MERTZ THOMAS v BYRON CENTER 17-9  05/17/18

STATE OF MICHIGAN

STATE TENURE COMMISSION

 

THOMAS MERTZ,

Appellant

 

v                                                              Docket No. 17-9

 

BYRON CENTER PUBLIC SCHOOLS

BOARD OF EDUCATION,

Appellee

 

 

Attorney for Appellant: Fil Iorio

                                Kalniz, Iorio & Reardon, Co., L.P.A.

                                4981 Cascade Road, S.E.

                                Grand Rapids, MI 49546

 

Attorney for Appellee:  Katherine Broaddus

                                Thrun Law Firm, PLC
3260 Eagle Park Drive, N.E.

                                Suite 121

                                Grand Rapids, MI 49525

 

 

DECISION AND ORDER ON EXCEPTIONS

Appellant Thomas Mertz filed a claim of appeal with this Commission on May 22, 2017, challenging the May 3, 2017 decision of appellee Byron Center Public Schools Board of Education (Byron Center) to discharge him.  There was a hearing on the claim of appeal on September 25, 26, 28, and 29, October 2, and November 2, 3, and 16, 2017.  On March 5, 2018, Administrative Law Judge Kandra Robbins (ALJ) issued a preliminary decision and order (PDO) upholding the discharge decision.

On March 26, 2018, appellant filed nine exceptions to the PDO and a supporting brief.  On April 9, 2018, appellee filed a brief in support of the PDO.

 

 

DISCUSSION

        Appellant holds a teaching certificate for all subjects in kindergarten through fifth grade and in a self-contained classroom in kindergarten through eighth grade and he is endorsed to teach pupils in kindergarten through twelfth grade who have emotional or cognitive impairments.  He began his employment with Byron Center as a special education teacher in 1993.  Since 1996, he has been assigned to the Byron Center High School self-contained classroom for pupils who have mild cognitive impairments.  (Tr, pp 1515-1517).  The six charges filed against him alleged: incompetency (charge 1), insubordination (charges 2 and 6), misconduct-dereliction of duties (charge 3), and misconduct/insubordination-dereliction of duties (charges 4 and 5).  The ALJ found that appellee proved all of the charges except for the sixth charge.

We begin with consideration of appellant’s eighth exception, in which he asserts that the evaluation of his teaching performance violated several subsections of section 1249 of the Revised School Code, MCL 380.1249, and article III, section 3 of the Teachers’ Tenure Act, MCL 38.93.

Appellant asserts that he was not given an ample opportunity to improve, in violation of MCL 380.1249(1)(d)(i).[1]  According to that provision, a school district shall use its performance evaluation system to inform decisions regarding teachers’ effectiveness and to give teachers ample opportunities to improve.  See also MCL 380.1249(1)(d)(iv) (a school district shall use its performance evaluation system to inform decisions regarding the removal of ineffective teachers after they have had ample opportunities to improve). 

In our consideration of this challenge, we have reviewed relevant facts dating back to the 2011-2012 school year.  At the end of that school year, appellant received an overall performance rating of effective but his evaluator, Byron High School Principal Scott Joseph, who had observed appellant’s classroom performance formally and informally that year, rated him as minimally effective in both alignment of instruction to the curriculum and communication of assessment standards and criteria to students.  (Tr, pp 33-46; Exhibits R-2C, R-13 to R-13I).

Mr. Joseph observed appellant’s classroom performance informally in 2012-2013.  Based on those observations, appellant again received an overall year-end evaluation rating of effective but Mr. Joseph found that he was minimally effective in management of instructional groups, clarity of lesson objective and assessment, alignment of learning activities to research, and enhancement of content knowledge and pedagogical skill.  (Tr, pp 48-57; Exhibits R-14 to R-14E).  A specific concern of Mr. Joseph in 2012-2013 concerned the level of higher level thinking skills used in appellant’s classroom.  (Tr, pp 51-56; Exhibit R-14D).  This was in contrast to his positive comments in 2011-2012 about appellant frequently helping students use higher level thinking processes and strategies.  (Exhibits R-13F, R-13I). 

At the beginning of the 2013-2014 school year, appellant and Mr. Joseph developed three goals for appellant, including improving his students’ reading fluency and comprehension as measured by monthly assessments using QRI or an equivalent tool.[2]  In furtherance of that goal, appellant was to confer with resource room teacher Beth VanDyken about her QRI system.  (Tr, pp 60, 984; Exhibits R-15B, R-15J). 

