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IN THE MATTER OF:
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Docket No.: |
17-010861 |
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Thomas Mertz, Petitioner
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Byron Center Public Schools, Respondent
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Case No.: |
17-9
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Agency: |
Education
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Case Type: |
ED Teacher Tenure
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Filing Type: |
Appeal |
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STATE OF
MICHIGAN ADMINISTRATIVE HEARING SYSTEM
Issued and entered
this 5th day of March, 2018
by: Kandra Robbins
Administrative Law Judge
PRELIMINARY DECISION AND ORDER
OF
ADMINISTRATIVE LAW JUDGE
PROCEDURAL HISTORY
By letter dated May 3, 2017, Daniel Takens, Superintendent of Byron Center Public Schools, charged Thomas Mertz, a tenured teacher, with incompetency, insubordination, and misconduct-dereliction of duties as a teacher for the school district. The charges are specifically enumerated in the 17-page letter. The charges requested that Mr. Mertz be terminated from his employment with the District. On May 3, 2017, the Byron Center Public Schools Board of Directors met and considered the charges. The Byron Center Public Schools Board of Education approved the charges and the request to terminate Mr. Mertz’s employment. The charges as well as the Board action on the charges were sent to Mr. Mertz on May 4, 2017.
On May 22, 2018, Fillipe S. Iorio, attorney at law, filed a claim of appeal with the Commission on behalf of Mr. Mertz. The claim of appeal asserted that the charges were untrue, that the Board of Directors failed to conduct a fair and impartial investigation, that the district’s reasons to request Mr. Mertz’s discharge were arbitrary or capricious and the District’s performance evaluation system was not rigorous, transparent or fair. On May 30, 2017, Katherine Wolf Broaddus, attorney at law, filed an answer to the claim of appeal on behalf of the district.
On June 12, 2017, a prehearing conference was held, via telephone, Fillipe Iorio, attorney at law, representing Mr. Mertz and attorney Katherine Wolf Broaddus, representing the district. It was agreed that hearing would be held September 25-29, 2017, with witness and exhibit lists exchanged by September 5, 2017. On August 29, 2017, the Parties filed a Stipulation and Order to extend the filing of witness and exhibit lists to September 8, 2017. On September 15, 2017, Petitioner’s counsel filed a request to adjourn the hearing to allow for additional time to review the documents received in late August through September 12, 2017. On September 18, 2017, an Order Denying the Request was issued because the hearing dates were still more than 10 days from the date of the Motion and all witness and exhibit lists had been filed by September 8, 2017. Petitioner had sufficient time to review any and all proposed exhibits prior to the scheduled start of the hearing date of September 25, 2017. On September 22, 2017, Petitioner again filed a motion to adjourn the hearing contending late disclosure of discovery materials. Petitioner had received all proposed exhibits by September 8, 2017 as required by the August 29, 2017 Stipulation. Petitioner had sufficient time to prepare for the hearing.
The hearing was convened on September 25, 2017 as scheduled. Mr. Iorio represented Mr. Mertz at the hearing. Ms. Broaddus represented the district at the hearing. At the beginning of the hearing, Petitioner made an Oral Motion to again adjourn the hearing. This Motion was again denied as Petitioner had received all proposed exhibits on September 8, 2017 as ordered. Petitioner had sufficient time to prepare for the hearing. The hearing continued on September 25, 26, 28, 29, and October 2, 2017. The hearing was unable to be completed. Two additional days were scheduled for hearing. The hearing reconvened on November 2 and 3, 2017. It was again unable to be completed a final day, November 16, 2017, was held.
The initial post-hearing briefs of the parties were to be postmarked to the Commission on or before December 22, 2017 and responsive post-hearing briefs were to be postmarked to the Commission no later than January 4, 2018. Because the Commission office was closed on December 22, 2017 for the state holiday, the briefs were not due until December 26, 2017. The post-hearing briefs of the parties were timely submitted to the Commission. On January 4, 2018, the parties timely submitted reply briefs.
ISSUE AND APPLICABLE LAW
The district alleges that petitioner’s teaching performance was ineffective, that he was insubordinate and engaged in misconduct and that these actions warrant his discharge. A tenured teacher can be discharged only for a reason that is not arbitrary or capricious. MCL 38.101(1). 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).
The Board of Education must prove the charge of unsatisfactory teaching performance by a preponderance of the evidence. Luther v Alpena Public Schools Board of Education, 62 Mich App 32 (1975). The "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).
Before a tenured teacher can be discharged for incompetence, the charging authority must give the teacher notice of the specific nature of his or her shortcomings and a reasonable opportunity to correct the alleged deficiencies. Manning v Detroit Public School District (91-11). In Manning, the Commission opined as follows:
This Commission has described incompetence in the instructional setting as a pervasive pattern of behavior resulting in a lack of classroom organization and harmony, and dissatisfaction on the part of the pupils and supervising authorities. Niemi v Board of Education of the Kearsley Community School District (74-36) (Remand Opinion), aff'd 103 Mich App 818; 303 NW2d 905 (1981). In determining competence, we consider the following five factors, deficiency in any one of which may support a finding of incompetence: knowledge of the subject; ability to impart it; manner and efficacy of discipline; rapport with parents, students and other faculty; and physical and mental ability to withstand the strains of teaching. Beebee v Haslett Public Schools, 66 Mich App 718; 230 NW2d 724 (1976), rev'd on other grounds, 406 Mich 224; 278 NW2d 37 (1979); Niemi, supra. Our essential concern is the effect of the teacher's questioned activity on the students. Wolff, supra. The charging party must prove that the alleged deficiencies had an adverse effect on students, other teachers and school staff; this causation element must be proved by a preponderance of the evidence. Hagerty v Board of Education of the Birmingham Public Schools (84-28), aff'd sub nom Hagerty v State Tenure Commission, 179 Mich App 109; 445 NW2d 178 (1989); Nelson v Ecorse Public Schools (83-87).
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 and admitted into the record as Joint exhibits[1] unless otherwise indicated:
1A and B were not offered
1C is Individualized Educational Program (IEP) Report, dated May 19, 2016.
1D is the PowerSchool reported grades for the 2016/2017 School Year.
1E is the Student’s work in the math binder for the 2016/2017 School Year.
1F is the Student’s reading log for the 2016/2017 School Year.
2A is the IEP Report, dated April 21, 2015.
2B is the reported grades for Student.
3A is the IEP Report, dated April 15, 2016.
3B is the reported grades for Student.
4A is the IEP Report, dated October 2, 2015.
4B is Student’s reported grades for the 2015/2016 school year.
4C is the IEP Report, dated September 29, 2016.
4D is Student’s reported grades for the 2016/2017 school year.
4E is the Student’s work from the math binder.
5A is the IEP Report, dated April 29, 2015.
5B is the Student’s reported grades for the 2015/2016 school year.
5C is the IEP Report, dated April 26, 2016.
5D is the Student’s reported grades for the 2016/2017 school year.
5E is the Student’s work from the math binder.
5F is the Student’s reading log.
6A and B were not offered.
6c is the IEP Report, dated June 1, 2016.
6D is the Student’s reported grades for the 2016/2017 school year.
6E is the Student’s work from the math binder.
6F is the Student’s reading log.
7A is the IEP Report, dated May 12, 2015.
7B is the Student’s reported grades for the 2015/2016 school year.
8A is the IEP Report, dated May 4, 2015.
8B is the Student’s reported grades for 2015/2016 school year.
8C is the IEP Report, dated April 29, 2016.
8D is the Student’s reported grades for the 2016/2017 school year.
8E is the Student’s work from the math binder.
8F is the Student’s reading log.
8G is the Student’s work from the Living Skills Folder.
9A is the IEP Report, dated March 25, 2015.
9B is Student’s reported grades for the 2015/2016 school year.
9C is the IEP Report, dated March 22, 2016.
9D is the Student’s reported grades for the 2016/2017 school year.
9E is the Student’s work in the math binder.
9F is the Student’s reading log.
9G is the Student’s work from the Living Skills Folder.
10A is the IEP Report, dated October 19, 2015.
10B is the Student’s reported grades for the 2015/2016 school year.
10C is the IEP Report, dated October 11, 2016.
10D is the Student’s reported grades for the 2016/2017 school year.
10E is the Student’s work in the math binder.
10F is the Student’s reading log.
11A and B were not offered.
11C is the IEP Report, dated June 1, 2016.
11D is the Student’s reported grades for the 2016/2017 school year.
11E is the Student’s work in the math binder.
11F is the Student’s reading log.
12A is the IEP Report, dated October 15, 2015.
12B is the Student’s reported grades for the 2015/2016 school year.
14A is the IEP Report, dated October 2, 2015.
14B is the Student’s reported grades for the 2015/2016 school year.
14C is the IEP Report, dated September 30, 2016.
14D is the Student’s reported grades for the 2016/2107 school year.
14E is the Student’s work in the math binder.
15A is the IEP Report, dated September 21, 2015.
15B is the Student’s reported grades for the 2015/2016 school year.
16A and B were not offered.
16C is the IEP Report, dated May 4, 2016.
16D is the Student’s reported grades for the 2015/2016 school year.
16E is the Student’s work in the math binder.
16F is the Student’s reading log.
16G is the Student’s work in the Living Skills Folder.
17A is the IEP Report, dated March 31, 2015.
17B is the Student’s reported grades for the 2015/2016 school year.
17C is the IEP Report, dated March 16, 2016.
17D is the Student’s reported grades for the 2016/2017 school year.
17E is the Student’s work in the math binder.
The following exhibits were offered on behalf of Appellant/Petitioner 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 1 is the redacted service capture notes for School Social Worker Christy Wieranga.
2. Respondent Exhibit 2a Byron Center Public Schools Administrative Guideline 3221, Individual Development Plan.
3. Respondent Exhibit 2b is Byron Center Public Schools Bylaws and Policies 3220, Professional Staff Evaluation.
4. Respondent Exhibit 2c is Summary Rating Definitions for Thomas Mertz evaluations 2011 through 2017.
5. Respondent Exhibit 2d is email chain between Mr. Dykhouse and Mr. Joseph beginning on November 16, 2016.
6. Respondent Exhibit 2e is email from Petitioner to parents dated February 3, 2017.
7. Respondent Exhibit 2f is a photo of the play money set purchased for Mertz Moolah.
8. Respondent Exhibit 2g is Student Growth Data reports.
9. Respondent Exhibit 3a is the Byron Center Public Schools Bylaws and Policies 5421, Grading.
10. Respondent Exhibit 3b is the grades reported by Mr. Mertz for the 2013/2014 school year through the 2016/2017 school year.
11. Respondent Exhibit 3c is the Byron Center Public Schools High School Student Handbook for the 2015/2016 school year, Grades Excerpt.
12. Respondent Exhibit 3d is the Byron Center Public Schools High School Student Handbook for the 2016/2017 school year, Graded Excerpt.
13. Respondent Exhibit 3e is the Bryon Center Public Schools High School Staff Handbook for the 2015/2016 school year, Grades Excerpt.
