IN THE MATTER OF:
Norway-Vulcan Area Schools,
ED Teacher Tenure
Issued and entered
this 23rd day of July, 2018
by: Kandra Robbins
Administrative Law Judge
PRELIMINARY DECISION AND ORDER
ADMINISTRATIVE LAW JUDGE
By letter dated January 19, 2018, Louis Steigerwald, Superintendent of Norway-Vulcan Area Schools, charged Petitioner Sandra Lefebvre, a tenured teacher serving as a guidance counselor, with failing to make a mandatory suspected child abuse report in violation of state law, violating various Board Policies, and violating her professional duties. The charges requested that Ms. Lefebvre be terminated from her employment with the District. On February 6, 2018, the Norway-Vulcan Area Schools Board of Directors met and considered the charges. The Norway-Vulcan Area Schools Board of Education approved the charges and the request to terminate Ms. Lefebvre’s employment. The charges as well as the Board action on the charges were sent to Ms. Lefebvre on February 8, 2018.
On February 23, 2018, Filipe S. Iorio, attorney at law, filed a claim of appeal with the Commission on behalf of Ms. Lefebvre. The claim of appeal asserted that the charges were untrue, that the district’s reasons to request Ms. Lefebvre’s discharge were arbitrary or capricious and the District engaged in disparate treatment. On March 5, 2018, Martha J. Marcero, attorney at law, filed an answer to the claim of appeal on behalf of the district.
On March 16, 2018, a prehearing conference was held, via telephone, with Filipe Iorio, attorney at law, representing Ms. Lefebvre and Martha Marcero, attorney at law, representing the district. It was agreed that the hearing would be held May 14 through 17, 2018 with witness and exhibit lists exchanged by April 30, 2018.
The hearing was convened on May 14, 2018 as scheduled. Mr. Iorio represented Ms. Lefebvre at the hearing. Ms. Marcero represented the district at the hearing. The hearing was continued on May 15 and was completed on May 16, 2018. At the conclusion of the hearing a deadline for filing briefs was set. Post-hearing briefs were to be postmarked to the Commission on or before June 15, 2018 and responsive post-hearing briefs were to be postmarked to the Commission no later than July 5, 2018.
The post-hearing briefs and replies of the parties were timely submitted to the Commission.
ISSUE AND APPLICABLE LAW
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. The United States Supreme Court has observed that the action of an administrative agency would normally be considered arbitrary and capricious if the agency relied on impermissible factors, failed to consider an important aspect of the problem, offered an explanation for its action that is counter to the evidence, or rendered a decision that is so implausible that it cannot be attributed to a difference in view or to agency expertise. Motor Vehicle Manufacturers Association v State Farm Mutual Automobile Insurance Company, 463 US 29, 43; 103 S Ct 2856; 77 L Ed 2d 443 (1983).
In the case of Cona v Avondale School District (11-61) the Commission discussed the arbitrary and capricious standard as follows:
In Garza and Lecznar v Taylor School District (82-53), this Commission applied an “arbitrary and capricious” standard to review a management decision of a controlling board, citing the following Black’s Law Dictionary definition of action that is arbitrary:
[F]ixed or done capriciously or at pleasure; without adequate determining principle; not founded in the nature of things; nonrational; not done or acting according to reason or judgment;. . .without fair, solid, and substantial cause;. . .without cause based on the law. . .not governed by any fixed rules or standard. Black’s Law Dictionary p 134 (Revised 4th Ed.) [citations omitted]
A decision is arbitrary and capricious if it is based on whim or caprice and not on considered, principled reasoning. Chrisdiana v Department of Community Health, 278 Mich App 685, 692 (2008). Notwithstanding that the arbitrary or capricious standard of review is highly deferential, our review is not a mere formality and we are not required merely to rubber stamp the decision of a controlling board. Our responsibility in this case is to review the quality and quantity of the evidence and to determine if the decision to discharge appellant is the result of a deliberate, principled reasoning process supported by evidence. If there is a reasoned explanation for the decision, based on the evidence, the decision is not arbitrary or capricious. Williams v International Paper Company, 227 F3d 706, 712 (CA 6, 2000); Rochow v Life Insurance Company of North America, 482 F3d 860, 865 (CA 6, 2007); McDonald v Western-Southern Life Insurance Company, 347 F3d 161 (CA 6, 2003).