In 2013-2014, Mr. Joseph observed appellant’s classroom performance formally and informally.  (Tr, pp 60-83; Exhibits R-15C, R-15D, R-15F, R-15G).  During that year, he was concerned about the emerging pattern of appellant’s failure to heed his repeated direction to use strategies to encourage deeper level thinking, including “think-pair-share,” which involves having each student think about a question, pair with another student to discuss it, and share with the larger group.  (Tr, pp 73-75, 81-82).  On the other hand, in the final evaluation of appellant’s 2013-2014 performance, which included an overall rating of effective, Mr. Joseph commented that appellant frequently modeled a wide range of thinking and learning processes and strategies, that he often helped students apply higher level thinking processes and strategies, and that his questions required students to use higher order thinking skills.  (Exhibits R-15A, R-15I).  He rated appellant’s 2013-2014 performance as minimally effective in three categories: management of instructional groups, differentiation of instruction for individual student achievement, and engagement of students in learning.  (Tr, pp 83-84; Exhibit R-15I).  He explained at the tenure hearing that one reason he did not rate appellant as minimally effective in more than three categories at the end of 2013-2014 was that the system in place that year precluded an overall rating of effective if a teacher received minimally effective ratings in four categories.  He preferred to continue to work with appellant “before going on to [a] growth plan.”  (Tr, p 84; Exhibit R-2C).[3]

The last school year that Mr. Joseph evaluated appellant’s performance was 2014-2015.  (Tr, pp 86-103; Exhibits R-16 to R-16H).  The primary district-wide focus during that school year was on the reading component of the Reading Writing Workshop model, which is a research-based best practice for improving students’ reading skills that was part of the school improvement plan.  The model includes students choosing their own reading materials and teachers using a prescribed methodology of instruction that includes mini lessons; periods of sustained silent reading during which teachers use specific strategies to confer with students about what they are reading, listen to them read aloud, and assess their fluency and comprehension; and time for sharing among students.  The model also includes a prescribed methodology for teaching vocabulary in context.  (Tr, pp 86-87, 89-90, 121, 123, 662-663). 

Among the goals that appellant and Mr. Joseph developed for appellant in 2014-2015 was to implement the Reading Writing Workshop model, about which he attended a six-hour professional development training at the beginning of the school year.  This goal included promoting student choice in reading materials and increasing students’ sustained silent reading.  Specifically, appellant was to set aside at least 40 minutes a week for students’ sustained silent reading.  (Tr, pp 86-87, 89; Exhibits R-9D, R-16B).  Another of appellant’s goals for that year was that, twice per semester, his students would use a technique known as claim-evidence-reasoning (or response) to explain their understanding of a text.  (Tr, pp 91-92; Exhibit R-16B). 

Mr. Joseph testified that his concerns about appellant’s performance were increasing during the 2014-2015 school year because he wasn’t seeing appellant make changes in response to their conversations and Mr. Joseph’s coaching.  (Tr, p 105).  In March 2015, he began meeting with appellant and Byron Center Special Education Director Erin Tacoma to develop an assistance plan (called a “soft plan”) for appellant.  (Tr, pp 110-116, 254-256; Exhibit R-18).  The broad goals of the assistance plan they developed were increased student engagement, preparation of students in life and career skills, 100% proficiency on standardized assessments, maintenance of a positive classroom environment, increased awareness of students’ IEPs, and engagement of the community and families in the educational process.  According to the plan, appellant was to develop a classroom economy built around the concepts of having a job and earning money.  He was also to take other specific, identified actions to address the math curriculum, develop the district-wide Reading Writing Workshop model in his classroom, and add digital citizenship to his vocational skills curriculum.  The plan identified three individuals with whom appellant was to consult in his development of a Reading Writing Workshop model; authorized him to get a substitute quarterly so that he could observe teachers using the model and identified nine teachers who were implementing it successfully; provided that he would continue to receive support in the form of books and other resources; and identified an individual with whom he could consult about finding low reading level books that would be of high interest to his students.  Included in the plan was a list of suggested books for him to read.  (Exhibit R-18). 

