STATE OF MICHIGAN
STATE TENURE COMMISSION
Sandra Lefebvre,
Appellant
v Docket No. 18-1
Norway-Vulcan Area Schools,
Appellee
Attorney for Appellant: Fillipe S. Iorio
Kalniz, Iorio & Reardon Co., L.P.A.
4981 Cascade Road, S.E.
Grand Rapids, MI 49546
Attorney for Appellee: Martha J. Marcero
Thrun Law Firm, P.C.
2900 West Road
Suite 400
P.O. Box 2575
East Lansing, MI 48826-2575
DECISION AND ORDER ON EXCEPTIONS
On February 26, 2018, appellant Sandra Lefebvre, a tenured teacher, filed a claim of appeal challenging the February 6, 2018 decision of appellee Norway-Vulcan Area Schools to proceed on tenure charges against her and to discharge her. There was a hearing on the claim of appeal on May 14, May 15, and May 16, 2018, before Administrative Law Judge Kandra Robbins (ALJ).
On July 23, 2018, the ALJ issued a preliminary decision and order (PDO), finding that appellee proved the tenure charges and that the decision to discharge appellant was not arbitrary or capricious. Appellant filed eight exceptions to the PDO and a supporting brief on August 14, 2018. Appellee filed a brief in support of the PDO on August 24, 2018.
DISCUSSION
Appellant, who has been an employee of Norway-Vulcan Area Schools since 1997, holds a Michigan teaching certificate with endorsements in all subjects (grades 7 and 8), mathematics and economics (grades 6 to 12), and school counseling. (Tr, p 539). During the 2017-2018 school year, her assignment consisted of three periods of classroom teaching at Norway High School, one planning period, and three periods of school counseling at the high school. (Tr, pp 283-284, 541).
All of the approximately 600 Norway-Vulcan pupils are housed at the same location. Appellant was the only school counselor employed by the district during the 2017-2018 school year. The district employs school social worker Susie Neuens at the K-8 level. (Tr, pp 12, 58, 349, 542-543).
In her first exception, appellant argues that the ALJ erred in finding that appellee proved that she failed to comply with her obligations under section 3 of 1975 PA 238, the Child Protection Law, MCL 722.621 to 722.638, related to her contact with Norway High School junior CB[1] in November 2017.
Section 3 of the Child Protection Law, MCL 722.623, provides in part as follows.
(1) An individual is required to report under this act as follows:
(a) A. . .school counselor or teacher. . .who has reasonable cause to suspect child abuse[[2]] or child neglect[[3]] shall make an immediate report to centralized intake[[4]] by telephone, or, if available, through the online reporting system[[5]], of the suspected child abuse or child neglect. Within 72 hours after making an oral report by telephone to centralized intake, the reporting person shall file a written report as required in this act. If the immediate report has been made using the online reporting system and that report includes the information required in a written report under [MCL 722.623(2)], that report is considered a written report for the purposes of this section and no additional written report is required. If the reporting person is a member of the staff of a
. . .school, the reporting person shall notify the person in charge of the. . .school of his or her finding and that the report has been made, and shall make a copy of the written or electronic report available to the person in charge. A notification to the person in charge of a
. . .school does not relieve the member of the staff of the
. . .school of the obligation of reporting to the [Department of Health and Human Services] as required by this section. One report from a. . .school is adequate to meet the reporting requirement.[6]
CB has several brothers who were enrolled in Norway-Vulcan elementary and middle schools in 2017-2018. (Tr, pp 24, 61-62, 72, 165-166). It is not disputed that, in November 2017, she reported to appellant that her mother’s boyfriend had hit one of her brothers. Nor is it disputed that the reported conduct would constitute child abuse as defined in the Child Protection Law. The issue is whether appellant complied with the statute’s requirement that she immediately report suspected child abuse. Appellant argues that CB disclosed the abuse to her on November 13, 2017, and that, when she reported the abuse to the Department of Health and Human Services (DHHS) on November 15, 2017, she satisfied the statutory requirement of immediate reporting. The charges were based on appellee’s determination that appellant learned about the abuse from CB on November 6, 7, or 8, 2017. Appellant does not argue that, if she learned about the abuse during the period of November 6-8, her November 15 report satisfied the statutory requirement of immediate reporting.