14. Respondent Exhibit 3f is the Bryon Center Public Schools High School Staff Handbook for the 2016/2017 school year, Grades Excerpt.
15. Respondent Exhibit 3g is an email from Mr. Joseph to High School Staff, dated January 26, 2012.
16. Respondent Exhibit 3h is an email from Mr. Joseph to the High School Staff, dated June 4, 2012.
17. Respondent Exhibit 3i is an email from Mr. Joseph to the High School Staff, dated November 22, 2013.
18. Respondent Exhibit 3j is an email from Mr. Joseph to the High School Staff, dated November 25, 2013.
19. Respondent Exhibit 3k is an email from Mr. Joseph to the High School Staff, dated January 8, 2016.
20. Respondent Exhibit 3l is an email from Mr. Joseph to the High School Staff, dated February 8, 2016.
21. Respondent Exhibit 3m is an email form Mr. Joseph to the High School Staff, dated May 30, 2016.
22. Respondent Exhibit 3n is a Notice of Clarification, dated February 16, 2017.
23. Respondent Exhibit 3o is Participation Rubric.
24. Respondent Exhibit 4a is an email from Ms. Tacoma to Mr. Mertz, dated September 19, 2014.
25. Respondent Exhibit 4b is an email from Ms. Tacoma to Mr. Mertz, dated February 10, 2017.
26. Respondent Exhibit 4c is an email from Ms. Tacoma to Mr. Mertz, dated February 17, 2017.
27. Respondent Exhibit 5a is an email from Ms. Redder to Mr. Mertz, dated September 21, 2015.
28. Respondent Exhibit 5b is an email from Mr. Dykhouse to Mr. Mertz, dated October 16, 2015.
29. Respondent Exhibit 5c is an email from Mr. Mertz to Mr. Brillhart, dated January 28, 2016.
30. Respondent Exhibit 5d was not offered.
31. Respondent Exhibit 5e is an email from Ms. Westhouse to Mr. Mertz dated July 19, 2016.
32. Respondent Exhibit 5f is an email from Ms. Tacoma to Mr. Mertz, dated August 16, 2016.
33. Respondent Exhibit 5g is an email from Mr. Mertz to Ms. Tacoma, dated August 16, 2016.
34. Respondent Exhibit 5h is an IEP for A.B., dated April 15, 2016.
35. Respondent Exhibit 5i is a revised IEP for A.B., dated August 29, 2016.
36. Respondent Exhibit 5j is an email from Mr. Fron to Mr. Mertz, dated October 21, 2016.
37. Respondent Exhibit 5k is an email from Ms. Fron to Mr. Mertz, dated November 7, 2016.
38. Respondent Exhibit 5l is an email from Ms. Tacoma to Mr. Mertz, dated November 16, 2016.
39. Respondent Exhibit 5m is an email from Ms. VanDyken to Mr. Mertz, dated November 21, 2016.
40. Respondent Exhibit 5n is an email from Ms. VanDyken to Mr. Mertz, dated November 30, 2016.
41. Respondent Exhibit 5o is an email from Mr. Dykhouse to Mr. Mertz, dated December 14, 2016.
42. Respondent Exhibit 5p is an email from Mr. Dykhouse to Mr. Mertz, dated December 18, 2016.
43. Respondent Exhibit 5q is an email from Mr. Dykhouse to Mr. Mertz, dated January 5, 2017.
44. Respondent Exhibit 5r is an email from Petitioner to Mr. Dykhouse, dated February 13, 2017.
45. Respondent Exhibit 6a is a copy of Petitioner’s Medicaid billings submitted from July 1, 2012 to June 30, 2017.
46. Respondent Exhibit 6b is Byron Center Public Schools Medicaid billings submitted for the 2014/2015 school year.
47. Respondent Exhibit 6c was not offered.
48. Respondent Exhibit 6d is Byron Center Public Schools Medicaid billings submitted for the 2016/2017 school year.
49. Respondent Exhibit 6e is the Kent ISD Medicaid School Based Services Provider Manual.
50. Respondent Exhibit 6f is an email from Ms. Westhouse to Special Education Staff, dated May 29, 2015.
51. Respondent Exhibit 6g is an email from Ms. Westhouse to Special Education Staff, dated October 15, 2015.
52. Respondent Exhibit 6h is an email from Ms. Westhouse to the Special Education Staff, dated November 10, 2015.
53. Respondent Exhibit 6i is an email from Ms. Westhouse to the Special Education Staff, dated March 16, 2016.
54. Respondent Exhibit 6j is an email from Ms. Westhouse to the Special Education Staff, dated November 11, 2016.
55. Respondent Exhibit 6k is the Kent ISD Medicaid School Based Services Form.
56. Respondent Exhibit 6l is the Service Capture Policy.
57. Respondent Exhibit 6m is the Medicaid Administration FAQs.
58. Respondent Exhibit 6n is the Case Management School Based Services Policy.
59. Respondent Exhibit 6o is an email from Mr. Kleff to Ms. Tacoma and the Special Education Staff, dated January 6, 2017.
60. Respondent Exhibit 6p is emails from Ms. Tacoma to Special Education Staff, dated February 4, 2015 through Mary 4, 2015.
61. Respondent Exhibit 7 is a Disciplinary letter, dated January 13, 2017.
62. Respondent Exhibit 8a through P were not offered.
63. Respondent Exhibit 9a is a PowerPoint presentation from February 2013.
64. Respondent Exhibit 9b is an email from Ms. Tacoma to Mr. Mertz dated May 14, 2013.
65. Respondent Exhibit 9c is a Special Education Professional Development sign-in sheet and agenda from January 20, 2014.
66. Respondent Exhibit 9d is a record of Profession Development for the 2014/2015 school year.
67. Respondent Exhibit 9e is an IEP Bootcamp at Kent ISD sign-in sheet, dated October 20, 2014.
68. Respondent Exhibit 9f is a Secondary Transition Compliance Training, dated November 14, 2014.
69. Respondent Exhibit 9g is an email form Ms. Tacoma to Mr. Mertz, dated March 26, 2015.
70. Respondent Exhibit 9h was not offered.
71. Respondent Exhibit 9i is a record of Professional Development for the 2015/2016 school year.
72. Respondent Exhibit 9j is a Special Education Professional Development agenda and sign-in sheet, dated September 2, 2015.
73. Respondent Exhibit 9k is an email from Mr. Dykhouse to Mr. Mertz, dated October 13, 2015.
74. Respondent Exhibit 9l is an invitation from Mr. Dykhouse to Mr. Mertz, dated February 10, 2016.
75. Petitioner Exhibit 9m is an email from Mr. Dykhouse to Mr. Mertz, dated February 24, 2016.
76. Respondent Exhibit 9n is a CI Professional Development agenda and sign-in sheet, dated February 9, 2016.
77. Respondent Exhibit 9o is an email chain between Ms. Tacoma and Mr. Mertz.
78. Respondent Exhibit 9p is an email from Mr. Dykhouse to Mr. Mertz, dated March 28, 2016.
79. Respondent Exhibit 9q is an email from Ms. Anama to Petitioner, dated March 30, 2016.
80. Respondent Exhibit 9r was not offered.
81. Respondent Exhibit 9s is an email from Ms. Tacoma to Mr. Mertz and others, dated May 11, 2016.
82. Respondent Exhibit 9t is an email from Mr. Dykhouse to Mr. Mertz, dated July 20, 2016.
83. Respondent Exhibit 9u is Special Education Staff Professional Development agenda and sign-in sheet, dated August 31, 2016 and Tienet tips.
84. Respondent Exhibit 9v is an email from Ms. Johnson to Mr. Dykhouse and others, dated September 23, 2016.
85. Respondent Exhibit 9w is an email from Ms. Anama to Mr. Dykhouse and others, dated September 23, 2016.
86. Respondent 9x is an email from Mr. Dykhouse to Mr. Mertz, dated October 31, 2016.
87. Respondent Exhibit 9y is an email from Ms. Tacoma to Mr. Mertz, dated November 1, 2016.
88. Respondent Exhibit 9z is an email from Mr. Dykhouse to Mr. Mertz, dated November 22, 2016.
89. Respondent Exhibit 9aa is an email from Mr. Dykhouse to Mr. Mertz, dated November 29, 2016.
90. Respondent Exhibit 9bb is an email from Mr. Dykhouse to Mr. Mertz, dated February 13, 2017.
91. Respondent Exhibit 10a is a Letter from Mr. Macina to Mr. Mertz, dated February 28, 2017.
92. Respondent Exhibit 10b is a letter from Mr. Macina to Mr. Mertz, dated March 17, 2017.
93. Respondent Exhibit 10c is a letter from Mr. Macina to Mr. Mertz, dated March 20, 2017.
94. Respondent Exhibit 10d is a letter from Mr. Macina to Mr. Mertz, dated March 23, 2017.
95. Respondent Exhibit 10e is a letter from Mr. Takens to Mr. Mertz, dated April 27, 2017.
96. Respondent Exhibit 10f is a letter from Mr. Mertz to the Bryon Center Public Schools Board of Education, dated May 3, 2017.