By the end of the 2014-2015 school year, appellant had not achieved his sustained silent reading and claim-evidence-reasoning goals.  (Tr, pp 90-92; Exhibit R-16B).  Mr. Joseph testified that his ratings of appellant’s performance in various categories, including a rating of minimally effective in management of classroom procedures, “made the [2014-2015] overall evaluation minimally effective.”  (Tr, pp 105-106, 247-248).  Mr. Mertz expressed to Mr. Joseph his considerable displeasure with that rating.  (Tr, pp 106, 247).  Mr. Joseph testified,

Keep in mind that my goal is to help him improve.  I want him to improve, and so if marking him minimally effective isn’t going to necessarily help him improve at this point in time, and he is willing to do some extra work, I was looking at his motivational ability there. . .Referencing back to the meeting in March, if you’re willing to do this [i.e., the “soft plan”] with fidelity and work hard, I’ll mark that effective and we’ll go into the next year watching and trying to help and support, and going into kind of plan mode and support mode.  (Tr, pp 247-248)

 

Mr. Joseph therefore changed his rating of appellant’s classroom management from minimally effective to effective, resulting in a 2014-2015 year-end evaluation rating of effective.  (Tr, pp 106, 246-249; Exhibits R-2C, R-16, R-16H).  However, he rated him as minimally effective in the following three categories: lesson clarity and communication, engagement of students in learning, and communication with families and engagement of them in the instructional program.  (Exhibit R-16H).  Mr. Joseph noted that appellant’s students were consistently engaged at only a low level and that appellant continued to use “familiar teaching techniques,” typically characterized by him addressing the students as a group and rarely using strategies “such as wondering, think-pair-share, debate, discuss, write before answering, etc.”  Id.  In the words of Mr. Joseph, any progress that appellant made between the 2011-2012 and 2014-2015 school years was short term and “would fall apart over time.”  (Tr, p 124).  He testified, “In hindsight, I think I should have just marked [appellant’s 2014-2015 performance] minimally effective.”  (Tr, p 106).

Byron Center High School Assistant Principal Jeff Dykhouse took over the responsibility for evaluating appellant’s performance at the beginning of the 2015-2016 school year.  He observed appellant’s classroom performance informally six times and formally twice during that school year.  (Tr, pp 462-527; Exhibits R-17 to R-17O).  His second formal observation took place on February 15, 2016, at which time he found that appellant was not using a Reading Writing Workshop model and that the students were not engaged in deeper, critical thinking but only passively receiving appellant’s lesson.  Although Mr. Dykhouse had observed some aspects of a Reading Writing Workshop model in an earlier observation, he found that he “had returned to some of his familiar strategies that didn’t include” the model.  He was concerned that appellant was not using the skills about which the administration had provided support and training opportunities, including a training about the Reading Writing Workshop model he attended with Mr. Dykhouse in October 2015 and a six-hour training about the model he attended in November 2015.  (Tr, pp 507-517, 528-530, 538-539; Exhibits R-9I, R-9M, R-17K).  In February, Mr. Dykhouse was concerned that appellant had not yet implemented a classroom economy; it was not until March 2016 that that program started.  (Tr, pp 533-534).

At the end of the 2015-2016 school year, Mr. Dykhouse found that appellant was minimally effective in monitoring and responding to student behavior, engaging students in learning, modeling thinking and learning strategies and processes, knowledge of content related pedagogy, communicating with families and engaging them in the instructional program, and enhancement of content knowledge and pedagogical skills through professional activities.  (Exhibit R-17M).  Among the comments accompanying those ratings were that appellant’s students were doing “[o]nly minimal thinking,” that use of the Reading Writing Workshop model (e.g., using think-pair-share) would help foster students’ engagement, that appellant occasionally modeled thinking strategies for processing information but that he did not have students use those strategies to verbalize their thinking, that only a few students were involved when appellant framed questions to promote thinking, that appellant was using limited instructional strategies and heavily relying on “familiar strategies” rather than the new pedagogical skills (e.g., Reading Writing Workshop model) that were being used in the district, and that he was making little use of materials from educational professional organizations.  He advised that appellant work on including more classroom activities that allowed students to process information on a deeper level.  Id.

Based on Mr. Dykhouse’s findings, appellant received an overall rating of minimally effective for 2015-2016.  (Exhibits R-2C, R-17, R-17M).  In accordance with MCL 380.1249(2)(c) and MCL 38.93, an individualized development plan (IDP) was therefore implemented for him.  (Tr, pp 583-589; Exhibit R-20).  The first goal identified in the plan included encouragement of all students to be intellectually engaged in content through relevant activities and encouragement and modeling of higher level thinking skills.  Among the specific actions that appellant would take to achieve this goal were having a classroom economy based on content relevant to real-world experiences and using it to fine students for off-task behavior; providing choices for students in reading materials; using think-pair-share; fostering an environment where students continually ask and seek answers to higher level thinking questions and modeling a range of strategies to help them do so; and requiring students to present their ideas and work to the class for discussion and clarification.  The second goal of the IDP was that appellant would consistently employ new pedagogical practices reflecting current research and use the Reading Writing Workshop model that was being used district-wide.  Related to the third goal, which involved communication with families and staff, appellant would send a classroom newsletter to parents at least once per semester.  (Exhibit R-20).