CB was absent from school on Thursday, November 9 and Friday, November 10, 2017. (Tr, pp 203-204, 235; Exhibit R-H).[7] The ALJ found that CB disclosed the abuse to appellant on Monday, November 6; Tuesday, November 7; or Wednesday, November 8, 2017. In support of that finding, she cited the testimony of Norway High School Principal Joseph Tinti, Norway-Vulcan K-8 Principal Rico Meneghini, and Ms. Neuens.
Mr. Tinti testified that appellant told him during the week of November 6 that she had met with CB and that CB had disclosed conduct that appellant was reporting as suspected child abuse to DHHS. He described a conversation in the school cafeteria with Ms. Neuens and Mr. Meneghini during which he said that appellant had to report a disclosure by CB to DHHS. He told this to Ms. Neuens because she had worked with CB and her entire family. (Tr, pp 227-229, 231, 297-303). Ms. Neuens came to his office on Wednesday of the following week, November 15, upset that he had told her the previous week that appellant had filed a child abuse report but that appellant had not done so. Later that morning, Mr. Tinti met with appellant and said to her, “You told me you were going to submit this.” Admitting that she had talked with CB the previous week, appellant responded, “Yes, Joe, I can get it. I’m sorry; I screwed up.” Appellant admitted to him that she should have filed the report immediately. (Tr, pp 229, 231, 239, 303-304). Mr. Tinti recalled that a weekend intervened between his initial discussion with appellant about her meeting with CB and November 15. (Tr, p 232).
Mr. Meneghini testified that the issue of reporting child abuse in CB’s family was brought to his attention by Mr. Tinti in the school cafeteria on November 6, 7, or 8. In the course of his conversation with Mr. Tinti and Ms. Neuens at that time, he learned that CB had told appellant about abuse in her home. He was certain that the conversation did not take place on Monday, November 13 (the date appellant claimed to have first met with CB) because he was out of town for training on November 14 and 15 and, when he returned on November 16, Ms. Neuens was upset that it had taken appellant more than a week to report CB’s disclosure to DHHS. (Tr, pp 166-169, 195-198, 204-205). He testified that a weekend intervened between the cafeteria conversation and November 15. (Tr, p 214).
Ms. Neuens testified about the lunchroom conversation, stating that she, Mr. Tinti, and Mr. Meneghini were discussing the behavior of CB’s brothers when Mr. Tinti said that appellant had reported CB’s disclosure to DHHS that week. Ms. Neuens filed her own report with DHHS immediately after talking with CB on November 15. She was certain that the conversation in the cafeteria occurred the week of November 6-10.
Q: Did you speak to Ms. Lefebvre about this?
A: I did
Q: And when did you speak to her?
A: After I called in the report.
Q: And what time of the day would that have been?
A: That might have been around 9:30.
Q: And what did you relate to her?
A: I mentioned to her that the student come [sic] to see me again, that the abuse is still continuing to go on in the house. I asked if she reported it. She said no. I said well, I just called it in and reported it, and I mentioned that a report was filled out last week from our high school guidance counselor about the same situation. That’s when she told me she didn’t do it.
…
Q: And why did you believe that a report had been made the previous week?
A: The previous week I was in the lunchroom talking with Mr. Tinti and Mr. Meneghini, the principals, and we share this family and there’s been a lot—like I said, a lot of dynamics going on with the family. . .
Q: And what discussion did you have and when did that discussion take place?
A: This was the week earlier, this discussion in the lunchroom when we were talking about boy, these boys are just—their behavior, something is going on in the house. We’re concerned about them and—
Q: Which boys?
A: CB’s brothers. . .There are six kids in the family and we work with them closely, but we were discussing something’s going on. It’s just this isn’t like them, and Mr. Tinti did share with us that [appellant] did fill out a 3200[[8]] this week, and that would have been November 6th through the 10th.
…
Q: Okay. And this conversation took place, do you know which day of the week on the week of November 6th?
A: No. Wednesday or Thursday, probably.
Q: So the week prior—one week prior to your November 15th discussion?
A: Yes, yes.
Q: And do you believe that a report had already been made?
A: I did. He said it was made, so I believed that.
Q: When you spoke to Ms. Lefebvre on the 15th, what actions did she say she would be taking?