97. Respondent Exhibit 10g is a letter from Mr. Mertz to Mr. Takens, received on April 25, 2017.
98. Respondent Exhibit 10h is a letter from Mr. Macina to Mr. Mertz, dated March 6, 2017.
99. Respondent Exhibit 11 is Byron Center Public Schools Bylaws and Policies 3220, Professional Staff Evaluation.
100. Respondent Exhibit 12 is a Kent County Evaluation Committee Evaluation Model.
101. Respondent Exhibit 13a is the Self-Evaluation completed by Mr. Mertz for the 2011/2012 evaluation.
102. Respondent Exhibit 13b is the Professional Growth Plan for Thomas Mertz for the 2011/2012 evaluation.
103. Respondent Exhibit 13c is the Pre-observation completed by Mr. Mertz, dated November 14, 2011.
104. Respondent Exhibit 13d is the Observation 1 completed by Mr. Joseph on November 14, 2011.
105. Respondent Exhibit 13e is the Post-Observation 1 notes completed by Mr. Mertz.
106. Respondent Exhibit 13f is the Observation 2 completed by Mr. Joseph on April 17, 2012.
107. Respondent Exhibit 13g is the Post-Observation 2 notes completed by Mr. Mertz.
108. Respondent Exhibit 13h Walkthrough 1 for the 2011/2012 evaluation of Mr. Mertz.
109. Respondent Exhibit 13i is the Summary Rating Form for the 2011/2012 evaluation of Mr. Mertz.
110. Respondent Exhibit 14a is the Self-evaluation completed by Mr. Merz.
111. Respondent Exhibit 14b is Advanced Goals developed by Mr. Mertz for the 2012/2013 school year.
112. Respondent Exhibit 14c is the Informal Observation completed by Mr. Joseph, dated October 20, 2012.
113. Respondent Exhibit 14d is the Informal Observation completed by Mr. Joseph, dated March 22, 2013.
114. Respondent Exhibit 14e is the Summative Performance Evaluation for Mr. Mertz for the 2012/2013 school year.
115. Respondent Exhibit 15a is the Performance Self-evaluation completed by Mr. Mertz for the 2013/2014 evaluation.
116. Respondent Exhibit 15b is Evaluation Goals set by Mr. Mertz.
117. Respondent Exhibit 15c is the Informal Observation completed by Mr. Joseph, dated October 30, 2013.
118. Respondent Exhibit 15d is the Informal Observation completed by Mr. Joseph, dated November 12, 2013.
119. Respondent Exhibit 15e is a Pre-observation form completed by Mr. Mertz.
120. Respondent Exhibit 15f is the Observation completed by Mr. Joseph, dated December 16, 2013.
121. Respondent Exhibit 15g is the Observation completed by Mr. Joseph, dated May 5, 2014.
122. Respondent Exhibit 15h is the Post-observation completed by Mr. Mertz.
123. Respondent Exhibit 15i is the Summative Performance Evaluation for the 2013/2014 evaluation.
124. Respondent Exhibit 15j is the Administrator Feedback, dated October 23, 2013.
125. Respondent Exhibit 15k is the Teacher Feedback, dated June 5, 2014.
126. Respondent Exhibit 16a is the Self-Evaluation completed by Mr. Mertz for the 2014/2015 evaluation.
127. Respondent Exhibit 16b is Evaluation goals set by Mr. Mertz for the 2014/2015 evaluation.
128. Respondent Exhibit 16c is Informal Observation completed by Mr. Joseph, dated March 9, 2015.
129. Respondent Exhibit 16d is Pre-Observation Form completed by Mr. Mertz.
130. Respondent Exhibit 16e is the Observation completed by Mr. Joseph, dated October 28, 2014.
131. Respondent Exhibit 16f is the Observation completed by Mr. Joseph, dated February 6, 2015.
132. Respondent Exhibit 16g is the Post-Observation completed by Mr. Mertz.
133. Respondent Exhibit 16h is the Summative Performance Evaluation for the 2014/2015 evaluation.
134. Respondent Exhibit 17a is the Self-evaluation completed by Mr. Mertz.
135. Respondent Exhibit 17b is the Evaluation goals set by Mr. Mertz.
136. Respondent Exhibit 17c is the Informal Observation completed by Mr. Dykhouse, dated October 30, 2015.
137. Respondent Exhibit 17d is Informal Observation 2 completed by Mr. Dykhouse, dated December 3, 2015.
138. Respondent Exhibit 17e is Informal Observation 3 completed by Mr. Dykhouse, dated February 4, 2016.
139. Respondent Exhibit 17f is Informal Observation 4 completed by Mr. Dykhouse, dated February 10, 2016.
140. Respondent Exhibit 17g is Informal Observation 5 completed by Mr. Dykhouse, dated March 23, 2016.
141. Respondent Exhibit 17h is Informal Observation 6 completed by Mr. Dykhouse, dated April 19, 2016.
142. Respondent Exhibit 17i is Pre-Observation completed by Mr. Mertz.
143. Respondent Exhibit 17j is Observation completed by Mr. Dykhouse, dated November 19, 2015.
144. Respondent Exhibit 17k is Observation 2 completed by Mr. Dykhouse, dated February 15, 2016.
145. Respondent Exhibit 17l is Post-Observation completed by Mr. Mertz.
146. Respondent Exhibit 17m is the Summative Performance Evaluation for 2015/2016 school year.
147. Respondent Exhibit 17n is the Administrator Feedback.
148. Respondent Exhibit 17o is Evaluatee Final Evaluation Comments completed by Mr. Mertz, dated June 10, 2016.
149. Respondent Exhibit 18 is Professional Development Plan, dated March 20, 2015.
150. Respondent Exhibit 19a is the Self-Assessment completed by Mr. Mertz for the 2016/2017 Performance Evaluation.
151. Respondent Exhibit 19b is the Goals developed by Mr. Mertz for the 2016/2017 school year.
152. Respondent Exhibit 19c is Informal Observation 1 completed by Mr. Mertz, dated October 5, 2016.
153. Respondent Exhibit 19d is Pre-Observation 1 completed by Mr. Mertz.
154. Respondent Exhibit 19e is Observation 1 completed by Mr. Dykhouse, dated November 14, 2016.
155. Respondent Exhibit 19f is the Post-Observation completed by Mr. Mertz.
156. Respondent Exhibit 19g is Teacher Rebuttal to Observation 1 completed by Mr. Mertz.
157. Respondent Exhibit 19h is a Mid-Year Reflection for the 2016/2017 Evaluation.
158. Respondent Exhibit 19i is Informal Observation 2 completed by Mr. Dykhouse, dated December 8, 2016.
159. Respondent Exhibit 19j is Informal Observation 3 completed by Mr. Dykhouse, dated February 17, 2017.
160. Respondent Exhibit 19k is Pre-Observation 2 completed by Mr. Mertz.
161. Respondent Exhibit 19l is Observation 2 completed by Mr. Joseph, dated November 21, 2016.
162. Respondent Exhibit 19m is Observation 3 completed by Mr. Dykhouse, dated January 25, 2017.
163. Respondent Exhibit 19n is Post-Observation 2 completed by Mr. Mertz.
164. Respondent Exhibit 20 is Professional Development Plan, dated May 31, 2016.
165. Respondent Exhibit 21 is the Schedule Matrix for Mr. Mertz from 2008 through 2017.
166. Respondent Exhibit 22 is an Individualized Education Plan for T.F., dated January 4, 2016.
167. Respondent Exhibit 23 was not offered.
168. Respondent Exhibit 24 is an email chain.
169. Respondent Exhibit 25 is Reading Writing Workshop handouts.
170. Respondent Exhibit 26 is an inventory of the documents boxed from Mr. Mertz’s classroom.
171. Respondent Exhibit 27 is email with Plan of Action attached, dated April 15, 2015.
172. Respondent Exhibit 29 is an email chain between Mr. Dykhouse and Mr. Mertz.
173. Respondent Exhibit 30 is an email from Mr. Dykhouse to Mr. Mertz, dated March 28, 2016.
174. Respondent Exhibit 31 is an email chain between Mr. Dykhouse and Mr. Mertz.
175. Respondent Exhibit 33 is a Syllabus for the Living Skills Class, 2014/2015 school year.
The following exhibits were offered but were not admitted after objection:
FINDINGS OF FACT
Thomas Mertz obtained a business degree from Northwood Institute in 1987. He obtained a teaching degree in 1993 from Grand Valley State University in elementary education with a major in psychology special education. In 2003, he earned a master’s degree from Grand Valley State University in educational technology. Mr. Mertz is a certified teacher in elementary education with endorsements in cognitive impairments and emotional impairments K-12. [Tr. Vol. VI, pg. 1515]
Mr. Mertz began teaching at Bryon Center in the 1993/1994 school year. He was assigned to a mild cognitive impairment classroom in the middle school. He taught there for a period of three years. [Tr. Vol. VI, pg. 1516]
During the 1996/1997 school year, Mr. Mertz began teaching at mild cognitive impaired classroom in the high school at Byron Center. Mr. Mertz obtained tenure at Byron Center schools. [Tr. Vol. VI, pg. 1517]
A mild cognitive impairment (MiCI) classroom is a self-contained classroom for students with a mild cognitive impairment, an IQ between 55 and 70. The students spend the majority of their day in the self-contained classroom. It consists of 12-15 students. The students are in grades 9 through 12. [Tr. Vol. VI, pg. 1517-1520]. The Moderately cognitive impaired classroom (MoCI) is also a self-contained classroom of 12-15 students with an IQ of between 40 to 55. [Tr. Vol. VI, pg. 1522] A resource special education classroom is generally one-hour help to support special education students that have learning disabilities rather than a cognitive impairment. [Tr. Vol, VI, pg. 1523]. Generally, students in the MiCI and MoCI classrooms are not on a diploma track. [Tr. Vol. VI, pg. 1524].
As a special education teacher, Mr. Mertz is part of the special education department. Although Mr. Mertz is the only MiCI instructor, Byron Center High School also has special education resource room teachers and a Moderately Cognitive Impaired (MoCI) classroom teacher.