In the 2016-2017 school year, Mr. Dykhouse observed appellant’s performance several times, both informally and formally.  (Exhibits R-19C, R-19E, R-19I, R-19J, R-19M).  He continued to be concerned about appellant’s persistent failure to implement all elements of the Reading Writing Workshop model notwithstanding that he had attended another training about the model on September 22.  (Tr, pp 579-580, 690-701; Exhibit R-9V).  He observed that appellant’s students were still not using deep level thinking and he expressed a grave concern about appellant’s statement to him that his students were not capable of deep or critical thinking “and that’s why he wasn’t taking them there.”  (Tr, pp 714-715).  Appellant had not instituted a classroom economy that school year and the students were struggling with the online Banzai math curriculum that appellant was using.  (Tr, pp 706, 711-713). 

At Mr. Dykhouse’s request, Mr. Joseph conducted a formal observation of appellant’s performance on November 21, 2016.  (Exhibit R-19L).  At that time, Mr. Joseph saw no improvement over appellant’s 2014-2015 performance.  He rated appellant as ineffective in modeling thinking and learning strategies and in demonstration of knowledge of content related pedagogy, and minimally effective in demonstrating knowledge of students’ approaches to learning, designing learning activities, engaging students in learning, and using questioning and discussion to foster student participation.  He saw no student engagement or deep thinking.  Appellant did not use think-pair-share or confer with the students during their silent reading, which is a primary element of the Reading Writing Workshop model.  Nor did appellant’s vocabulary lesson that day conform with the prescribed methodology of the model.  (Tr, pp 117-124; Exhibit R-19L). 

In his mid-year review, Mr. Dykhouse changed the overall rating of appellant’s performance from minimally effective to ineffective based on seven ratings of ineffective and two ratings of minimally ineffective.  Some of the categories in which he was rated ineffective were: engaging students in learning, modeling thinking and learning strategies, and knowledge of content related pedagogy.  He was rated minimally effective in management of instructional groups and design of learning activities.  He was placed on administrative leave on February 22, 2017.  (Tr, pp 722-723, 927-928; Exhibits R-2C, R-10D, R-19H).

Based on this evidence, we find that appellant was on notice of specific deficiencies in his teaching performance several years before charges were filed and that he had “ample opportunities for improvement” as required by MCL 380.1249(1)(d)(i) and MCL 380.1249(1)(d)(iv).

In further challenge to the performance evaluation system used by appellee in the years in question, appellant asserts that 25% of the 2015-2016 evaluation of his performance was not based on his students’ growth and assessment data as required by MCL 380.1249(2)(a)(i).  He claims that, based on that factor, he should have been rated effective, not minimally effective, that year.

Although appellant’s summative performance evaluation report for 2015-2016 included a reference to student growth as “4% of Total Eval” (Exhibit R-17M), that form does not establish noncompliance with the statutory 25% requirement.  Mr. Joseph acknowledged that student growth had to account for 25% of an overall evaluation in 2015-2016 and he testified that he believed that had occurred in appellant’s case.  He could not explain the reference to 4% in the summative report.  (Tr, pp 271-273, 343, 353-356).  Mr Dykhouse also testified that 25% of appellant’s 2015-2016 evaluation was based on his effective rating for student growth.  (Tr, pp 525, 528).  We further note, as described above, that appellant was rated as minimally effective in several categories in the 2015-2016 year-end evaluation.  Even assuming an error in the assignment of weight to the category of student growth, he does not explain how, and the record does not support a finding that, his overall rating would have been effective if that error had not occurred.

In apparent reliance on MCL 380.1249(2)(c),[4] appellant further asserts that appellee violated the Revised School Code by developing an assistance plan for him in 2015 (Exhibit R-18) despite the fact that he was rated effective in his 2014-2015 year-end evaluation.  According to appellant, the implementation of the plan also violated article III, section 3 of the Teachers’ Tenure Act, MCL 38.93.[5]  Both of those statutory provisions require an IDP under certain circumstances but, contrary to appellant’s argument, they do not prohibit the development of an assistance plan under other circumstances.  See Scharret Declaratory Ruling (98-1) (a district is not precluded from implementing an IDP to assist a teacher who has some performance deficiency but who has not been rated unsatisfactory).

