than forty years ago now, remains good law and has been cited recently by Administrative Law Judges and the Teacher Tenure Commission to dismiss the appeals of non-tenured teachers.  This includes cases that deal with the 2011 amendments to the act in question (MCL 38.83).  Laframboise v Roscommon Area Public Schools (12-39); Benson v Board of Education of the Westwood Community School District (14-17); Guthre v Woodhaven-Brownstown School District (15-11); Knight v Detroit Public Schools (15-21).^[14]

Because the Teacher Tenure Commission lacks jurisdiction, it is unnecessary (and indeed improper) to address the merits of the Petitioner’s case: i.e. his (in)effectiveness as a teacher and the accuracy of his year-end evaluations.

CONCLUSION

Because the Petitioner was in his probationary period, did not obtain tenure and is not claiming the one limited exception to the tenure jurisdictional requirement (untimely notification), the Teacher Tenure Commission lacks jurisdiction to hear the Petitioner’s case and the appeal must be dismissed.

Rule 25(1)(a) allows for a motion for summary disposition if “the appellant has failed to state a claim upon which relief can be granted.”  Rule 25(1)(d) allows for a motion for summary disposition if the “commission lacks jurisdiction of the subject matter.”  Because the Petitioner/Appellant is not a tenured teacher within the Respondent/ Appellee’s district at the time of his termination, no relief can be granted to the Petitioner/Appellant, a non-tenured teacher, and the TTC lacks jurisdiction over this matter.  Therefore this matter must be dismissed pursuant to Rules 25(1)(a) and (d).

ORDER

NOW THEREFORE, IT IS ORDERED that Respondent/Appellee’s motion for summary judgement is granted and Petitioner/Appellant’s claims of appeal are dismissed.

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.  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)].

The deadline for filing exceptions is Friday, March 1, 2019.  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, 608 West Allegan Street, P.O. Box 30008, Lansing, Michigan 48909.  Exceptions can be electronically filed with the Commission at MDE-AdminLaw@michigan.gov. 

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.

Please note that this Decision and Order may be edited prior to publication on the Michigan Department of Education web site.  Readers are requested to promptly notify the Office of Administrative Law of any typographical or other non-substantive errors so that corrections can be made prior to publication.

PROOF OF SERVICE

I hereby state, to the best of my knowledge, information and belief, that a copy of the foregoing document was served upon all parties and/or attorneys of record in this matter by Inter-Departmental mail to those parties employed by the State of Michigan and by UPS/Next Day Air, facsimile, and/or by mailing same to them via first class mail and/or certified mail, return receipt requested, at their respective addresses as disclosed below this 8^th day of February, 2019.

[1] Articles 4, 5, and 6 of the Teacher Tenure Act are MCL 38.101 through 38.121 inclusive.

[2] The Petitioner’s 2011-2012 teacher evaluation was expunged (Exhibit 5).

[3] The Petitioner’s 2011-2012 teacher evaluation was expunged (Exhibit 5).

[4] Whether MCL 38.81(2) applies makes no difference in the outcome of this case since the Petitioner never received three effective ratings in a row and so was never tenured at any point either four or five years into his employment with the Respondent district.

[5] 0.74 years (10-11) + 0.79 years (11-12) +0.98 years (13-14) + 1.0 year (14-15) + 0.51 years (fall 2015) = 4.0 years approximately half way through the 2015-2016 school year.

[6] Because the Petitioner’s 2011-2012 evaluation makes no difference to the outcome, it is unnecessary to determine how to treat an expunged evaluation in determining the end of the Petitioner’s probationary period.

[7] Pursuant to Rule 38.135(8), “The commission shall make available a copy of a declaratory ruling, the grant of a request for declaratory ruling, or a denial of a request for a declaratory ruling upon request.”

[8] Rule 38.135(5) requires a “concise written statement of the legal or factual reasons for denial” of a request for declaratory ruling.

[9] A teacher hired prior to the 2011 Teacher Tenure Act amendments receiving effective or highly effective evaluations and any teacher receiving four initial highly effective evaluations would be tenured after four years.

[10] A teacher hired after the 2011 Teacher Tenure Act amendments receiving effective or highly effective evaluations during his/her last three years (but not receiving four initial highly effective evaluations) would be tenured after five years.

[11] A teacher receiving a minimally effective or ineffective rating in his/her third year and effective or highly effective ratings in years four, five, and six would be tenured after six years.

[12] A teacher receiving a minimally effective or ineffective rating in his/her fourth year and effective or highly effective ratings in years five, six, and seven would be tenured after seven years.

[13] A teacher who is unable to obtain three consecutive effective or highly effective year-end evaluations could be on probation indefinitely.  A hypothetical teacher who repeats the pattern of ineffective, effective, effective evaluations every three years for 30 years would still be on probation until earning an effective evaluation in his/her 31^st year (thereby earning effective evaluations in years 29, 30, and 31) and achieving tenure following his/her 31^st year of teaching.

[14] Only Laframboise was heard by the Teacher Tenure Commission and therefore has precedential effect.  The remaining Administrative Law Judge decided cases, however, are persuasive.