A: After I explained to her I called it in again and was concerned, and also stated downstate that there was one last week from our high school guidance counselor and, you know, she explained that she forgot. She said she would do it.
…
Q: Did she indicate that CB had not met with her the week before?
A: No.
Q: Did she say anything about meeting with her the week before?
A: She did, and she was questioning do I think something would be going on in that home, and I’m not sure if anything’s going on, but when someone comes to you and says there’s physical things going on in the home, you turn it in, you cover your butt, especially with everything that was going on with that family at that time.
…
Q: What was Ms. Lefebvre’s reaction when you spoke to her with regard to the duty to report?
A: I think upset, maybe because I was upset. I just—I was—I was mad. I was upset that it wasn’t done, and I kind of put it out there when I called downstate and said our high school already did it, and then finding out they didn’t do it. (Tr, pp 21-22, 24-26, 30).
We are persuaded of no error in the ALJ’s reliance on this evidence in support of her finding that CB reported child abuse in her home to appellant on November 6, 7, or 8. We also agree with the ALJ that appellant’s own testimony that she first met with CB on Monday, November 13 was not credible. For example, appellant stated during appellee’s investigation of her conduct that she did not believe that a weekend intervened between her meeting with CB and her November 15 reporting of the abuse to DHHS because she would have worried about the child over the weekend. (Tr, pp 618-619; Exhibit R-L). At the hearing, she testified that she delayed reporting because she questioned CB’s motives and therefore did not have a reasonable suspicion of child abuse. She also testified that she thought CB was exaggerating. (Tr, pp 557, 619). As the ALJ noted, if appellant did not believe CB, there would have been no reason to worry about CB’s brother over the weekend. (PDO, p 9).
In matters of witness credibility, we give appropriate deference to the findings of the ALJ, an impartial hearing examiner who saw the witnesses and heard their testimony. Hunt-Hudon v Board of Education of the Martin Area Schools (09-24). According such deference in this case, we find no error in the ALJ’s determination that CB disclosed the abuse of her brother to appellant on November 6, 7, or 8. Appellant’s November 15 report of the abuse to DHHS was not “immediate” under any reasonable interpretation of MCL 722.623(1). For this reason, we find that appellee proved the charges related to appellant’s handling of CB’s disclosure of child abuse, and we deny appellant’s first exception.[9]
In her second exception, appellant argues that the ALJ erred in finding that appellee proved that, with respect to seventh grade pupil RV, she failed to fulfill her professional obligations. The relevant facts are as follows.
At 9:05 a.m. on December 6, 2017, Angela Jungwirth, a K-12 school counselor employed by North Dickinson County School, emailed the following message to Mr. Tinti and appellant. (Tr, pp 111-116, 239, 312, 568, 608).
I had a middle school student come to see me today who is friends with one of your students, [RV].[10] She told me she is worried about her because she is cutting herself and is depressed. I asked my student if [RV] has cut herself recently and she said that she had two nights ago. She said she even sent her a picture of it (I did not ask to see the picture). She told me the cuts are on her things [sic] (not her wrists or arms). I wanted to give both of you a head’s up so someone can talk to [RV].
I will add, the student who came to talk to me can be a bit dramatic, so I can’t say for sure whether there is something majorly wrong or not, but I wanted to tell you both so you can at least look into it and check in on the student. Please just confirm that you received the e-mail so I know! (Exhibits P-5, P-11).
When she received this email, appellant had never spoken with RV or her parents. (Tr, p 567). She replied to the email at 9:15 a.m. as follows, copying Mr. Tinti. (Tr, pp 568-569).
Thanks so much for the information Angie! Since [RV] is in the Middle School, I will forward this to Susie Neuens, our middle school social worker. (Exhibit P-11).
At 9:17 a.m., appellant forwarded Ms. Jungwirth’s email to Ms. Neuens. (Tr, pp 89-90, 569). Appellant’s email message to Ms. Neuens at that time was the following.
Hey Susie,
I got this today from the counselor at ND. Since [RV] is 8th [sic] grade, it seemed better for you to handle it. Please let me know how she is. . .thanks! (Exhibit P-11).