Further attacking the validity of the evaluation process, appellant argues that appellee violated MCL 380.1249(2)(d)(iv), which provides that a mid-year progress report shall not take the place of an annual year-end evaluation.  Mr. Dykhouse prepared the “mid-year reflection” that is the subject of this challenge.  (Exhibit R-19H).  In that document, Mr. Dykhouse changed appellant’s performance evaluation rating from minimally effective to ineffective.  Appellant asserts that this document took the place of a final evaluation.

MCL 380.1249 requires school districts to implement performance evaluation systems that include annual year-end evaluations of all teachers.  MCL 380.1249(1)(a); MCL 380.1249(2)(a).  For purposes of MCL 380.1249,

“[T]eacher” means an individual who has a valid Michigan teaching certificate or authorization; who is employed, or contracted for, by a school district, intermediate school district, or public school academy; and who is assigned by the school district, intermediate school district, or public school academy to deliver direct instruction to pupils in any of grades K to 12 as a teacher of record.  MCL 380.1249(8).

 

The second semester of the Byron Center 2016-2017 school year began in late January.  (Tr, p 902).  Appellant was placed on administrative leave on February 22, 2017 (Tr, p 927; Exhibit R-10D), and he did not return to the classroom after that date.  He was therefore not a “teacher” for purposes of MCL 380.1249 at the end of the school year or, indeed, for virtually all of the 2016-2017 second semester.  There was thus no requirement that appellee provide him with a year-end evaluation for that year.  Under these circumstances, we find that the mid-year progress report did “not take the place of an annual year-end evaluation” in violation of MCL 380.1249(2)(d)(iv).  Similarly, we reject appellant’s argument that appellee’s actions in February 2017 deprived him of the right to review of a year-end ineffective evaluation rating under MCL 380.1249(2)(l).[6]  Appellant did not have a statutory right to a 2016-2017 year-end evaluation.  See also Korri v Board of Education of the Norway-Vulcan Area Schools (01-6) (statutory requirement of annual year-end evaluation of probationary teacher does not apply when poorly performing teacher is discharged before the end of the school year).

According to appellant, the administrators who evaluated his teaching performance failed to review lesson plans during classroom observations, in violation of MCL 380.1249(2)(e)(i) (classroom observation shall include review of the lesson plan).  In support of this argument, appellant cites only pages 852-853 of the transcript.  Mr. Dykhouse’s testimony about lesson plans on those pages was as follows.

Q:     Did you ever ask in the ’15-’16 school year when you were evaluating Mr. Mertz to see his lesson plans?

A:     Yes.

Q:     What about in the ’16-’17 school year?

A:     Yes.

Q:     And did you review those lesson plans?

A:     Yes, for the formal observation.

Q:     When you say “for the formal observation,” was it just the lesson plan for that day or did you review his lesson plans that he’d been using for the course of the entire semester?

A:     The lesson plan for the day.

Q:     So at any time in the ’15-’16 school year did you ask to see the lesson plans over the course of, let’s say, a month or two months or three months?

A:     No.  We do—traditionally do not ask teachers—not traditionally.  We don’t ask teachers to submit lesson plans as a policy at Byron Center High School.

Q:     In the ’16-’17 school year did you ever ask to see, prior to the formal evaluation, his lesson plans over the course of a month or couple months?

A:     No.

 

This evidence does not show that observations of appellant’s classroom performance did not include review of lesson plans.  On the contrary, it shows that Mr. Dykhouse reviewed appellant’s lesson plan when he formally observed his performance.  The statute does not require review of additional lesson plans.

Appellant further claims that appellee violated MCL 380.1249(2)(e)(v) (“Beginning with the 2016-2017 school year, a school district. . .shall ensure that, within 30 days after each observation, the teacher is provided with feedback from the observation.”)  As required by that provision, appellant received timely feedback after observations of his teaching performance in the 2016-2017 school year in that the observers’ notes were available to him online, observers were available to discuss their notes with him, and he sometimes met with the observer to discuss the observation.  (Tr, pp 118, 268, 701-702, 713-714, 1707-1709; Exhibits R-2D, R-19, R-19C, R-19E, R-19F, R-19G, R-19I, R-19J, R-19L, R-19M, R-19N).

Appellant’s overall performance was not rated as ineffective until issuance of the mid-year progress report in February 2017.  Citing MCL 380.1249(2)(j), he argues that appellee was without authority to discharge him.  That provision requires the discharge of a teacher who is rated ineffective on three consecutive annual year-end evaluations.  The provision further expressly provides, “This subdivision does not affect the ability of a school district. . .to dismiss a teacher from his or her employment regardless of whether the teacher is rated as ineffective on 3 consecutive annual year-end evaluations.”  Thus, the fact that appellant was not rated ineffective on three consecutive year-end evaluations did not deprive appellee of the authority to discharge him based on his performance.