The Commission has held that it is their responsibility to review the quality and quantity of the evidence and to determine if the decision to discharge appellant is the result of a deliberate, principled reasoning process supported by evidence.
When the Legislature amended the Teachers’ Tenure Act, it was well aware that in the event that the teacher contested the charges against him or her, the district would be 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). The Legislature did not change which party bears the burden of proof or the quantum of proof required to meet the threshold to discharge or demote a teacher. Craig v Larson, 432 Mich 346, 352 (1989). Therefore, the district bears the burden of proof to establish its case by a preponderance of the evidence.
A "preponderance" 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).
Based upon the foregoing, the issue in this case is whether the board established by a preponderance of the evidence that its discharge of petitioner was not arbitrary or capricious.
WITNESS AND EXHIBITS
The following individuals testified at the hearing:
The following exhibits were offered on behalf of Petitioner/Appellant and admitted into the record unless otherwise indicated:
The following exhibits were offered on behalf of Appellee/Respondent and admitted into the record unless otherwise indicated:
1. Respondent Exhibit A was not offered.
2. Respondent Exhibit B is Norway-Vulcan Bylaws and Policies.
3. Respondent Exhibit C is a Summary of Investigation.
4. Respondent Exhibits D and E were not offered.
5. Respondent Exhibit F is a curriculum vitae for Mary Beth Bergeron.
6. Respondent Exhibit G is a text message chain between Petitioner and Ms. Neuens, dated December 6, 2017.
7. Respondent Exhibit H is attendance record.
8. Respondent Exhibit I is Mr. Tinti’s notes from January 4 interview of Petitioner.
9. Respondent Exhibit J is Mr. Steigerwald’s notes from January interview of Petitioner.
10. Respondent Exhibit K is Mr. Tinti’s notes from the January 8 interview of Petitioner.
11. Respondent Exhibit L is Mr. Steigerwald’s notes from the January 8 interview of Petitioner.
Respondent Exhibit M, an MEA booklet “Your Duty to Report Child Abuse” was offered and not admitted after objection.
FINDINGS OF FACT
Ms. Lefebvre has a Bachelor of Science degree in math with a minor in economics. She has a master’s degree in school administration. She is a certificated teacher with an endorsement in all subjects 7-8, math 6-12, economics 6-12, and school counseling. [Tr. Vol. III, pg. 539]
Ms. Lefebvre began working as a teacher at Norway-Vulcan schools in 1997 where she obtained tenure. In 2010 she received an assignment to serve as the school counselor for the Norway-Vulcan High School. For the 2017/2018 school year, in addition to her school counselor duties, Ms. Lefebvre also taught Algebra II for fourth hour, Learning Outcomes for sixth and seventh hour and monitored online students. [Tr. Vol. III, pg. 541]
Ms. Susie Neuens is a school social worker employed by the Norway-Vulcan Public Schools. She has worked for the school district for approximately 19 years. She has a bachelor’s degree in social work and a master’s degree in social work. Ms. Neuens is assigned mainly to the elementary and middle schools working with the kindergarten to eighth grade students. [Tr. Vol. 1, pgs. 12-13]
Ms. Neuens and Ms. Lefebvre took counseling classes at Northern Michigan University together. [Tr. Vol. I, pg. 13]
The tribunal is taking judicial notice that November 6, 2017 was a Monday; November 7, 2017 was a Tuesday; November 8, 2017 was a Wednesday; November 9, 2017 was a Thursday; November 10, 2017 was a Friday; November 13, 2017 was a Monday and November 15, 2017 was a Wednesday.