While teaching at Byron Center, Mr. Mertz has also supervised detention; provided homebound educational services; sponsored the school ski club; coached basketball, bowling, downhill snow skiing and snowshoeing for special Olympics; served as the head of the furniture selection committee; and chaperoned school dances. [Tr. Vol. VI, pgs. 1525-1527]
Beginning with legislation in 2010, Michigan began to institute statutorily required yearly public-school teacher performance evaluations. Mr. Scott Joseph[3], high school principal, began completing evaluations of Mr. Mertz in May 2010. [Tr. Vol. VI, 1531]
The May 2010 teacher performance evaluation consisted of six general areas: Personal Qualities; Professional Qualities; Teacher-Staff Relationships; Teacher Community Relationships; Instructional and Guidance Skills; and Classroom Control and Management. Each general category has several subcategories. The evaluation consists of a rating scale of one to three. A one is exceptional; a two is Satisfactory and a three is Unsatisfactory. The category of Personal Qualities consisted of twelve subcategories. Mr. Mertz was given a score of one in four of the categories and a score of two in the remaining eight. The category of Professional Qualities consisted of six subcategories. Mr. Mertz was given a score of one in three of the categories and a score of two in the remaining three. The Teacher-Staff relationship category consisted of six subcategories. Mr. Mertz received a score of one in four of the subcategories and a two in the remaining two subcategories. The Teacher-Community Relationships consisted of five subcategories. Mr. Mertz received a score of one in four of the categories and a two in the last. The category of Instructional and Guidance Skills consisted of eight subcategories. Mr. Mertz received a score of one in five of the categories and a two in three of the subcategories. The final category of Classroom Control and Management consisted of seven subcategories. Mr. Mertz earned a score of one in six of the seven subcategories and a score of two in the last subcategory. Mr. Joseph specifically noted that Mr. Mertz is an excellent teacher. [Pet. Ex. 180]
In January 2011, the Byron Center Public Schools Board of Education developed a policy for Professional Staff Evaluations. [Resp. Ex. 11] The District uses the Stages model from Charlotte Danielson rubric. [Tr. Vol. I, pgs. 30-31]. The District has trained its leadership team on the evaluation process. Mr. Joseph trained the teachers on the process. Each staff member was given a hardcopy of the rubric and an electronic copy. Mr. Joseph also provided tips to the staff regarding the process. [Tr. Vol. I, pgs. 31-32]
As part of the 2011/2012 evaluation process, Mr. Mertz completed a Self-Evaluation using the evaluation rubrics and a Professional Growth Plan consisting of three goals created by Mr. Mertz. The evaluation consisted of two formal observations and one walk-through observation. [Resp. Ex. 13A and B]
The Self-Evaluation is completed at the beginning of the school year by the teacher. It allows the teacher to see the rubric and refresh their memory of the rating scales. By having the teacher complete a self-evaluation, it gives the teacher the critical attributes that should be in a classroom. It gives the supervising staff an opportunity to see each teacher’s self-reflection. [Tr. Vol. I, pg. 34]
On November 14, 2011, Mr. Joseph completed a formal observation of Mr. Mertz’s teaching as part of the evaluation process. The observation process began with Mr. Mertz completing a Pre-Observation Form explaining which part of the curriculum the lesson related to; how the learning fits in the sequence of learning for the class; a brief description of the students in the class; what the teacher wants the student to understand from the lesson; and how will the teacher engage the students. [Resp. Ex. 13C] Mr. Joseph completed an Observation Form. The Observation Form is broken down into the same four domains and elements as the Final Evaluation. The scoring is also consistent with the final evaluation. For each element in this evaluation, Mr. Mertz was rated as either highly effective or effective. There were some elements that were not observed during this particular lesson. Mr. Joseph made a couple of specific comments. The first in relationship to Domain I: Classroom environment, “You have a nicely run classroom. You organize it in a way that it is discussion based, and that students can interject.” Domain III: Professional Responsibilities: “You do a nice job balancing all of the needs of your students and the curriculum you teach. I want to follow up on goals and such. I wonder about deadlines and IEPs, so just something to watch this year. I am sensitive now to the need that we have all our ducks in a row”. Mr. Mertz then completed a Post-Observation Form. [Resp. Exs. 13D and 13E]
It was standard procedure that Mr. Joseph and Mr. Mertz would have met after the observation to discuss. [Tr. Vol. I, pg. 38]
A second observation was completed on April 17, 2012. Mr. Mertz completed a Post-Observation Form. Mr. Joseph competed a walk-through observation on May 21, 2012. [Resp. Exs. 13F, 13G, and 13H]
A summary Rating Form was completed on May 25, 2012. The first domain Classroom Environment consists of eight elements. Mr. Mertz received four highly effective ratings and four effective ratings for the first domain. Mr. Joseph noted that, “You do a nice job with your students. They respect you and have fun with you. You are patient and kind with them”. The second domain consists of 25 elements. Mr. Mertz received a rating of highly effective on two of the elements; an effective on 18 elements and a minimally effective rating on two elements. The minimally effective rating was on the alignment to the curriculum. Mr. Joseph noted, “This is an area that I want to make a goal. Tom and Scott need to determine what is the end goal and look at accountability and data to determine areas of need in the curriculum. Scott with work with Erin to help us to determine our direction in this area so that we can support Tom and help with the appropriate alignment.” The second minimally effective was in regard to assessments and standards. Mr. Joseph noted “Assessment criteria and standards have been developed, but they are either not clear or have not been clearly communicated to students. This is an area that relates to the goal above. Once this is settled, the communication of the direction will follow”. The third domain consists of 22 elements that Mr. Mertz received an effective rating for each. The fourth domain is Student Achievement Growth consisting of one element for which Mr. Mertz was rated effective. Mr. Mertz’s total score was 85.71% effective; 10.71% highly effective; and 3.57% minimally effective resulting in an overall rating of Effective. [Resp. Ex. 13I; Tr. Vol. I, pgs. 42-46]
In June 2012, Mr. Joseph implemented a uniform grading policy to take effect in the 2012/2013 school year. Mr. Mertz received an email with this information. [Resp. Ex. 3H]
During the 2012/2013 school year, Mr. Mertz was evaluated as a tenured teacher off-cycle, meaning that because he had an effective evaluation the year before there was no need for formal observations during the 2012/2013 evaluation cycle. The teacher would be subject to informal observations. [Tr. Vol. I, pg. 48]
Again, as part of the evaluation process, Mr. Mertz completed a self-evaluation and developed personal goals. Mr. Mertz developed three goals for himself. The first was to assess current reading skills and implement evidence-based literacy instruction to improve speed and fluency. [Resp. Ex. 14A]
On October 30, 2012, Mr. Joseph completed an informal observation of Mr. Mertz for approximately five minutes. On March 22, 2013, a second informal observation was completed lasting about 13 minutes. During this observation, Mr. Joseph noted that Mr. Mertz was doing most of the talking rather than permitting the students to engage in deeper discussion. Mr. Joseph provided an example for Mr. Mertz to better utilize worksheets. This was Mr. Joseph’s attempt at coaching Mr. Mertz. [Resp. Ex. 14D/ Tr. Vol. Vol. I, pgs. 51-52] Mr. Joseph noted that this was an area of concern raised in the 2011/2012 evaluation. [Tr. Vol. I, pgs. 54-55]
A Summative Performance Evaluation was completed in June 2013. The evaluation consists of four domains. The first domain is Classroom Environment consisting of six elements. Mr. Mertz was rated as highly effective for one element and effective for four elements. He also received one rating of minimally effective for the element three Managing Classroom Procedures: Management of Instructional Groups. Mr. Joseph noted that “small groups are only partially engaged while not directly working with the teacher”. For a final domain comment, Mr. Joseph noted “Tom runs a smooth room given the students’ needs. The class is designed in a way that students transition smoothly. One area that I’d like to push would be the group work. With a driving question, group work could become more relevant to students and drive some strong conversation among students.” [Resp. Ex. 14E]
The second domain consisted of 12 elements. Mr. Mertz was rated as effective in 10 of the elements and minimally effective on two of the elements, element 11 and 12. For element 11 Alignment to Curriculum: Lesson Clarity and Communication, Mr. Joseph noted “Lesson goals are not clear to students, and/or they are not told how goal attainment will be measured. At the beginning of each lesson, it is important to state the objective, why it is important, and how students will be assessed”. For element 12: Designing Coherent Instruction: Learning Activities, Mr. Joseph noted “Learning activities are appropriate but lack the connection to research and how students learn best”. As a final domain comment, Mr. Joseph stated, “Tom is looking at how to best encourage students who sometimes do not want to engage or are not able based on cognitive and developmental abilities. These techniques include ideas such as lit circles, inquiry-based learning with driving questions, etc.” [Resp. Ex. 14E]
The third domain: Professional Responsibilities consisted of nine elements. Mr. Mertz was rated as effective on eight of the elements. He was rated as minimally effective on element 24: Professional Behavior: Enhancement of Content Knowledge and Pedagogical Skill. Mr. Joseph stated, “The teacher participates in professional activities when required or when provided during school hours and paid by the school district. The teacher contributes in a limited fashion to educational professional organizations but doesn’t make much use of the materials received. Looking at this year’s goals, this area would be short of effective as I have not seen the effort to really dive into these areas”. As a final domain comment, Mr. Joseph noted “Tom is very willing to work with staff, help out where needed, and is reliable all the time. I appreciate all that Tom does for our kids and staff”. Mr. Mertz received an effective rating for the single element in the final domain. [Resp. Ex. 14E]
Mr. Mertz’s final rating for the 2012/2013 evaluation was 14.29% minimally effective, 82.14% effective and 3.57% highly effective. This resulted in an overall rating as effective. [Resp. Ex. 14E / Tr. Vol. I, pg. 57] There was an increase in the minimally effective ratings signifying more concerns during this school year. [Tr. Vol. I, pg. 57]
The 2013/2014 evaluation began with Mr. Mertz completing a Self-evaluation and developing his own professional goals. [Resp. Exs. 15A and 15B] This evaluation included formal and informal observations.
Prior to 2013, Mr. Lake, assistant principal, brought in Evidence Based Literary instruction (EBLI) for the English and Special Education Departments. Mr. Mertz was trained in EBLI. [Tr. Vol. I, pg. 66]
Mr. Mertz and Mr. Joseph met on October 23, 2013 to discuss standards and goals. [Resp. Ex. 15J]
The first observation of the 2013/2014 school year was an informal observation completed on October 30, 2013. Again, Mr. Joseph made a coaching suggestion by making a specific recommendation to websites for teaching ideas. Mr. Joseph also noted several questions including: “Do you have a rubric to this assignment? Have you seen the English Rubric for writing? “You could have connected this assignment to the common core by doing the following…” [Resp. Ex. 15C]
A second informal observation was completed on November 12, 2013. Mr. Joseph initially intended this observation to be a formal observation but changed the observation to an informal so that he could observe a lesson or discussion or group work otherwise the rubric would have been bare as he noted to Mr. Mertz. [Resp. Ex. 15D / Tr. Vol. I, pg. 65]
The next observation was a scheduled formal observation for December. Mr. Mertz completed a Pre-Observation Form explaining the lesson plan. This was an EBLI lesson. Mr. Joseph completed the formal observation on December 16, 2013. Mr. Joseph rated Mr. Mertz as effective in most observed areas. He was rated as minimally effective in four areas under Teacher Instruction. Mr. Joseph noted that, “Lesson goals are not clear to students, and/or they are not told how goal attainment will be measured. Missing today was an introduction to “why” you are doing EBLI and how this would be assessed. This is easily corrected with a daily objective and relevance focus in intro and closing”. Mr. Joseph also stated, “Teacher occasionally models thinking for processing information and strategy use but does not have students use same strategy to verbalize their thinking. Teacher frames some questions designed to promote student thinking but only a few students are involved. Questioning needs a little work. Your questions lead them to an answer. If you can throw out a question to get them to really think about it and to make sure they are sure about the answer by the time they give it. If they are not sure, you can push for clarity to get them to that higher-level thinking and learning”. In area 2.11, Mr. Joseph, again rating Mr. Mertz as minimally effective, stated, “Lesson and unit plans are limited instructional strategies, and some are not suitable to the content. Heavily (sic) reliance on familiar strategies are what the teacher uses. This is where some group work, thinking strategies, Think-Pair-Share, or having them explain the process, student choice, etc. would be built in. We can talk through this. There are some things that you could have your kids do”. [Resp. Ex. 15F/ Jt. Ex. 19]
A second formal observation was completed on May 5, 2014. In this observation, Mr. Mertz was generally rated as effective. He received one area as highly effective and four areas as minimally effective. In area 2.2, Mr. Joseph noted, “The teacher occasionally conveys high expectations for groups of students and occasionally differentiates curriculum and instruction to ensure the success of all students. This is one area I want to push on. Let’s talk about how to make individual lesson plans for those who need it. Today was a good group discussion, but let’s talk about the follow up work. Can some do a project and other would do more step by step problems?”. In area 2.7 Mr. Joseph noted, “Some of the materials and resources support the instructional goals and some engage students in meaningful learning. This is another area that could be improved. There are so many web materials that would be available to lead this instruction. Such as gmbuypower.com to design their own cars and talk about the options. They can actually see it being built vs. paper/pencil”. Mr. Mertz completed a Post-observation form following the observation. [Resp. Exs. 15G and 15H and Jt. Ex. 19].