Prior to the 2015-2016 school year, appellant’s teaching performance was evaluated by Mr. Joseph.  In his first assignment in an administrative role, Mr. Dykhouse assumed the responsibility for evaluating appellant beginning with the 2015-2016 school year.  Citing MCL 380.1249(2)(n),[7] appellant argues that Mr. Dykhouse was not qualified to evaluate him.  The ALJ rejected this argument, noting that, in addition to completing coursework specific to evaluations and participating in evaluation training offered by the Michigan Association of Secondary School Principals, Mr. Dykhouse was trained on appellee’s evaluation process by Mr. Joseph.  (PDO, p 28).  Appellant does not raise a specific challenge to these findings of the ALJ, which are supported by the record (Tr, pp 454-456) and which demonstrate satisfaction of the statutory training requirement that went into effect in the 2016-2017 school year.  See also Green v Detroit Public Schools (01-13) (the fact that an assistant principal may be less than a seasoned evaluator does not render him or her unqualified to observe a teacher’s performance).

For all of these reasons, we deny appellant’s eighth exception.

In his first exception, appellant argues that the ALJ erred in finding that appellee proved his incompetence as a teacher, as alleged in the first charge.  He additionally argues that the ALJ erred in “conflat[ing] the issue of incompetency and ‘effectiveness.’”  (Brief in support of exceptions, p 30).  According to appellant, it was incumbent on the ALJ to examine the first charge in light of this Commission’s decisions that have defined incompetence in terms of the following factors: knowledge of the subject; ability to impart that knowledge; manner and efficacy of classroom discipline; rapport with parents, students, and other faculty; and physical and mental ability to withstand the strains of teaching.  Niemi v Board of Education of the Kearsley Community School District (74-36).  Appellee argues that, in light of amendments of the Teachers’ Tenure Act and the Revised School Code in 2011, examination of those factors is no longer required.  In particular, appellee points to the 2011 change of the standard of review in tenure matters from “reasonable and just cause” to “not arbitrary or capricious,” MCL 38.101(1), and to the addition of detailed evaluation requirements in MCL 380.1249.

MCL 380.1249(2)(a)(iv) requires that the portion of a teacher’s evaluation that is not measured using student growth and assessment data shall incorporate the criteria enumerated in MCL 380.1248(1)(b)(i) to (iii).  Those criteria include:

(B) The teacher's demonstrated pedagogical skills, including at least a special determination concerning the teacher's knowledge of his or her subject area and the ability to impart that knowledge through planning, delivering rigorous content, checking for and building higher-level understanding, differentiating, and managing a classroom; and consistent preparation to maximize instructional time.

(C) The teacher's management of the classroom, manner and efficacy of disciplining pupils, rapport with parents and other teachers, and ability to withstand the strain of teaching.  MCL 380.1248(1)(b)(i)(B) and (C) (Emphasis added.)

 

Thus, it is now statutorily required that the evaluation of a teacher’s effectiveness include consideration of the five competency factors identified in Niemi

The tool used by appellee to evaluate appellant’s performance included the broad categories of classroom environment, teacher instruction, professional responsibilities, and student achievement growth.  Individual elements in the tool encompassed the first four factors identified in Niemi, and a determination of the level of effectiveness in all of the elements necessarily encompassed a finding regarding appellant’s ability to withstand the strains of teaching.

The question remains whether the ALJ erred in finding that appellee proved the first charge.  As appellant points out, he was rated effective on year-end evaluation ratings before 2014-2015.  As we described above in our discussion of appellant’s eighth exception, however, Mr. Joseph had significant longstanding concerns about appellant’s performance, appellant was rated minimally effective in 2015-2016, and by mid-year 2016-2017, his performance was determined to be ineffective.  Both Mr. Joseph and Mr. Dykhouse were concerned about appellant’s failure to integrate higher level thinking skills in his instruction.  As this Commission stated in Kalina v Grosse Pointe Public Schools (11-23), “A school district has the right to establish standards for effective teaching performance, including the regular integration of higher level thinking skills in classroom instruction.”  Mr. Joseph described such skills as a research-based best practice that supports students’ development of deeper thinking through engaging in learning by grappling with the meanings of questions and talking with other students about them.  (Tr, pp 53-56).  Both he and Mr. Dykhouse testified about the importance of higher level thinking skills for children of all ages, including high school students who have cognitive impairments.  In the words of Mr. Dykhouse,

[W]e talk about all students have a chance to think critically.  It doesn’t matter what level they’re at, whether they’re a senior in high school, a kindergartner or a 1st grader or a senior in high school who reads at a 1st or 2nd grade level.  You know, we really believe that all students can think critically and think deep about topics and really engage in them.  And that all students need that opportunity, otherwise they become passive and they’re not engaged and the learning just doesn’t take place at the level that it could when students are engaged. 