Student C.B. incident
C.B. was a student enrolled and attending Norway-Vulcan High School in November 2017. C.B. was absent on Thursday, November 10, 2017 and Friday, November 11, 2017. [Resp. Ex. H]
Based on the totality of the testimony, I find the following timeline of events:
Nov 6, 7, or 8 C.B. reports abuse to Ms. Lefebvre
Nov 6, 7, or 8 Ms. Lefebvre tells Mr. Tinti C.B. reported abuse to her
Nov 6, 7, 8, 9, or 10 Mr. Tinti tells Mr. Meneghini and Ms. Neuens C.B. reported abuse to Ms. Lefebvre
9a.m. Nov 15 C.B. reports abuse to Ms. Neuens
C.B. indicates she reported abuse to Ms. Lefebvre “last week”
Between 9 and 9:30 a.m. Nov. 15
Ms. Neuens calls DHHS and files DHHS Form 3200 reporting the abuse and that the counselor had filed a report “last week” and notifies Ms. Lefebvre that she also completed a Form 3200 regarding C.B.’s report of physical abuse
11:12a.m. Nov 15 Ms. Lefebvre files DHHS Form 3200
On Wednesday, November 15, 2017, C.B. approached Ms. Neuens to discuss a matter. C.B.’s family is known to Ms. Neuens. Ms. Neuens has been working with members of the family for the past four years. The family has significant issues. The family consists of six children of which C.B. is the oldest at 17 years old. [Tr. Vol. I, pgs. 17-20]
Upon receiving the allegation, Ms. Neuens immediately called the Department of Health and Human Services (DHHS) and reported the suspected child abuse at approximately 9:00 a.m. She then completed and filed the DHHS Form 3200. [Tr. Vol. I, pgs. 20-21]
At approximately 9:30 a.m. on November 15, 2017, Ms. Neuens contacted Ms. Lefebvre regarding the referral to report that C.B. reported the abuse was still occurring in the home and to alert Ms. Lefebvre that she, Ms. Neuens, had now also reported the abuse. At that time, Ms. Lefebvre reported to Ms. Neuens that she had never contacted DHHS or completed a Form 3200 regarding C.B.’s statement to her. [Tr. Vol I, pgs. 21-23] Ms. Lefebvre confirmed that she reported to Ms. Neuens that she did not report to DHHS or complete a Form 3200 when C.B. initially reported to her. Ms. Lefebvre did not complete a Form 3200 until November 15, 2017 at about 11:12 a.m. [Tr. Vol. III, pg. 558]
On November 15, 2017 when C.B. approached Ms. Neuens she was visibly upset and angry. She requested to speak to Ms. Neuens stating that “she had reported some abuse going on to Ms. Lefebvre last week and nothing was done”. C.B. reported that “the step-dad was pushing a younger brother, hitting and pushing younger brother around”. [Tr. Vol. I, pgs. 15-17]
Ms. Lefebvre contends that she was first contacted by C.B. regarding the reported abuse on November 13, 2017. The District contends that C.B. first reported the abuse during the week of November 6, 2017. Based on the record as a whole, I find that it is likely that C.B. first reported to Ms. Lefebvre that her younger brother was being physically abused by her mother’s partner during the week of November 6, 2017. The report occurred on Monday, November 6, 2017; Tuesday, November 7; or Wednesday, November 8, 2017. C.B. was absent from school on November 9 and 10, 2017 and could not have made the referral on either of those dates.
Mr. Tinti contended that it was during the week of November 6, 2017 that Ms. Lefebvre came to him indicating that C.B. reported physical abuse of her brother and stating that she was making the appropriate DHHS referral. [Tr. Vol. II, pg. 228] Mr. Tinti testified that while in the lunchroom during that week he had a brief conversation with Mr. Meneghini and Ms. Neuens to alert them that C.B. has disclosed abuse to Ms. Lefebvre. This conversation occurred because Mr. Meneghini and Ms. Neuens were discussing concerns about the family. [Tr. Vol. II, pg. 228] This is supported by the testimony of Mr. Meneghini that he first become aware of the situation when Mr. Tinti spoke to Ms. Neuens and he in the lunchroom and the following week is when Ms. Neuens completed the Form 3200. [Tr. Vol. I, pgs. 166-167] Ms. Neuens who testified that Mr. Tinti is the individual who first alerted her that C.B. had reported abuse to Ms. Lefebvre. [Tr. Vol. I, pg. 22] This was the reason that in completing her own Form 3200, Ms. Neuens referenced that there was a prior abuse report Form 3200 filed “last week by our high school guidance counselor”. [Tr. Vol. I, pg. 25] These statements are found to be clear and credible.