The 2013/2014 evaluation was completed with a Summative Performance Evaluation in June 2014. For this evaluation, Mr. Mertz received a highly effective rating for three of the elements and an effective rating for two of the elements in the first domain. He received a minimally effective rating for element 3: Managing Classroom Procedures: Management of Instructional Groups. Mr. Joseph noted that “tasks for group work are partially organized, resulting in off-task behavior when teacher is involved with one group”. [Resp. Ex. 15I]
Mr. Mertz received an effective rating for ten of the elements in the second domain. He received a minimally effective rating for two of the elements. Element 8 Holding High Expectations for All Learners: Differentiation for Individual Student Achievement. Mr. Joseph noted that, “the teacher occasionally conveys high expectations for groups of students and occasionally differentiates curriculum and instruction to ensure the success of all students”. The second minimally effective was for element 14 Designing Coherent Instruction: Engaging Students in Learning. Mr. Mertz received an effective rating for the remaining domains. The overall evaluation was 10.71% minimally effective; 78.57% effective and 10.71% highly effective. [Resp. Ex. 15I]
Mr. Mertz and Mr. Joseph met regarding this evaluation. Mr. Mertz indicated that he would work on the areas identified by Mr. Joseph. [Resp. Ex. 15K]
On August 25, 2014, Mr. Mertz attended a District sponsored training on instructional delivery using the Reading Writing Workshop model. [Resp. Ex. 9D]
The evaluation process for the 2014/2015 school year again began with Mr. Mertz completing a self-evaluation and developing goals. [Resp. Exs. 16A and 16B]
A Pre-observation form was completed by Mr. Mertz explaining his lesson plan for a scheduled formal observation. The formal observation was held on October 28, 2014. Mr. Mertz received an effective rating for two of the five elements rated. He received a minimally effective rating for the remaining three elements under the first domain. He received a minimally effective rating for four of the elements and an effective rating for five of the elements in the second domain. For area 2.6 Mr. Joseph noted, “Too much whole group discussion today without information” and for area 2.8, “Only minimal thinking done by students, allowing most to be passive or merely complaint” and for area 2.10, “application of thinking process for students was missed here. They need to do more thinking, talking, discussing and writing”. [Resp. Ex. 16E and Jt. Ex. 20]
A second observation was completed on February 6, 2015. Mr. Mertz received effective rating for all the elements of the first domain and for two of the elements in the second domain. Mr. Mertz received a minimally effective rating for five of the elements in the second domain. Mr. Mertz completed a Post-observation form concerning this lesson. [Resp. Ex. 16F and Jt. Ex. 20]
An informal observation was completed on March 9, 2015. [Resp. Ex. 16C] Mr. Joseph testified that although Mr. Mertz’s evaluation was effective he had concerns about Mr. Mertz’s ability. Specifically, he had not seen any change based on his individual conversations and coaching. An example would be Think-Pair-Share or management groups. A “soft plan” was created to help Mr. Mertz improve. [Tr. Vol. I, pgs. 105-106]
The “soft plan” was developed on March 20, 2015. This plan was developed after conversation with Ms. Tacoma, Mr. Joseph and Mr. Mertz. The plan consisted of five outcome goals. As part of the plan, Mr. Joseph included some resources for Professional Development including books and other staff for assistance. One of the steps outlined in the Plan was to develop and implement a curriculum and lessons that put relevance before content. For Math, it was to develop an economy in the classroom built around a job and earning money. For Reading and Writing, it was to develop a Reader’s/Writer’s workshop model in the classroom. The Soft Plan had a timeline of the start of the year, 2016 or sooner. [Resp. Ex. 18]
There was confusion if the start of the 2016 year meant January 2016 or September 2015, the beginning of the 2016 school year.
A Summative Performance Evaluation was completed in June 2015. Mr. Mertz received two highly effective and four effective ratings for the first domain. He received ten effective ratings in the second domain. He received two minimally effective ratings in the Teacher Instruction domain for elements 11 and 14. For element 11 Mr. Joseph noted, “This is an area that needs some work. When observed, there is not a strong connection with the learning objective with the learning activities. The key to this area is to have students have a strong understanding of what they are going to learn, how they are going to learn it, and know what type of assessment will prove if they know it or not. It also has an aspect of formative assessment to wrap this area up. In element 14, it was noted, “In the observations this year, this was an area that was consistently low in engagement. Familiar teaching techniques are what we see in the classroom. Tom leading a whole group lesson with him addressing them in an audio format is the typical lesson. There are rarely strategies uses such as wondering, Think-Pair-Share, debate, discuss, write before answering, etc.” For the third domain, Mr. Mertz was rated effective in every element except element 21. Mr. Mertz had a total of 7.14% highly effective, 82.14% of effective and 10.71% as minimally effective resulting in an overall rating of effective. He testified that the evaluation was originally minimally effective after discussions with Mr. Mertz and Ms. Tacoma he changed the evaluation to effective but had concerns. [Resp. Ex. 16H and Tr. Vol. I, pg. 106]
On September 2, 2015, Mr. Mertz attended a 6-hour training program on the Tienet IEP Medicaid process. [Resp. Exs. 9J and 9K]
In the 2015/2016 school year, Jeff Dykehouse[4] began as an assistant principal. He was responsible for the English Department and the Special Education Department. The district also implemented the Reading Writing Workshop. Because of his role, Mr. Dykehouse became the administrator responsible for the evaluation of Mr. Mertz and the implementation of the soft plan. [Tr. Vol. I, pgs. 116/117] Mr. Dykehouse was trained by the District on the evaluation process. Specifically, Mr. Joseph went through the Stages rubric. The process of conducting evaluations as determined by the School District including setting up a pre-observation, doing an observation, providing feedback, going through each portion of the rubric that is in Stages and discussing each part of the rubric and determining a consistent basis for applying that rubric with the teaching staff. [Tr. Vol. II, pgs 455/456]
Upon assuming his duties, Mr. Dykehouse was informed of Mr. Mertz’s soft plan and goal area. [Tr. Vol. II, pg. 459].
The District had implemented a classroom library in all of the language arts classrooms. The District made money available for the purchase of books in the classroom to improve reading engagement. Mr. Mertz and Mr. Dykehouse visited other classrooms that had reading levels similar to his students to obtain ideas on books that would engage his students at their levels. [Tr. Vol. II, pg. 485]
After visiting the classrooms, Mr. Mertz was encouraged to place a book order to purchase books for his classroom library. Mr. Mertz did not submit a book order until February 2016 at which time the budget for books had already been used. Ms. Anama then worked with Mr. Mertz to obtain books from the Kent District library. [Tr. Vol. II, pg. 543]
On October 29, 2015, Mr. Mertz attended a District sponsored training regarding the implementation of the Reading Writing Workshop. [Resp. Ex. 9K
Mr. Dykehouse would conduct both formal and informal observations as part of the overall evaluation system. A formal observation is lengthier. It generally last for an entire class period. The teacher will submit a pre-observation lesson plan. The feedback is set up in Stages. The evaluator is looking at different parts of the rubric. The feedback requires ratings and specific descriptions. An informal observation is more of a walk-through. Rather than specific ratings, it is a check-list with comments. After the completion of an informal evaluation, Mr. Dykehouse would provide the teacher with some coaching points. [Tr. Vol. II, pgs. 467-472]
For the 2015/2016 performance evaluation again began with Mr. Mertz completing a self-evaluation and developing professional goals. One of Mr. Mertz’s goals was to develop a classroom economy that encourages students to manage their money properly and to evaluate their decision about what to spend money on. Mr. Mertz named this program “Mertz Moolah”. This was also included as a goal in his Soft Plan. [Resp. Exs. 17A and 17B]
Mr. Dykehouse’s first observation of Mr. Mertz was an informal observation completed on October 30, 2015. The lesson was a first attempt of the new Reader’s Workshop implemented by the District. Mr. Merz was trained in the method by the District. Mr. Dykehouse rated Mr. Mertz as minimally effective for two of the elements in the first domain. Mr. Mertz was rated as minimally effective in four of the elements in the second domain. He was rated effective for the remaining elements. Mr. Dykehouse noted that Mr. Mertz needed to make the mini-lesson of the Reader’s Workshop a daily routine. [Resp. Ex. 17C and Jt. Ex. 21]
A formal observation was held on November 19, 2015. As part of the observation process, Mr. Mertz completed a Pre-Observation Form explaining his lesson plan. This observation was on a Vocational Language Arts class. For the first domain, Mr. Mertz was rated as effective for four of the elements and minimally effective for elements 1.4 and 1.5.
For the second domain, Mr. Mertz was rated as effective for six of the elements and minimally effective for four of the elements. There were no ratings for the final two domains. As comments, Mr. Dykehouse noted that more students could be engaged in learning if Mr. Mertz allowed the students to share an answer with a partner before asking the whole group. Also, he noted that independent reading needed to be worked into the lesson to allow the students to work on their own reading skills. [Resp. Ex. 17J and Jt. Ex. 21]
Mr. Dykehouse testified that again, Mr. Mertz did not utilize Think-Pair-Share depriving all students of the ability to participate in the lesson. [Tr. Vol. II, pg. 499]
Mr. Dykehouse shared his notes and observation ratings with Mr. Mertz. Mr. Mertz completed a Post-Observation form as part of the observation. [Resp. Ex. 17L]
The next informal observation occurred on December 3, 2015. During this observation Mr. Dykehouse noted, “This lesson contained some parts of an effective mini-lesson.” And, “Mini-lesson did not contain an actual lesson prior to the reading.” Mr. Dykehouse testified during this observation, he did not observe key components of the Reading Writing Workshop model. He offered coaching points for going forward implementing the Reading Writing Workshop model. [Resp. Ex. 17D/ Tr. Vol. II, pgs. 474/475]
A third informal observation was held on February 4, 2016. This observation occurred during a vocational math lesson. Mr. Dykehouse noted that, “the teacher was working with one student on a math packet, it took other students several minutes to get their work out and begin-teacher may need to specify the desired behaviors to the whole group at the beginning (working on packet)”. Mr. Dykehouse also noted that language arts objectives displayed but did not see math objectives. He also noted that there was a chart for the Mertz Moolah on the front board, he wondered if this had been implemented, how it was going and indicated that he would like to see it in action. [Resp. Ex. 17E]
The Mertz Moolah program was an element of soft plan goals as well as Mr. Mertz’s professional goals for the 2015/2016 school year. It had not been implemented as of the February 4, 2016 date.