When he received Ms. Jungwirth’s email and appellant’s reply to Ms. Jungwirth, Mr. Tinti texted appellant, informing her that Ms. Neuens was not at school on December 6 and asking her if she could meet with RV. Although appellant did not read the text that day, she spoke with Mr. Tinti after lunch, when he told her of Ms. Neuens’ absence. He offered to meet with RV and to call her parents, whom he knew.[11] Appellant told him that she would meet with RV. When he saw appellant later that day, she told him that she had met with RV. (Tr, pp 240-241, 313-317, 319, 570-572, 610, 617).
Appellant met with RV in her school office for about 20-25 minutes on December 6. (Tr, pp 571, 613). Appellant described the meeting as follows.
I first informed her why I had asked [sic] to come down, that, you know, there was some concern about cutting. I asked her what was going on with her. She rolled her eyes at me and, “Yeah, I cut my knees last week.” And, you know, I pressed her to find out what—you know, what was happening in her life, what was—as far as family, friends, schools. She insisted that this was—you know, it was stupid, “I don’t know what the big deal is.”
. . .I pressed her as much as I could and then said, you know, “I think maybe Ms. Neuens would be better to talk with you and we’ll follow up with Ms. Neuens tomorrow.” (Tr, pp 571-572).
Appellant did not ask to see the cuts that RV admitted inflicting on herself; nor did she ask RV what she had used to cut herself. (Tr, pp 574, 608-609, 614). Appellant left a note on her office desk reminding her to contact Ms. Neuens in the morning. (Tr, p 618).
Ms. Neuens, who knew RV and her parents, did not read appellant’s December 6, 9:17 a.m. email until that evening, when she initiated the following text conversation with appellant. (Tr, pp 34-40, 88, 91, 572-573).
7:45 p.m. I wasn’t in school today and just going through emails. Did you have a chance to talk with [RV] today?
7:48 p.m. Yes—I’m sorry, I meant to let you know that [Mr. Tinti] told me you were out. I did talk to her and she said that she was fine. We can talk tomorrow but she seemed good to me.
7:53 p.m. Did she say she was cutting?
7:57 p.m. She did. . .she said she cut herself across her knees last week. I may be completely wrong, but it seemed like it was more about just trying it and not so much about being self-destructive. . .I hope I assessed that right. Maybe you can get more out of her. I told her you would follow up. She did say things were good at home, with friends and school.
8:02 and 8:05 p.m.
Did you call her parents? We have to call parents when it comes to this kind of stuff and she did admit to it. I worry because her mom may be very upset if she didn’t get a call and admitted to it.
8:05 p.m. No. .I should have after school. I had scheduled appointments most of the day with seniors, and the day was crazy. Unless you’re going to meet with her and call them tomorrow, I can call in the morning.
8:06 p.m. I will do it in the morning.
8:07 p.m. I’ll come see you first thing. . .will you be busy with medication at 8?[[12]]
[unknown time]
Come down to elementary around 8:30. (Exhibits P-5, R-G).
Appellant met with Ms. Neuens at school at 8:30 a.m. on December 7. Ms. Neuens described herself as “very visibly upset” at that time because RV’s parents had not been contacted. She told appellant that she would speak with RV and call her parents. (Tr, pp 54, 95-96, 577). According to Ms. Neuens, she would not contact a parent about a pupil’s self-harm without first talking with the pupil. (Tr, p 107).
When Ms. Neuens met with RV that day, RV admitted cutting herself across her legs. According to Ms. Neuens, RV “talked about things rough with friends and she was depressed.” Ms. Neuens told RV that she was going to contact her parents. Immediately after RV returned to class, Ms. Neuens telephoned RV’s mother at work. RV’s mother was very upset and asked for the names of outside counselors, which Ms. Neuens gave to her. (Tr, pp 40, 42, 103). RV’s father was at the school later that day and spoke with Ms. Neuens and appellant. (Tr, pp 40, 42, 44, 103, 242, 321, 578).
Appellant was charged with not contacting RV’s parents to inform them that RV had been physically harming herself. In support of her finding that appellee proved this charge, the ALJ cited No. 3213 of appellee’s Board Bylaws and Policies, which requires professional staff members to “maintain a standard of care for supervision, control, and protection of students commensurate with assigned duties and responsibilities” (Exhibit R-B). (PDO, p 12). Among other bylaws and policies, the charges also cited No. 3210 (Staff Ethics), which provides in part as follows.