Although Ms. Lefebvre contends that she was not told about abuse until Monday, November 13, 2017, there is nothing to support her contention. She made no effort to document the supposed meeting and reported allegation on that date. Initially, when interviewed she was unable to give an actual date. She stated that she did not make the referral on the day of the report but did the next day. However, documents indicate that she did not make the referral until November 15, 2017 which would have been two days after she is now contending C.B. made the report to her. [Resp. Ex. I] Ms. Lefebvre stated that she was certain that it could not have been the week of November 6 because she knew a weekend did not occur because she would have been worried about the child over a weekend. This claim is not found credible. Ms. Lefebvre contended that she did not make the referral to DHHS immediately because of her lack of experience and she was naďve about the law. [Resp. Ex. C]. She then stated that she did not make the referral immediately upon C.B.’s report because she did not believe C.B. [Tr. Vol. III, pg. 557] She thought C.B. was making it up merely to manipulate her mother and so C.B. could live with her father. If Ms. Lefebvre did not believe any abuse occurred, there would be no reason to be worried about the child over a weekend as she stated during the interview.
Ms. Neuens, Mr. Tinti, and Mr. Meneghini’s timeline regarding the events have been consistent and are supported by the record. Ms. Lefebvre’s timeline and reasoning has changed throughout the process. Her contentions are not found to be credible. 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.
The Child Protection Law, MCL 722.621 requires that a person employed as a school counselor or teacher who has reasonable cause to suspect child abuse or child neglect shall make an immediate report to centralized intake by telephone, or if available through the online reporting system, of the suspected child abuse or neglect. Within 72 hours after making the oral report by telephone to centralized intake, the reporting person shall file a written report as required in this Act. [emphasis added]
Ms. Lefebvre is a person employed as a school counselor or teacher. C.B. reported to Ms. Lefebvre that her step-father was mean to one of her brothers and had hit him. C.B. stated that he does not hit the other kids as they are his. [Tr. Vol. III, pg. 555] Ms. Lefebvre admitted that she did not report the reported physical abuse at that time. [Tr. Vol. III, pg. 557]. Ms. Lefebvre never made any oral report to centralized intake by telephone. She did complete a Form 3200 on November 15, 2017, however, this was not “immediate” as would be required under the Act. A person would be required to file a Form 3200 within 72 hours after making the initial oral report or could simply complete the Form 3200 immediately and not be required to submit an additional report within 72 hours.
Ms. Lefebvre did not comply with her legal obligations under the Child Protection Act or Board Policy. She did not make an immediate referral either by telephone or by filing written Form 3200 as required. Even if C.B. had actually reported the physical abuse on November 13, 2017 rather than the week of November 6, 2017, Petitioner still did not comply with the Child Protection Act because she did not file an oral report or Form 3200 until two days after C.B. reported the allegation of physical abuse. This is not the immediate report required by the Child Protection Act.