                                     * * *

I tend to believe that all students are capable of thinking critically.  And yes, they’re all at different levels, and yes, a [cognitively impaired] high school student may not be thinking at the same level as an 11th or 12th grade gen ed student, but they still can think critically.

 

I believe kindergartners all the way through all kids can think critically.  (Tr, pp 514, 715).

 

Mr. Joseph agreed,

[W]e’re not talking about the level of difficulty of the question.  We’re talking about the level of thinking, deeper thinking.  A higher-level question is more getting to the “why,” not just the “what.” 

* * *

Absolutely, yeah [it’s true with special education students as well as general education].  It’s also true in three-year-olds, four-year-olds, five-year-olds.  (Tr, pp 53-54)

 

As described above in our discussion of appellant’s eighth exception, both Mr. Joseph and Mr. Dykhouse found that appellant failed to foster the development of such skills to a satisfactory degree.

Another area of longstanding concern to the evaluators concerned appellant’s implementation of the Reading Writing Workshop model.  Appellant was on notice about the need to implement the model in his classroom as early as the 2014-2015 school year but, despite abundant support, training, and observations of other teachers who were using the model, he did not satisfactorily implement it in his classroom.

Based on review of the record in this matter, we find that appellee’s concerns about appellant’s performance were reasonable and that its evaluation of appellant’s performance as ineffective in February 2017 was sound.  It was not the responsibility of appellee to teach appellant how to teach.  Gayed v Detroit Public Schools (09-34).  Nonetheless, administrators coached and otherwise worked with appellant to improve his performance for several years.  Notwithstanding that assistance, he did not improve to a satisfactory degree.

Citing Reinhart v Detroit Board of Education (95-12), appellant argues that the ALJ erred in not requiring appellee to prove that his teaching adversely affected his students.  Appellee responds that the adverse effect doctrine applied only when the standard of review was “reasonable and just cause” and that it does not apply when a teacher is being discharged based on performance under the “not arbitrary or capricious” standard.

It is not necessary in this case to decide whether continued focus on a separate requirement of proof of adverse effect is useful when a teacher is being discharged based on the evaluation of his or her performance under MCL 380.1249.  Here, there was more than sufficient evidence of the adverse effect of appellant’s classroom performance.  The 2016-2017 mid-year report is a reasonable summary of such effect.  In that report, appellant was rated ineffective in many areas, including engaging students in learning.  Concerning that rating, Mr. Dykhouse commented that few of appellant’s students were intellectually engaged in lessons and that activities lacked real-world connections.  (Exhibit R-19H).  In support of his rating of appellant as ineffective in modeling thinking and learning strategies, he commented as follows.

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 has not focused on open-ended questions, still using many rote memorization techniques in class

·         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.  Id.

 

Mr. Dykhouse also rated appellant as ineffective in knowledge of content related pedagogy, commenting that he displayed little understanding of pedagogical issues involved in student learning of content and noting in particular appellant’s ineffective use of a Reading Writing Workshop model and his failure to track students’ progress in reading and to use a classroom economy.  Id.  He rated appellant as minimally effective in both managing instructional groups and designing learning activities, again referencing the lack of a classroom economy and effective Reading Writing Workshop model. Id.  In our judgment, Mr. Dykhouse’s ratings and comments, which were supported by evidence, demonstrate that appellant’s classroom performance adversely affected his students.  Appellee showed that appellant’s classroom did not meet reasonable expectations for maximization of opportunities for students to learn.

For these reasons and, insofar as appellant repeats arguments he raises in support of his eighth exception, for the reasons set forth in our discussion of that exception, we deny appellant’s first exception.

Appellant’s second exception concerns the second charge, which alleged appellant’s insubordination in failing to implement certain activities in his classroom.  The ALJ found that appellee proved that appellant was insubordinate in that he failed during the 2016-2017 school year to: 1) implement a classroom economy,[8] 2) implement the Reading Writing Workshop model, and 3) distribute a newsletter to parents during each semester.   Each of those items was addressed in the IDP developed for appellant at the end of the 2015-2016 school year.  (Exhibit R-20).