An effective educational program requires the services of men and women of integrity, high ideals, and human understanding. To maintain and promote these essentials, the Board of Education expects all professional staff members to maintain high standards in their working relationships, and in the performances of their professional duties, to:
…
C. exercise due care to protect the mental and physical safety of students. . .;
D. seek and apply the knowledge and skills appropriate to assigned responsibilities. . . (Exhibit R-B).
Norway-Vulcan Area Schools Superintendent Louis Steigerwald and Mr. Tinti testified about the importance of immediately contacting parents when a pupil admits to self-cutting. In Mr. Steigerwald’s view, appellant’s text message to Ms. Neuens that RV was “about just trying it and not so much about being self-destructive” could not possibly make sense. (Tr, p 378). His reaction to reading that message was:
I want to cry. The child is admitting to harming herself and there’s not an immediate phone call home. I don’t understand. . .She’s cutting herself. The child doesn’t have—probably not thinking oh, should I avoid this artery or that vein. She’s cutting herself. I’m sorry. I get upset. The child is in danger. She actively says I cut myself across the knees last week. A friend has reported that she’s concerned because she’s cutting herself. Yes, very bad things could have happened. . .When these sorts of things happen, immediately the brakes go on in whatever you’re doing at that moment. I’ve been in this situation. You know that you’ve got to make sure that this student is safe. . .The child is in effect abusing themselves and you know that you must get mom and dad, or any other family situation, parents involved. That is clear. (Tr, pp 379, 387-388).
Mr. Tinti testified that he notifies parents immediately if he learns that a pupil is engaging in self-harm “[b]ecause that child could go home and self-harm or leave school and us not catch it for an hour.” (Tr, p 245).
Ms. Neuens described seventh grade girls as: “Very emotional. They’re on highs, they’re on lows. They get stressed over certain things. They’re kind of dabbling in liking boys. Social media is involved. It’s a roller coaster ride.” She considers self-cutting a cry for help and she testified that it is impossible for her to evaluate “hour to hour” whether a seventh grade girl who has intentionally cut herself will engage in more dangerous, risk-taking behavior. It is therefore imperative to notify parents as soon as possible whenever a pupil admits to hurting himself or herself. (Tr, pp 39, 45-46). Other professionals similarly testified about the importance of immediate notification to parents about a pupil’s self-harming behavior. (Tr, pp 145-148, 156, 174, 205-206). Appellant testified that, although she realized that RV’s self-cutting was not “typical behavior,” she did not contact RV’s parents because, notwithstanding that she had not yet talked with Ms. Neuens about RV, she determined that Ms. Neuens would be following up with RV the next day. (Tr, pp 610-612).
Based on this evidence, we find that appellee proved the charge that appellant violated her professional responsibilities as they related to RV. Appellant admitted to Ms. Neuens that she should have contacted RV’s parents on December 6. There was ample evidence that she was professionally obligated to do so in order to protect RV and we are not persuaded that she had a legitimate excuse for not doing so. Contrary to appellant’s argument, the absence of a specific board policy requiring immediate notification of parents when a teacher or school counselor learns that a pupil has been cutting herself is not fatal to this charge. A school district is not required to have a specific written policy to cover all conduct of an educator that might warrant discharge or demotion. Phillips v Board of Education of the Alpena Public Schools (91-7). In this case, appellee acted reasonably in charging that appellant’s handling of the matter involving RV violated general policies that address pupil safety. For these reasons, we deny appellant’s second exception.
Appellant’s third exception challenges the ALJ’s determination that the discharge decision was not arbitrary or capricious. Related to this exception is her seventh exception, in which she argues that the ALJ misapplied the holding in Cona v Avondale School District (11-61), aff’d 303 Mich App 123 (2013), lv den 497 Mich 887 (2014), as it relates to the level of discipline.