Student R.V. incident
Angela Jungwirth is a School Counselor/ Teacher with the North Dickinson County School. She knows Ms. Lefebvre as a fellow school counselor within the area. She does not know Ms. Neuens well. [Tr. Vol. I, pgs. 111-113]
On December 6, 2017, Ms. Jungwirth had a middle school student approach her at North Dickinson Schools who is a friend of R.V., a Norway-Vulcan student. The middle school student reported to Ms. Jungwirth that she was worried about R.V. because R.V. was cutting herself and was depressed. The student reported that R.V. had cut herself as recently as two nights prior and sent a picture to her. She reported that the cuts were on R.V.’s thighs. [Pet. Ex. 11 / Tr. Vol. I, pgs. 114-116]
Ms. Jungwirth then sent an email to Mr. Tinti and Ms. Lefebvre regarding the student’s report that R.V. was cutting herself. [Pet. Ex. 11]
Ms. Lefebvre responded to the email confirming that it was received and indicating that she would refer the matter to Ms. Neuens as R.V. is a middle school student. Ms. Lefebvre then forwarded Ms. Jungwirth’s email to Ms. Neuens copying Mr. Tinti. [Pet. Ex. 11]
Upon receipt of Ms. Lefebvre’s email concerning the referral to Ms. Neuens and the copy to Ms. Neuens, Mr. Tinti sent a text message to Ms. Lefebvre that Ms. Neuens was out of the office on that day and requesting that Ms. Lefebvre check on R.V. Additionally, he indicated that he would be willing to check as he knew the parents. Ms. Lefebvre’s indicated that she would handle the situation. [Tr. Vol. II, pg. 240]
Mr. Tinti felt that response to a report of self-harm could not be delayed because of the potential danger to a student. [Tr. Vol. II, pg. 241]
After Mr. Tinti requested that she speak to R.V., Ms. Lefebvre met with R.V. in her office for approximately 20 minutes. In response to the concern, R.V. rolled her eyes and said “yeah, I cut my knees last week”. [Tr. Vol. III, pg. 571]
After the disclosure, Ms. Lefebvre asked R.V. about her family, friends, and school. She stated that R.V. insisted that it was stupid and did not know what the big deal was. Ms. Lefebvre pressed for more information and then told R.V. that it would be better if Ms. Neuens talked to R.V. and that she would have Ms. Neuens follow-up with R.V. the next day. [Tr. Vol. III, pg. 572]
Ms. Lefebvre did nothing further. She did not call R.V.’s parents. She did not contact Ms. Neuens by email or phone summarizing the meeting. She did not inform Ms. Neuens that Ms. Lefebvre told the student that she would have Ms. Neuens follow-up the next day. [Tr. Vol. III, pg. 575]
On the evening of December 6, 2017, Ms. Neuens who had not been at work that day checked her emails and read the email chain between Ms. Jungwirth and Ms. Lefebvre. Ms. Neuens then initiated contact with Ms. Lefebvre about the matter by sending a text message to Ms. Lefebvre at 7:45 p.m. [Resp. Ex. G]
Ms. Lefebvre confirmed to Ms. Neuens that she spoke to R.V. and R.V. confirmed that she was engaged in self-harm by cutting herself. Ms. Neuens asked Ms. Lefebvre if she contacted the parents. [Resp. Ex. G]
Ms. Lefebvre stated “No..I should have after school” (sic). [Resp. Ex. G]
On December 7, 2017, Ms. Neuens reported her concern that Ms. Lefebvre did not notify the parents to Mr. Tinti. Mr. Tinti instructed Ms. Neuens to take her concern to Mr. Steigerwald. When she spoke to Mr. Steigerwald, Ms. Neuens also raised the concern about the delay in the reporting of C.B.’s allegation of physical abuse.
As a result of Ms. Lefebvre’s failure to report the reported physical abuse and her failure to appropriately respond to the report of a student’s self-harm, the District administration lost confidence in her ability to protect the students. [Tr. Vol. II, pg. 366]
CONCLUSIONS OF LAW
The District alleges that Ms. Lefebvre failed to make a mandatory report of suspected child abuse as required by State law and Board policy. Petitioner/Appellant contends that she did report as required by State law and Board policy.
First, Petitioner contends that she did not have a reasonable suspicion of child abuse in the home of C.B. and therefore, she was not required to make a mandatory child abuse referral to DHHS. C.B. told Ms. Lefebvre that her step-father hit her brother. This is a clear detailed statement indicating that physical abuse was happening in the home. It was not Petitioner’s responsibility to determine the veracity of the claim or weigh potential motivations for the disclosure. Petitioner was required to refer the reported child abuse to DHHS for investigation. The statute required that Petitioner was to make the report immediately either by calling the central intake or filing the paperwork. If Petitioner had chosen to make the initial referral by telephone, she would then have been required to follow-up with the paperwork within 72 hours. The Statute does not permit Petitioner to wait 72 hours to file the initial report as claimed by Petitioner in her brief. The statute requires immediate reporting either by telephone or by filing DHHS Form 3200. If (and only if) the immediate report is made by telephone is a 72-hour grace period allowed for filing Form 3200.
The Petitioner does not dispute that she failed to make a referral to DHHS immediately upon receiving the reported child abuse. Instead, she contends that she was not required to report because she did not have a reasonable suspicion, or she did comply when she filed the report days after she received the report. Petitioner received a statement from a student that physical child abuse was occurring in her home. It was Petitioner’s responsibility to make the referral immediately under both the Child Protection Law and Board Policy. Petitioner simply did not comply with the requirements.