A fourth informal observation was held on February 10, 2016. This observation occurred during a vocational language arts lesson. Mr. Dykehouse noted that Mr. Mertz did not utilize the Reader’s Workshop model. He also noted that the classroom library was starting to come to life in the back of the room. He inquired if storage bins were needed and if Mr. Mertz had placed a book order yet. [Resp. Ex. 17F]
A second formal observation was held on February 15, 2016. During this observation, Mr. Mertz was rated as effective for three of the elements and minimally effective for three of the elements in the first domain. He was rated as effective for eight of the elements and minimally effective for four of the elements in the second domain. [Resp. Ex. 17K]
During this observation, Mr. Dykehouse noted again that Mr. Mertz failed to utilize the Workshop model. As a result, the teacher did not engage the students in the lesson. The students were passive as the teacher did all the sharing. By failing to utilize the Workshop model, the students did not have an opportunity to think more critically about the lesson. Mr. Dykehouse specifically stated that the teacher did not utilize the Reading Writing Workshop model as expected and instead returned to familiar strategies that he had used in the past. [Jt. Ex. 21]
A fifth informal observation was held on March 23, 2016. Mr. Dykehouse observed Mr. Mertz read a chapter from a novel to the class for 10 minutes. He noted that the students appeared to be focused during the lesson. Mr. Dykehouse noted that Mr. Mertz did a minor mini-lesson. This was not a true mini-lesson utilizing the Reader’s Workshop model. [Resp. Exh. 17G / Tr. Vol. II, pgs. 487/488]
On March 26, 2016, Mr. Dykehouse notified Mr. Mertz that the District would be hosting a Reading Writing Workshop including a workshop foundations strand on August 16 and 17, 2016 that Mr. Mertz would be able to attend. On May 11, 2016, Kari Anama, Ex. Director of Instructional Services sent an email to assorted staff including Mr. Mertz regarding the Reading Writing Workshop scheduled for August 16 and 17, 2016. On July 20, 2016, Mr. Dykehouse again notified Mr. Mertz of the Reading Writing Workshop scheduled for August 16 and 17, 2016. Despite his struggles in implementing the Reading Writing Workshop, Mr. Mertz chose not to attend this workshop. [Resp. Exs. 9P/ 9R and 9T]
On August 31, 2016, Mr. Mertz attended Professional Development concerning IEPs and the Tienet system. This training included specific information regarding the monthly billings for Medicaid. [Resp. Ex. 9U]
A sixth informal observation was held on April 19, 2016. It is highly unusual to conduct six informal observations. Mr. Dykehouse conducted six informal observations because he was not observing any expected improvements in Mr. Mertz’s teaching performance. [Tr. Vol. II, pg. 491]
A Summative Performance Evaluation was completed in June 2016. Mr. Mertz was rated as effective for five of the elements in the first domain. He was rated as minimally effective for element six in the first domain. Mr. Dykehouse noted that Mr. Mertz’s response to off-task behavior is inconsistent. [Resp. Ex. 17M]
As part of the Summative Evaluation, Mr. Mertz was rated as effective for nine of the elements in the second domain. He was rated as Minimally Effective for three of the elements. Mr. Dykehouse noted that Mr. Mertz does not effectively engage students in learning. He noted that if Mr. Mertz would build more relevance in the curriculum, the students would become more engaged. He again pointed out that the Reading Writing Workshop model would foster a classroom of engagement and again stressed using the Think-Pair-Share. Mr. Dykehouse indicated that Mr. Mertz needed to utilize new pedagogical skills that were being used in the District such as the Reading Writing Workshop model. [Resp. Ex. 17M]
For the third domain, Mr. Mertz was rated as effective for seven of the elements and minimally effective for two of the elements. For the final domain, Mr. Mertz was rated as effective. Mr. Mertz’s final evaluation was 78.57% Effective and 21.43% Minimally Effective. Mr. Mertz’s was rated as Minimally Effective. [Resp. Ex. 17M / Tr. Vol. II, pgs 524/526]
Mr. Dykehouse met with Mr. Mertz on June 8, 2016 to go through the Summative Evaluation. On June 10, 2016, Mr. Mertz submitted written comments concerning the evaluation. As part of his comments, Mr. Mertz requested that he be given an opportunity to observe other MiCI classrooms. The District arranged for Mr. Mertz to observe MiCI teachers from other districts. [Resp. Ex. 17O]
Because Mr. Mertz was rated as Minimally Effective, a Professional Development Plan (PDP) was created. The first goal was to address the minimally effective rating for element 6, 14 and 16: Engaging Students in Learning. The goal was that Mr. Mertz would manage the classroom to encourage all students to be intellectually engaged in the content through relevant activities. The teacher will encourage and model higher level thinking skills for students to process the information on a deeper level and will respond to off-task behavior as it occurs. The PDP included a teacher plan consisting of specific goals and evidence. The PDP specifically included the use of Mertz Money classroom economy and Think-Pair-Share model. [Resp. Ex. 20]
The PDP included a second goal to address Element 17: Knowledge of Content Related Pedagogy. The goal was that Mr. Mertz would consistently employ new pedagogical practices that reflect current research from past professional development opportunities. Mr. Mertz will utilize the Reading Writing Workshop model that is being used across the district. The third goal area addressed element 21: Communication with and Engagement of Families in the Instructional Program and with staff. This particular goal included that Mr. Mertz would send a classroom “newsletter” to parents at least once per semester talking about the classroom. [Resp. Ex. 20]
For the 2016/2017 school year, Mr. Dykehouse remained as the individual responsible for Mr. Mertz’s evaluation. This evaluation began with the self-assessment completed by Mr. Mertz and the development of his goals. The first was to Use Schoology to communicate effectively specifically use Schoology to post daily work assignments and schedules to help students understand the curriculum and assignments. The plan to achieve the goal included to post weekly folders that have the class assignments and expectations for the week. The second goal was to help students develop an interest in reading specifically to give students ample opportunity to read books of interest and help them learn ways to evaluate whether a book is right for them and to use the lessons in the reading workshop to help student understand strategies for picking a good book. Mr. Mertz identified the Reading Workshop Readworks, and Readworks digital classroom library or access to different books. [Resp. Exs. 19A and 19B]
An Informal observation was conducted on October 5, 2016 of a language arts lesson. During this observation, Mr. Dykehouse noted that Mr. Mertz conducted a mini-lesson using the Reading Writing Workshop model. [Resp. Ex. 19C]
A formal observation was conducted on November 14, 2016. Mr. Mertz completed a Pre-observation form. The observation occurred during a Vocational Language Arts lesson. Mr. Mertz was rated as effective for all six elements of the first domain. For the second domain, Mr. Mertz was rated as effective for seven elements. He was rated as minimally effective for three of the elements and ineffective for element 2.10. Mr. Dykehouse noted, “ineffective use of Think-Pair-Share teaching model which is a goal in the teacher’s PDP”. Additionally, he stated that “the teacher is developing his skills with Reading Workshop but still has room for growth”. Mr. Mertz completed a Post-Observation Form. [Resp. Exs. 19D/ 19E / 19F and Jt. Ex. 22]
Mr. Mertz submitted a written rebuttal in response to the ratings issued by Mr. Dykehouse for the November 14, 2016 Observation. [Resp. Ex. 19G]
Mr. Mertz and Mr. Dykehouse met on November 16, 2016 to discuss the post observation. [Resp. Ex. 2D]
On November 21, 2016, Mr. Joseph conducted an Observation of Mr. Mertz. This was at the request of Mr. Dykehouse. Mr. Dykehouse wanted a second opinion concerning the things that he was observing in the classroom. Mr. Joseph observed a Language Arts lesson. Mr. Joseph rated Mr. Mertz as effective for four of the elements in the first domain and as minimally effective for element 1.2. Mr. Joseph did note that there was no group work and that there should have been a ‘Think-Pair-Share’. For the second domain, Mr. Joseph rated Mr. Mertz as effective for five of the elements. He was rated as minimally effective for four of the elements and ineffective for elements 2.10 and 2.11. As comments, Mr. Joseph noted “The teacher communicates the importance of the work but with little conviction and only minimal apparent buy-in by students. Instructional goals and activities, interactions and the classroom environment convey inconsistent expectations for student achievement. The vocabulary was a miss with activities as students looking up definitions is not as powerful as reading in context. “Words in Context” is a goal for ELA. No use of student process through writing or discussion. This is marked down because of not using the strategies discussed. The pedagogical practices lack inquiry today, student processing information and reading workshop. These were a miss.” [Resp. Exs. 2D / 19L and Jt. 22]
Mr. Mertz submitted a written rebuttal disagreeing with the observation ratings. [Resp. Ex. 19N]
An Informal Observation as completed on December 8, 2016 of a vocational math class. Mr. Dykehouse noted that the students participated in several effective group activities. Students had a chance to collaborate before having to share in class. [Resp. Ex. 19I]
On January 25, 2017, Mr. Dykehouse completed an Observation of a Vocational Math lesson. Mr. Mertz was rated as effective for four of the elements in the first domain and minimally effective for two of the elements. For the second domain, Mr. Mertz was rated as effective for seven elements, minimally effective for two elements and ineffective for three elements. Mr. Dykehouse noted, “Lesson plans are not structured or logically sequenced and are unrealistic in achieving the learning outcomes. The teacher expected students to be able to handle too many different scenarios within the Banzai Math curriculum and student engagement dropped off after the first scenario or two. This would have likely been much more successful if the classroom economy project was up and running all year. Students would likely have been able to handle this activity if they had learned about it all year and had chances to practice it. There was also no reflection at the end of the class period, students simply got up and left the room at 8:55.” Most of the questions asked by the teacher were lower-level thinking skills – what’s a promotion? What’s a bonus? What does net pay mean? Very limited higher-level questioning techniques by the teacher. There is a need to go deeper with questioning- What skills might an employee show to earn a promotion (maybe even do a role play and have students participate). The Mertz Moolah classroom economy has not started yet this year. This was an expectation from last year and in the improvement plan. With a classroom economy, the students could have gone through scenarios like this one at a time really dive deep. Had this been happening all year, this activity would likely have been more successful because students would have had practice with these types of scenarios for months”. [Resp. Ex. 19M and Jt. 22]
In February 2017, a Mid-Year Reflection was completed. As part of the Mid-Year Reflection, Mr. Mertz was moved from Minimally Effective to Ineffective based on classroom observations, staff discipline and feedback from administration. [Resp. Ex. 19H]
In the Mid-Year Reflection, Mr. Dykehouse noted that for element 2.8 Designing Coherent Instruction: Engaging Student in Learning, Mr. Mertz was rated as Ineffective stating, “Few students are intellectually engaged in the lesson. Lesson Plans are not structured or logically sequenced and are unrealistic in achieving the learning outcomes. Lack of warm-up and reflection time for students to prepare and make connections to the learning”. Element 2.10 was rated as Ineffective noting, “The teacher demonstrates limited knowledge of how to apply thinking and learning processes and strategies, and/or does not model or teach them, and/or does not require students to use them. Lower level thinking and learning processes characterize classroom instruction and assignments. The teacher’s Think-Pair-Share techniques have been ineffective- either not being used or not using it with higher level questions- has used for recall questioning.” [resp. Ex. 19H]
For element 2.11 Demonstrating content knowledge and Pedagogical Skill: Knowledge of Content Related Pedagogy, Mr. Mertz was rated as ineffective noting, “the teacher displays little understanding of pedagogical issues involved in student learning of the content. Reading Workshop has been ineffective in its use – the teacher is not successful in tracking student progress in reading. Classroom economy is not being used by the teacher”. [Resp. Ex. 19H]