According to appellant, the discharge decision was based on whim or caprice in that appellee failed to consider the totality of the circumstances and failed to consider and appreciate the significance of evidence. In particular, appellant argues that appellee did not consider that appellant “immediately told Ms. Neuens about CB’s report of abuse” on November 13; that appellant filed a report with DHHS on November 15, and that DHHS conducted an investigation based on her report. Appellant further argues that appellee “arbitrarily discount[ed]” the facts that appellant immediately responded to the email regarding RV, met with RV, emailed and spoke with Ms. Neuens about RV, and met with RV’s father; that appellee ignored that Mr. Steigerwald was biased against her related to an email she sent to him and others on November 30;[13] that appellee ignored evidence that she had received no training relating to pupil self-harm, in violation of Board Policy No. 5350 (Student Suicide) (Exhibit P-13); that her actions were not intentional; and that she had a long and distinguished career in the district. She further argues that the controlling board was prevented from reviewing the DHHS disposition letter before voting to proceed on the charges. (Brief in support of exceptions, pp 35-36).[14]
Based on careful review of the record, we are not persuaded by appellant’s arguments in support of her third exception. We agree with the ALJ that Mr. Steigerwald’s preparation of the tenure charges and the controlling board’s decision to proceed on those charges were based on consideration of the facts surrounding the CB and RV incidents. (PDO, pp 13-14). We credit Mr. Steigerwald’s denial that the November 30 incident was a factor in his decision. (Tr, p 444).[15] As discussed above, we agree with the ALJ that appellee proved that CB’s disclosure to appellant occurred on November 6, 7, or 8. We therefore reject appellant’s claim that she immediately told Ms. Neuens about the disclosure during a November 13 conversation. Further, the facts surrounding appellant’s interaction with RV are largely undisputed, and, regarding CB, there is no dispute that appellant filed a report with DHHS on November 15 and that DHHS conducted an investigation. A union representative spoke on appellant’s behalf at the February 6, 2018 meeting of the controlling board. Following that presentation, the board offered appellant an opportunity to speak on her own behalf but she declined to do so. (Tr, pp 536, 615).
We are not persuaded by appellant’s complaint that she was not adequately trained to handle cases of pupils’ self-harming behavior. The Teachers’ Tenure Act does not obligate a controlling board to train educators how to perform the basic functions of their assignments. See Abraham v Board of Education for the Detroit Public Schools (94-6) (school board is not required to teach a teacher how to teach).
In support of her seventh exception, appellant cites Bethke v Godwin Heights Public Schools (15-29), where the controlling board’s decision was to discharge the teacher, the ALJ reduced the discipline to a two-week suspension, and this Commission found that a one-semester suspension was appropriate. Rejecting the level of discipline imposed by the controlling board, this Commission found, among other things, that the investigation of the incident that gave rise to the tenure charges was inadequate; that the superintendent, who drafted the charges, and the controlling board did not have all relevant information; and that the superintendent did not fully understand the policy that the teacher was alleged to have violated. We find no such deficiencies in this case. There is no evidence that the investigation of the CB and RV incidents was inadequate, that Mr. Steigerwald overlooked relevant information when he recommended discharge, or that the controlling board lacked relevant information.
Mr. Steigerwald described the trust that he must have in a school counselor.
You must have an absolute level of trust. Trust must—goes with that position. Here, as we see, children are revealing intimate details about their lives. They’re trusting the adults to do the right thing. Again, it does involve a degree of confidentiality, and so I and the other administrators must be able to trust the people in those positions to do the right thing when children are in danger. (Tr, p 389).
He testified that he no longer has the required level of trust in appellant. (Tr, p 390). Similarly, Mr. Tinti and Mr. Meneghini no longer trust that appellant will perform her professional duties appropriately in matters involving child safety. (Tr, pp 181-182, 269, 345). This loss of trust is reasonably based on the evidence and provides significant support for the discharge decision.
For all these reasons, we do not agree with appellant’s claim that the discharge decision was arbitrary or capricious within the meaning of Cona, supra, and we deny appellant’s third and seventh exceptions.
In her fourth exception, appellant argues that the ALJ misinterpreted and misapplied the Child Protection Law. In support of this argument, she cites Groat v Coulston, an unpublished decision of the Michigan Court of Appeals (Docket No. 196206, issued October 10, 1997) that is not precedentially binding (MCR 7. 215(C)(1)) and that, in any event, involved a section of the Child Protection Law (MCL 722.625) that is not relevant in the instant case.
In further support of this exception, appellant argues that Manders v Board of Education of the Napoleon Community Schools (06-1), lv den unpublished orders of the Court of Appeals, entered December 27, 2007 (Docket Nos. 277718 and 277728), is distinguishable. In that case, this Commission upheld the discharge of a school counselor who failed to report to DHHS that a student had had a sexual relationship with a principal. Ms. Manders acknowledged that she had a reasonable suspicion of abuse and that she should have reported it, but she claimed that she did not make a report because the victim did not want her to do so. We agree with appellant that the instant facts differ in some respects from those in Manders. However, the decision’s recognition that the failure to report child abuse is serious misconduct applies in this case where the issue is whether a report of child abuse was made immediately as required by the Child Protection Law.