From the record, it seems that Petitioner did not intentionally fail to make the report. It appears that Ms. Lefebvre’s inexperience with protective services matters caused her to initially delay. Then, it seems that after speaking with C.B., Petitioner became busy with other duties and simply forgot about the matter until Ms. Neuens contacted her on November 15, 2017. It was Ms. Neuens’ actions that spurred Petitioner to finally make the required referral.
Petitioner’s actions in failing to make the required referral cannot be excused by the fact that she spoke to Mr. Tinti and Ms. Neuens about the incident. The Child Protection Statute specifically states that a mandatory reporter must report to DHHS: reporting suspected child abuse to a school administrator is not sufficient. Petitioner failed to file an immediate report as required by the Child Protection Statute and Board Policy.
Board Policy 3213 specifically requires that each professional staff member shall maintain a standard of care for supervision, control and protection of students commensurate with assigned duties and responsibilities. [Resp. Ex. B] The District contends that Ms. Lefebvre did not comply with her obligations regarding the protection for either C.B. or R.V. when she failed to report the reported physical abuse of C.B.’s brother and R.V.’s self-harm activity.
Ms. Lefebvre does not dispute the fact that she made no effort to contact R.V.’s parents after R.V. confirmed that she was cutting herself. I find that this is a violation of her professional obligations under Board Policy.
Petitioner contends that she was subject to disparate treatment because neither Mr. Tinti nor Ms. Neuens, who were both aware of the report concerning R.V., did not call the parents but were not subject to any discipline. This argument misses the significant point that neither Mr. Tinti nor Ms. Neuens were similarly situated to Ms. Lefebvre. Mr. Tinti was the administrator who asked Ms. Lefebvre to handle the matter. He offered to speak to R.V. and her parents. However, Ms. Lefebvre assured Mr. Tinti that she could and would handle the matter. Mr. Tinti never spoke to R.V. and did not make any assessment about her condition. Therefore, he would not have been the appropriate individual to contact R.V.’s parents on December 6, 2017. Likewise, Ms. Neuens did not speak to R.V. and did not make any assessment about the matter on December 6, 2017. It would not have been appropriate for her to contact R.V.’s parents at that time. Ms. Neuens did in fact contact R.V.’s parents after speaking directly to R.V. Ms. Lefebvre was the only staff person to speak to R.V. on December 6, 2017. It was her responsibility to alert the parents to the fact that R.V. admitted to self-harm. There was no disparate treatment. Mr. Tinti and Ms. Neuens responded appropriately to the information they had at the time. It was Ms. Lefebvre that failed to act properly by notifying R.V.’s parents concerning the self-harm.
I find that that the District has established that Ms. Lefebvre violated the provisions of the Child Protection Law and Board policy through her failure to take appropriate actions concerning the protection of children.
Ms. Lefebvre argues that Mr. Steigerwald acted in a retaliatory manner in seeking the dismissal of Ms. Lefebvre. I do not find any credible evidence to support this allegation. Ms. Lefebvre contends that Mr. Steigerwald was upset because she sent a letter to the Board of Directors concerning Mr. Steigerwald and communication. I do not find that the mere fact that a letter was sent to the Board by Ms. Lefebvre caused Mr. Steigerwald to retaliate. Mr. Steigerwald and the Board’s action were neither arbitrary nor capricious. The actions were taken after a deliberate consideration of the facts in this matter.
Ms. Lefebvre argues that while she was aware of the Child Protection Statute and its requirements as well as Board policies, the District failed to properly train her regarding the policies. Ms. Lefebvre is a highly experienced teacher. She is well educated. She has been employed with the District since 1997 becoming the counselor upon obtaining additional credentials in 2001. There is no evidence to support the argument that Ms. Lefebvre failed to report either the C.B. incident or R.V. incident because of a lack of training.