For Communicating with Families: Communication with and Engagement of Families in the Instructional Program, Mr. Mertz was rated as ineffective noting that, “the teacher makes no attempt to engage families in the instructional program and seldom works with families to develop interventions that will solve problems or challenges related to student learning, behavior, or progress, and/or is ineffective in doing so. Lack of communication with parents- no newsletter first semester. [Resp. Ex. 19H]
Stewardship: Professional Engagement, Mr. Mertz was rated as ineffective noting, “the teacher engages in practices that are self-serving. The teacher willfully rejects school district policies. Discipline incident is evidence of teacher violating district policy. [Resp. Ex. 19H]
Professional Behavior: Professionalism, Mr. Mertz was rated as ineffective noting that “teacher displays dishonesty in interactions with colleagues, students, and the public. Discipline incident is evidence of dishonesty with administration. [Resp. Ex. 19H]
For Maintaining Accurate Records – Manages Student Information Systems, Mr. Mertz was rated as ineffective noting that, “the teacher does not have a systematic way of gathering, recording, and providing feedback to students. Record-keeping systems are in disarray. All four students in his Living Skills earned a CR first marking period with no assignments entered. These 4 students then earned a 70% second marking period again with no assignments entered. Students should not be earning CR/NC- should be earning an actual grade per their IEPs. [Resp. Ex. 19H]
Mr. Mertz was rated as Minimally Effective for elements 1.3 and 2.6. Again, stressing the lack of a proper Think-Pair-Share, no classroom economy and lack of depth in the Reading Workshop models. [Resp. Ex. 19H]
An informal observation of a vocational math lesson was held on February 17, 2017. Mr. Dykehouse noted that the objectives were displayed in Schoology but not met. One objective listed was TPS-What are the advantages and disadvantages of using an ATM card? This was not observed but would have been an engaging question for students”. [Resp. Ex. 19J]
In November 2013, Mr. Joseph notified all high school staff, including Mr. Mertz, that High School Leadership would be developing a uniform grading system. A survey was sent to all staff concerning the manner in which they grade. In January 2016, Mr. Joseph notified all staff regarding the uniform grading policy. In February 2016, Mr. Joseph notified all staff, including Mr. Mertz, that all staff would comply with the uniform grading policy unless each staff member contacted Mr. Joseph and a specific exception was made. Specific staff or departments, i.e. Art, did contact Mr. Joseph and exceptions were made in certain circumstances. Mr. Mertz never requested nor was granted any exception from the grading policy. [Resp. Exs. 3I /3J / 3K and 3L]
The grading policy required actual letter grades for all classes unless a specific exception was made to permit credit/no credit. The uniform grading policy had a specific weight for the calculation of semester grades. [Resp. Ex. 3L]
In January 2014, Mr. Mertz reported letter grades for all students in his Living Skills class and Vocational Math class. He gave credit/no credit in his Vocational Development, Vocational Skills and People skills classes. [Resp. Ex. 3B]
For the first semester of the 2015/2016 school year, Mr. Mertz awarded letter grades in his Vocational Language Arts class, Vocational Math class, Living Skills class, World History, Algebra II, Biology, English Geometry, Intro to Entrepreneurship, Personal Finance and Science. He gave credit in his Vocational Skills class. [Resp. Ex. 3B]
For the second semester of 2015/2016, he again awarded letter grades in Vocational Language Arts class, Vocational Math class, Living Skills class, U.S. History, World History, Pharmacy Tech, Health, English, Government, Medical Terminology, Intro to Entrepreneurship, Intro to Marketing, Career Planning, Intro to Business, Geometry, American Sign Language, Finance and Science. He awarded credit/no credit to Living Skills and Vocational Skills. [Resp. Ex. 3B]
For the first semester of the 2016/2017 school year, Mr. Mertz awarded letter grades in Math, Vocational Language Arts, and Vocational Math. He awarded credit for Living Skills. [Resp. Ex. 3B]
Mr. Mertz did not have authorization from the administration to deviate from the uniform grading policy. In addition, the IEPs for the students enrolled in his class only indicated that credit/no credit would be given for general education classes.
Mr. Mertz was the special education teacher assigned to the MiCI classroom. Mr. Mertz would have been the case manager for each student assigned to his classroom. Each of the students in that classroom would have had an Individualized Education Program (IEP). [Jt. Exs. 1-17]
As the case manager, Mr. Mertz would have been responsible for ensuring that the academic goals determined by the IEP team were written in each IEP. In Endrew F v Douglas County School District 137 S.Ct. 988 (2017), the Supreme Court held that each child’s educational program must be appropriately ambitious in light of the child’s circumstances.
It is the responsibility of each case manager to ensure that the goals are measured and documented as required in the IEP. The case manager is responsible for ensuring that all accommodations and related services required by the IEP are instituted. It is the responsibility of the case manager to ensure that all staff, especially general education staff, are informed of any accommodations that a student is required to have under his IEP. It is the responsibility of the case manager to schedule student IEP meetings on an annual basis.
CONCLUSIONS OF LAW
Charge 1: Incompetency
The District alleges that Mr. Mertz is incompetent and, despite numerous opportunities, has failed to improve his teaching. Mr. Mertz contends that he is competent and that the evaluations were not fair or compliant.
Before a tenured teacher can be discharged for incompetence, the charging authority must give the teacher notice of the specific nature of his or her shortcomings and a reasonable opportunity to correct the alleged deficiencies.
In Manning v. Detroit Public Schools, (STC 91-11), the Commission held:
This Commission has described incompetence in the instructional setting as a pervasive pattern of behavior resulting in a lack of classroom organization and harmony, and dissatisfaction on the part of the pupils and supervision authorities. In determining competence, we consider the following five factors, deficiency in any one of which may support a finding of incompetence: Knowledge of the subject; ability to impart it; manner and efficacy of discipline; rapport with parents, students, and other faculty; and physical and mental ability to withstand the strains of teaching.
As to an evaluator’s experience and method of conducting observations the Tenure Commission has noted that the Tenure Act specifically does not require a particular method for conducting evaluations. In Williams v Detroit Public Schools, (STC 02-18) the Commission held:
Indeed, this Commission has recognized for decades that any judgment as to a teacher's performance should be the product of ongoing contact and observation by numerous persons of widely varying backgrounds and expertise. See Chesher v Coldwater Community Schools (73-56-R). The notion that the assistant principal may have been less than a seasoned evaluator does nothing to detract from her ability to observe, recall and recount the conditions, acts, and events occurring in appellant's classroom. See Wildfong v Comstock Public Schools (74-26-R).
Based on the evidence as a whole, I find that observations and evaluations conducted of Mr. Mertz were fair and consistent. The District had selected the Danielson model for the annual evaluations. Mr. Joseph and Mr. Dykehouse each conduct numerous observations. There has been no evidence submitted to indicate that the observations were not conducted in the fair and impartial manner as testified to by both Mr. Joseph and Mr. Dykehouse. Mr. Mertz was given feedback after every observation. He was given each administrator’s notes in the Stages system. He met with the administrators at various points in time to discuss on-going concerns.
While Mr. Mertz’s overall evaluations had been effective until the 2015/2016 evaluation, there had been a number of deficiencies identified. This included Mr. Mertz failure to implement higher level thinking in his teaching. Mr. Joseph had raised concerns and attempted to have Mr. Mertz implement higher level thinking by using such strategies as Think-Pair-Share for a number of years. The District implemented the Reading Writing Workshop model for all language arts. Despite several opportunities for training and coaching, Mr. Mertz failed to implement these strategies as well.
Mr. Mertz was given both soft plan and a PDP that had steps for improvement. Mr. Mertz failed to implement either demonstrating that he was either incapable of complying or simply chose to disregard the steps.
Mr. Mertz contends that the evaluations were not compliant with District policy. There has been no evidence submitted that the evaluations were not compliant with District policy. Mr. Mertz contends that the Kent ISD Evaluation Model was District policy. There is nothing to support this contention.
The evaluation model was fair and transparent. The same model had been used for a number of years. Mr. Mertz completed a self-evaluation using the same model. He was provided notice of the various domains, elements and scoring. I find that the evaluation process was open, fair and transparent.
I conclude, by a preponderance of the evidence, Mr. Mertz’s teaching performance remained unsatisfactory during the 2016/2017 school year, and that Mr. Dykehouse’s evaluation of Mr. Mertz as an ineffective teacher in February 2017 is accurate.
Charge 2: Insubordination
The Tenure Commission has defined insubordination as a “willful disobedience to a directive or policy by one fully understanding such directive or policy.” Davis v Grand Rapids Board of Education (75-26, p 3). See also Sutherby v Gobles Bd of Ed, 73 Mich App 506, 512-513; 252 NW2d 503 (1977); aff'd, 132 Mich App 579; 348 NW2d 277 (1984).
The District alleges that it directed Mr. Mertz to implement a classroom economy; implement a Reading Writing Workshop; distribute a newsletter to parents each semester; read resources provided and provide feedback; administer the scholastic Reading Inventory; and address parent concerns regarding student transition program at the beginning of the 2016/2017 school year.
Mr. Mertz contends that he was never given an actual directive to implement a classroom economy, to distribute a newsletter or to implement the Reading Writing Workshop model. He contends that to the extent these items were listed in either the soft plan or the PDP, it was unclear that failure to comply could result in termination. Also, he contends that the Banzai program was the same as a classroom economy.
Mr. Mertz failed to distribute a classroom newsletter during the first semester of the 2016/2017 school year despite his PDP specifically listing it as a requirement. Mr. Mertz had no explanation as to why he failed to develop the newsletter until February 2017.
Mr. Mertz failed to implement the Mertz Money classroom economy during the 2016/2017 school year again despite the fact that it was specifically called for in his PDP. The classroom economy was first discussed with Mr. Joseph in 2015. The classroom economy was supposed to be a practical and engaging vocational math lesson for the students. Mr. Mertz did develop a curriculum for the program and seemed to implement it for one semester in the winter of 2016. It was included as an element of his PDP for the 2016/2017 school year. Mr. Mertz without discussing the matter with any administrator failed to implement the classroom economy and substituted a computer program, Banzai.
Mr. Mertz contends that the Banzai computer program is the equivalent to a classroom economy. This is not true. A classroom economy would have permitted a real experience for students in the handling of money, budgeting as well as purchasing items. A computer program is simulated. However, even if the two were interchangeable, Mr. Mertz was directed to develop a classroom economy by his administrators. He chose to ignore that directive and instead substituted a computer program without discussing the matter with any administrator.
Mr. Mertz had no explanation for why he failed to discuss this matter with an administrator. It is clear that the administration had directed Mr. Mertz to develop a classroom economy. The administration expected that a classroom economy would be implemented as reflected in the observation comments. Mr. Mertz chose to substitute a computer simulation without discussing the matter with anyone.
Mr. Mertz did not give the Scholastic Reading Inventory (SRI) to his students in the first semester of the 2016/2017 school year. In December, Mr. Mertz requested to conduct the SRI in January upon return from the winter break rather than issue it in December. He was given permission to wait to issue it but was told to issue it upon the students return. Without discussing it or receiving authorization, he did not issue it within the timeframe directed. [Tr. Vol. VII, 1839]
I find that the District has established that Mr. Mertz was insubordinate when he failed to implement the Classroom Economy and the Reading Writing Workshop model and to distribute a classroom newsletter as directed by the administrators.