In further support of her claim that the ALJ misinterpreted and misapplied the Child Protection Law, appellant claims that her failure to make an immediate report to DHHS was due to her “lack of experience in making reports” and to her questioning of why CB disclosed the abuse to her. (Brief in support of exceptions, p 38). We agree with the ALJ that these arguments are unavailing. Appellee reasonably expected appellant to be fully cognizant of the professional responsibilities of a school counselor; there is no exception to the mandatory reporting requirements of the Child Protection Law based on alleged lack of experience. In addition, we are not persuaded that appellant had reasonable doubts about CB’s allegation of abuse that would justify her failure to make an immediate report. In short, we find no support for appellant’s argument that the ALJ misinterpreted or misapplied the Child Protection Law. For this reason, we deny appellant’s fourth exception.
Appellant’s fifth exception challenges the ALJ’s finding that appellant did not prove disparate treatment. An educator who claims disparate treatment has the burden to prove both that the conduct of another educator employed by the school district was similar and that, taking all relevant factors into consideration, there was no reasonable basis for the district to treat the other educator differently. Whitley v Board of Education of the Cadillac Area Public Schools (13-41). According to appellant, there was no reasonable basis for appellee to discipline her while at the same time failing to discipline either Mr. Tinti or Ms. Neuens for their conduct related to CB and RV.
The ALJ expressly rejected the disparate treatment claim as it related to RV. (PDO, pp 12-13). We are persuaded of no error in that ruling. Neither Mr. Tinti nor Ms. Neuens talked with RV on December 6, 2017; Mr. Tinti asked appellant to handle the matter but offered to speak with RV and RV’s parents himself;[16] and appellant declined his offer and assured him that she would meet with RV. As the professional who met with RV on December 6, it was appellant who should have contacted RV’s parents on that day. The fact that Ms. Neuens immediately contacted RV’s mother after meeting with RV on December 7 distinguishes her conduct from that of appellant to a sufficient degree to defeat a claim of disparate treatment.
In addition, the record reasonably supports a finding that neither Mr. Tinti nor Ms. Neuens was similarly situated to appellant with respect to CB. Mr. Tinti never spoke with CB. He reasonably relied on appellant to respond appropriately to CB’s disclosure during the week of November 6, 2017. Ms. Neuens immediately reported to DHHS when she spoke with CB on November 15.
It is significant that appellant’s failure to report immediately to DHHS was a violation of the Child Protection Law. Even assuming that, as appellant argues, Mr. Tinti failed to abide by administrative guideline No. 8462 (which sets forth procedures for staff members’ reporting of suspected child abuse and child neglect) (Exhibit R-B), such failure would not have constituted violation of a duty imposed by that statute. It is further significant that it was the fact of two unrelated incidents of appellant’s failure to adhere to professional standards related to pupil safety within approximately one month that led to the filing of tenure charges in this case.
For all of these reasons, we deny appellant’s fifth exception.
Sixth, appellant challenges the admission into evidence of hearsay statements by CB concerning when CB disclosed her mother’s boyfriend’s conduct to appellant. According to appellant, those statements “are the foundation of the ALJ’s finding that [appellant] should be discharged because her report [to DHHS] was not ‘immediate.’” (Brief in support of exceptions, p 43).
The admissibility of hearsay was discussed in Green v Reeths-Puffer Public Schools (16-13).
Hearsay is an out-of-court statement that is admitted for the truth of the matter asserted. Bowers v Hastings Area School System (11-54); MRE 801(c). If hearsay is the sole basis for a finding of fact, the finding must be disregarded. Branch v Detroit Board of Education, Region 2 (80-37). If a fact-finder’s reliance on hearsay is of no consequence or if competent evidence supports a finding, there is no error. Teller v Anchor Bay School District (95-18); Humes v Detroit Board of Education (94-24); Peters v Board of Education of Dearborn Heights School District No. 7 (78-20); Sprik v Grandville Public Schools (74-40-2-R) (Decision on appellant’s motion to strike, issued July 11, 1978). See also Mich Admin Code, R 38.172(5) (administrative law judge may admit and give probative effect to evidence of a type upon which reasonably prudent persons rely in the conduct of their affairs).