The Commission has held that it is their responsibility to review the quality and quantity of the evidence and to determine if the decision to discharge appellant is the result of a deliberate, principled reasoning process supported by evidence. Additionally, as noted in Cona, the Commission held even if there are factors that would support a less drastic level of discipline than that chosen by a controlling board, “[O]ur duty is not to fashion the penalty that we ourselves would prefer but to review the controlling board’s decision for arbitrariness and capriciousness.”
There may be factors that weigh in appellant’s favor such as her exemplary teaching record. However, a reasonable difference of opinion about the appropriate level of discipline would not support a finding that controlling board’s decision was arbitrary or capricious. Based on a careful review of the evidence in this case, it cannot reasonably be said that the discharge decision was based on whim or caprice or that it was made without reasonable consideration of evidence. Nor does the record support a finding that the controlling board failed to consider important evidence or that it failed to appreciate the significance of evidence.
In this case, the Board determined that Ms. Lefebvre actions in her failure to comply with the requirements of the Child Protection statute and her failure to report a student’s self-harm to her parents called into question her professional judgement in a manner that would prevent the administration from trusting her resulting in the decision to terminate her employment.
In this case, the decision was the result of a deliberate, principled reasoned process supported by evidence.
Because I have found that the Controlling Board’s decision was the result of deliberate, principled reasoning based on evidence as required by MCL 38.101(1), the Administrative review of the Controlling board’s decision ends. The Szopo factors need not be addressed. Green v Reeths-Puffer, STC 16-13. However, to ensure an accurate and complete record, specific findings on the Szopo factors are included.
(1) Was the behavior planned or deliberate?
I do not find that Ms. Lefebvre’s actions were planned or deliberate. In fact, the actions appear to have been the result of negligence in the conduct of her professional obligations.
(2) Did it constitute a crime?
Failure to report suspected child abuse could subject a person to criminal charges. However, the county prosecutor declined to file any charges against Ms. Lefebvre.
(3) Did it involve fraud, deceit, sexual misconduct, drugs, or a weapon?
Ms. Lefebvre’s actions did not involve fraud, deceit, sexual misconduct, drugs or a weapon.
(4) What was the teacher's motive or purpose?
From the record, it appears that Ms. Lefebvre was busy with other activities and simply forgot to make the required Child Abuse Referral. As to student R.V., it appears that she felt that it was Ms. Neuens’ responsibility and did not follow through as a result.
(5) Did the conduct result in harm to a specific victim, and if so, what is the gravity of the harm?
The purpose of requiring an immediate Child Protection referral is the safety of a child as well as the protection of evidence. Bruises or other marks from physical abuse will heal. Although once DHHS was called to investigate, they were unable to substantiate any abuse. It is unclear if this was the result of a lack of evidence such as a bruise healing or if there was in fact no child abuse. Failure to make a child abuse referral can result in significant harm to a child. It is simply not clear from the record in this matter if Ms. Lefebvre’s conduct resulted in harm to a specific victim.
(6) How much did the teacher's conduct deviate from the norms of appropriate conduct for members of society and teaching professionals?
Petitioner/Appellant’s conduct was inappropriate and unprofessional. Based on the testimony of all of the professionals in this matter, her failure to report the reported physical abuse to DHHS and her failure to notify R.V.’s parents of the self-harm deviated significantly from the norm.
(7) Was there any previous disciplinary record, especially for the same type of misconduct?
There had been no previous discipline for Petitioner/Appellant.
(8) What effect did any previous punishments or interventions have on the teacher's behavior?
This factor is not applicable.
(9) What is the teacher's attitude, including whether the teacher accepts responsibility and exhibits a willingness to change?
Ms. Lefebvre has not taken responsibility for her actions.
(10) What is the likelihood the behavior will recur?
It is difficult to evaluate whether Ms. Lefebvre would fail to make the appropriate referral in the future. She has an exemplary record as a teacher. She has no previous discipline. However, she appears to continue to minimize and attempt to excuse her failures. She did not make it a priority to ensure the safety of the students in either incident. Mr. Steigerwald’s concerns about her professional judgement are well-placed considering her actions.
IT IS ORDERED that the Respondent's discharge of Sandra Lefebvre is appropriate and she is hereby discharged.
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 brief is August 13, 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.
Administrative Law Judge
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.
 Initials are used to protect the privacy of a minor child.