Charge 3: Misconduct-Dereliction of Duties: Failure to Document and Monitor Student IEP Goals
As a special education teacher, Mr. Mertz was aware of the requirement to write measurable goals and to document each student’s progress on each of their individual IEP goals. Mr. Mertz had additional training concerning these requirements after IEPs written by him failed an MDE audit as testified by Ms. Tacoma. This requirement is very clear under IDEA, the implementing federal regulations, and the Michigan Administrative Rules for Special Education.
However, the IEPs submitted in this matter lack the proper documentation to demonstrate the progress of the individual students. During 2016/2017, Mr. Mertz did not properly document any student’s work in a grade book or Schoology in a manner that would allow for the required documentation or proof of compliance with a particular IEP. From the documentation Mr. Mertz kept, it is impossible to determine if a student has successfully read the required number of words or written a paragraph with a proper opening or closing because Mr. Mertz never documented any assessments concerning the goals.
The IEPs for each student state a goal, a measurement, a method of measurement, and how often one must measure the goal. Because Mr. Mertz does not document the actual measurement or when he measured a goal or how he measured a goal, it would be impossible for a IEP to withstand a legal challenge.
It is concerning that many IEPs require the measurement of a student’s reading using a Reading Record. Mr. Mertz testified that he did not know what a Reading Record was. Therefore, he clearly could not have been measuring this student’s goal as required by the student’s IEP.
Mr. Mertz did not keep copies of any written work of students. Because he did not record the grades nor keep a copy, it is impossible for him to determine, as required by a student’s IEP, if the student included the appropriate opening paragraph or punctuation as required. As part of every student’s IEP, the District must document a student’s present level of academic achievement functional performance (PLAAF). It is required that the student’s measurement concerning a goal or an assessment be documented in the PLAAF. This information is then used to develop the next year’s measurable goal.
Mr. Mertz wrote a student goal as student will write a sentence with proper capitalization two out of four times. He would measure this goal monthly to monitor progress. Mr. Mertz did not document any monthly measurements. In the month of October or the month of December, how many times was student able to write a sentence with proper capitalization- Was it one out four or three out of four? [Jt. Ex. 2A] It is impossible to determine based on the lack of documentation kept by Mr. Mertz. Therefore, when a new IEP is being developed how would he support any future goal or demonstrate to a parent compliance with the IEP. Mr. Mertz did not document any measurements for any student for any IEP as would be his responsibility as the case manager for each of his students. An example of a measurement that means something would be Jt. Ex. 7F. Staff member K.S. specifically notes that the student is progressing as expected, the staff member documents that the student is reading 40 words per minutes with 99% accuracy for a goal of 50 words per minutes with 80% accuracy. Mr. Mertz lacks the required documentation to support any measurement of his students IEP goals.
In Jt. Ex. 8C, Mr. Mertz writes limited progress and as a comment on the progress merely notes still needs help or will work on in 2nd semester. This type of documentation does not provide any of the required documentation to support an IDEA challenge. Whereas, after Mr. Mertz was removed from the classroom, his replacement, staff member Jeff Zeiler notes student is able to fill out a deposit slip with two or less verbal prompts and he is able to balance his check register with his statement. This level of specificity allows the IEP team to understand a student’s actual level of achievement on a particular goal.
Mr. Mertz had students keep a reading log, but the reading log only keeps track of minutes read. There is nothing in the log to measure comprehension or fluency. A reading log is not the same as a Reading Record. It is difficult to ascertain how the reading log could possibly be an appropriate documentation to measure comprehension or fluency. [Jt. Ex. 5F]
Mr. Mertz attempts to defend his work on the IEPs with the fact that no one has ever filed a Due Process Hearing Complaint to challenge any of the IEPs. The District is fortunate that no one has filed such a claim because the IEPs submitted in this matter appear deficient on their face.
The District has established this charge.
Charge 4: Misconduct/Insubordination-Dereliction of Duties - Submitting Grades and Allocating Credit
The District implemented a uniform grading policy. The policy also provided for a method to obtain a waiver or exception. Mr. Mertz did not follow the uniform grading policy, nor did he request a waiver.
Mr. Mertz claims that historically he has always used the credit/no credit standard. While reviewing Mr. Mertz historical grading, it has been both grades and credit/no credit. However, even if Mr. Mertz had always used credit/no credit in the past, the District in 2016 had implemented a new grading policy that all staff was directed to comply with. There is no basis in the record to indicate that Mr. Mertz was not expected to comply with this policy as well. The directives from Mr. Joseph were addressed to all staff.
Mr. Mertz attempts to defend his failure to comply with the grading policy by pointing out that the MoCI instruction, Mr. Jeff Zeiler, used credit/no credit for grades in his classroom. However, Mr. Zeiler specifically sought authorization from Mr. Joseph. Mr. Mertz did not.
Mr. Mertz does not have any clear standards as to what his students would be graded on or how they would be graded or even if they would be graded. He seemed to just change his method whenever he wanted without any notice or authorization.
Mr. Mertz complains that his evaluations were not fair, open or transparent. Yet, he had no curriculum standards or explanation for his manner of grading or giving credit to any of his students. He seems to expect that he is entitled to clear expectations from the administration as to how he would be graded but felt no responsibility to provide this same level of expectation to his students and their parents.
I find that the District has proven this charge by a preponderance of the evidence.
Charge 5: Misconduct/Insubordination – Dereliction of Duties
As a member of the special education staff, Mr. Mertz was required to submit Medicaid billing claims monthly for reimbursement of eligible services. The District contends that Mr. Mertz failed to complete the record monthly Medicaid billings.
Mr. Mertz contends that he was unaware of any requirement to complete the record filings monthly. Rather he contends that he was able to submit the filings at the end of the year. He contends that he had been his custom to file the billings in the spring for the entire school year. I do not find Mr. Mertz’s claim that he was unaware that the billings were required to be filed on a monthly basis to be credible. Mr. Mertz attended at least two Tienet Medicaid trainings in which the monthly requirement was discussed. Furthermore, Ms. Tacoma had clearly outlined this responsibility and in fact had a staff incentive designed to encourage staff members to comply.
Based on the evidence submitted, Mr. Mertz had clearly complied with this requirement in the past. He had regular billings through December 2014. [Tr. Vol. II, pg. 375]
It was the distinct drop in billings that alerted Ms. Papa that there was a potential issue. It was her investigation of the drop-in billings that resulted in the discovery that Mr. Mertz had not properly billed any of his Medicaid responsibilities during the 2016/2017 school year.
I find that the District has established by a preponderance of the evidence that Mr. Mertz was derelict in his duties in that he failed to properly submit the proper billings for Medicaid as required.
Charge 6: Insubordination
By this charge, the District alleged that Mr. Mertz deliberately disobeyed a directive regarding student records.
On March 10, 2017, an Investigative meeting was held in the Administrative offices. Mr. Mertz, his attorney, as well as several district staff members attended this meeting. There were many documents from both parties spread over the tables. The documents included student IEPs. Mr. Mertz was directed that he was not to take any copies of the student IEPs.
At the end of the meeting, the District staff gathered their papers and left the room. Mr. Mertz and his associates remained in the room. Mr. Mertz gathered the remaining papers on the table and everyone left the building. In gathering the documents, Mr. Mertz inadvertently took the student IEPs.
Upon realizing that the District staff did not take the student IEPs from the room, the District staff returned to the room to gather the documents. The documents were not there. Mr. Mertz was called. He double checked the papers he had gathered and discovered that he had inadvertently taken the student IEPs when gathering all his papers. He immediately returned all the documents to the School District.
I do not find that the District had established by a preponderance of the evidence that Mr. Mertz deliberately removed the student IEPs after being directed by the District. It is clear from the record that he inadvertently mixed up the student IEPs with the documents that he brought to the meeting. He accidently removed the documents and upon learning he had them, he immediately returned all the documents to the District.
Conclusion
Mr. Mertz and various District staff used the phrase that Mr. Mertz “was on an Island” as he operated the only MiCI classroom. While Mr. Mertz attempts to use this phrase as a justification for his inability to comply with the teaching improvements requested. I find that he used this “Island” as justification for his failure to comply with the standards of the District. He did not comply with the requirements for grading because he chose not to using the “Island” as justification. He did not implement the Reading Writing Workshop that was implemented District-wide because of his “Island”. From the record, it appears that anytime Mr. Mertz was challenged to improve his teaching or to be held accountable he used the argument that his program was different or unique and therefore, these things could not or need not be implemented. This mindset is a disservice to his students. The students in the MiCI program deserve to be challenged to higher level thinking, challenged to improve their reading, and receive grades just like every other student in the District.
I conclude that the district has established the charge of ineffectiveness by a preponderance of the evidence. “Retention of a teacher whose classroom skills remain deficient after notice and a reasonable opportunity to improve, however, would clearly be unreasonable and detrimental to the school community. When incompetence in the instructional setting is proved, there is always reasonable and just cause for discharge.” Shulman v Farmington Public Schools (09-14). The District has established that Mr. Mertz is an ineffective teacher.
I find that the District has established incompetency, insubordination, and misconduct-dereliction of duties by Mr. Mertz. 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.
In this case, the decision was the result of a deliberate, principled reasoned process supported by evidence.
Szopo factors
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.
ORDER
IT IS ORDERED that respondent's discharge of Thomas Mertz is appropriate and he is hereby discharged.
EXCEPTIONS
A party may file a statement of exceptions to the decision and order or to any part of the record or proceedings including rulings on motions or objections, with the State Tenure Commission. The statement of exceptions must be accompanied by a brief in support of the exceptions and filed in accordance with Commission Rules. The brief and statement of exceptions must be served upon each of the parties within the time limit for filing exceptions and brief.
A party may file a statement of cross-exceptions or a statement in support of the preliminary decision, accompanied by a brief, with the State Tenure Commission, not later than 10 days after being served with the other party's exceptions and brief. MCL 38.71 et seq. Commission Rules require that arguments in exceptions/cross-exceptions briefs must correspond to the order of exceptions/cross-exceptions and that the argument must be prefaced by the exception/cross-exception which it addresses. Commission Rule 46; 1998-2000 AC, R 38.176.
The deadline for filing exceptions and brief is March 26, 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.
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Kandra Robbins |
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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.
[1] Joint Exhibits 1-17 contain redacted educational records of specific students.
[2] Initials are used to protect the identity and privacy of minor children.
[3] Mr. Joseph has served as the Byron Center High School Principal since 2009.
[4] Mr. Dykehouse received a bachelor’s degree in education from Western Michigan University. He obtained a master’s degree in education leadership with a focus on K-12 principalship from Western Michigan University. As part of his master’s program, he had coursework specific to evaluations in addition to training by Mr. Joseph and the Michigan Association of Secondary School Principals. [Tr. Vol. II, pgs. 454/455]