In this case, the ALJ found, “[b]ased on the totality of the testimony,” that CB told appellant about the abuse of her brother on either November 6, November 7, or November 8, 2017. (PDO, p 7). The ALJ explained, “I do not make this finding based on any hearsay statements from C.B. Rather, I make this finding based on the actions taken and testimony of Ms. Neuens, Mr. Tinti, and Mr. Meneghini.” (PDO, p 9). The ALJ further noted the absence of evidence supporting appellant’s contention that CB first told her about the abuse on Monday, November 13, 2017. She noted appellant’s conflicting, incredible testimony about why she did not report CB’s claim to DHHS immediately.
Based on careful review of the record and the PDO, we find no merit in appellant’s sixth exception. The ALJ cited ample credible, competent evidence in support of her finding about the timing of CB’s disclosure to appellant. This exception is denied.
In her eighth exception, appellant argues that the ALJ misapplied the Szopo[17] factors. (PDO, pp 14-15). We are not persuaded that this exception raises a material issue. The ALJ only considered the Szopo factors after finding that the decision to discharge appellant was not arbitrary or capricious. As held in Green, supra, it is error to examine the level of discipline in light of the Szopo factors after determining that a discharge decision was the result of deliberate, principled reasoning based on evidence and thus not arbitrary or capricious under MCL 38.101(1).
ORDER
For the foregoing reasons and based on the record, we order the following:
Appellant’s exceptions are denied.
Appellant is hereby discharged.
_______________________________
David Campbell, Chairperson
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R. Stephen Olsen, Secretary
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Nancy Danhof, Member
_______________________________
Patrick McKennon, Member
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Vacant, Member
Dated: October 9, 2018
[1] To protect their privacy, pupils are identified only by their initials.
[2] "Child abuse" includes nonaccidental harm or threatened harm to a child's health or welfare by a parent, a legal guardian, or any other person responsible for the child's health or welfare. MCL 722.622(g).
[3] “Child neglect” is defined in MCL 722.622(k).
[4] “Centralized intake” means the statewide centralized processing center of the Department of Health and Human Services (DHHS) for reports of suspected child abuse and child neglect. MCL 722.622(e).
[5] "Online reporting system" means the electronic system established by DHHS for individuals identified in MCL 722.623(1) to report suspected child abuse or child neglect. MCL 722.622(w).
[6] Criminal and civil liability for violation of the reporting requirements of the Child Protection Law is described in MCL 722.633.
[7] Appellant testified that CB told her she was absent on November 9 and 10. (Tr, p 554).
[8] Form 3200 is used to report suspected child abuse and suspected child neglect to DHHS.
[9] Because we find no error in the ALJ’s finding that CB told appellant about the abuse on November 6, 7, or 8, we do not address the issue of whether appellant’s November 15 report to DHHS would have satisfied the “immediate report” requirement of MCL 722.623(1)(a) if, as she claims, she had first spoken with CB about the abuse on November 13.
[10] The Norway-Vulcan pupil’s name is redacted in Exhibits P-5 and P-11 but it is not disputed that the email concerned RV.
[11] Appellant denied that Mr. Tinti said anything to her about contacting RV’s parents, including that he could contact them. (Tr, p 593).
[12] In addition to her school social worker responsibilities, Ms. Neuens was responsible for dispensing medications to all of the district’s pupils. (Tr, p 58).
[13] Appellant sent the email to Mr. Steigerwald, Mr. Tinti, and the members of the board of education, expressing her dissatisfaction about the timing of notice of a December 1, 2017 presentation to high school pupils and staff. (Tr, pp 423-430, 442-444; Exhibit P-7).
[14] In support of this exception, appellant also argues that she was disparately treated, a claim that we address in our consideration of her fifth exception.
[15] See also Bailey v Board of Education of the Detroit Public Schools (86-11) (even if charges are motivated by ill will, there is no harm actionable under the Teachers’ Tenure Act if the charges are proved).
[16] See footnote 11, supra.
[17] Szopo v Richmond Community Schools Board of Education (93-60).