Insubordination is the willful refusal to comply with a clear, reasonable, and fairly applied administrative directive or board policy by someone who knows about the directive or policy and fully understands it.  Harris v Ann Arbor Public Schools (11-3); Davis v Board of Education of the Jackson Public Schools (03-9); Harris v Board of Education of the Muskegon Heights Public Schools (02-3); Osterman v Board of Education of Stephenson Area Public Schools (01-21); Morgan v Board of Education of the Galesburg-Augusta Community Schools (85-11); Beyers v Board of Education of the St. Ignace City School District (77-17).  A teacher’s failure to obey a directive is not insubordination if he or she has attempted to comply without success or lacks the ability to do what is required.  Schaller v Board of Education of the School District of Ypsilanti (94-3); Flowers v Detroit Board of Education (91-20). 

The intent of every IDP is to assist a teacher to achieve the district’s performance standards.  Scharret, supra.  The IDP developed for appellant at the end of the 2015-2016 school year expressly stated that its purpose was “to help [appellant] to focus on a few key areas to see growth and improvement and work toward the ultimate goal of being effective to highly effective in his teaching.”  (Exhibit R-20).  We find nothing in the IDP that establishes that it was intended to constitute a directive for insubordination purposes as it related to a classroom economy, a Reading Writing Workshop model, or a newsletter.  Nor did the testimony of Mr. Dykhouse about his development of the IDP in close collaboration with appellant (Tr, pp 583-590, 594-595) suggest that its provisions were intended to support a charge of insubordination in the event of their breach.  In fact, he testified that it was appellant himself who came up with the elements of the IDP that identified evidence (including implementation of a classroom economy, utilization of the Reading Writing Workshop model two to three times a week, and sending a newsletter to parents at least every semester) that would show his progress on the goals of the plan.  (Tr, pp 585-587, 594).  In addition, we note the evidence that appellant believed that he was fulfilling the IDP’s classroom economy items by using the online Banzai math curriculum in 2016-2017 (Tr, p 1705; Exhibits P-189, P-190) and that he worked on a newsletter during the first semester of that school year and distributed one shortly after the start of the second semester (Tr, pp 1715-1716).  Further, although appellant had been frequently advised of the importance of implementation of a Reading Writing Workshop model, and although we have found that appellee proved that appellant never satisfactorily implemented the model, there was evidence that he made an effort to do so.  For example, Mr. Dykhouse observed that appellant used some components of the model on October 5, 2016 (Tr, pp 689-690; Exhibit R-19C), and November 14, 2016 (Tr, pp 695-704; Exhibit R-19E), and Mr. Joseph observed some components of the model on November 21, 2016 (Tr, pp 120-124; Exhibit R-19L). 

For these reasons, we are not persuaded that the evidence preponderates in favor of a finding that appellant willfully refused to follow clear directives related to a classroom economy, a newsletter, or the Reading Writing Workshop model as required to support a charge of insubordination.  We therefore find that appellee did not prove the second exception and we grant appellant’s second exception.

The third charge, which alleged appellant’s “Misconduct—Dereliction of Duties” related to his students’ 2016-2017 individualized education program (IEP)[9] goals, is the subject of the third exception.  The ALJ found that appellant failed to document and monitor his students’ progress in meeting those goals.

Special Education Director Tacoma testified that a student’s IEP controls how the student’s progress on IEP goals is monitored.  If the IEP identifies a teacher who is to monitor progress on goals, as appellant was identified in the IEPs under consideration in this matter, the teacher must comply and must collect and retain data to support required progress reports.  (Tr, pp 1102-1103, 1173-1174, 1180-1182).  When she met with appellant in February 2017, he was unable to produce any data to justify his reports about students’ progress on IEP goals.  According to Ms. Tacoma, there had been many trainings on how to comply with IEPs, including the requirement to have data to support assessments of progress.  When she interviewed appellant about his compliance with his students’ IEPs, he told her he “was teaching the things [in the IEPs], but things had fallen by the wayside.”  (Tr, pp 1104-1105, 1175, 1182). 

Each of the IEPs under consideration required both monthly monitoring of progress on goals using identified methods and quarterly reporting on progress.  Several of appellant’s students had IEP socio-emotional/behavioral goals.  Appellant told Ms. Tacoma that it was always the school social worker’s, not his, responsibility to monitor students’ progress on socio-emotional/behavioral goals and that he was not responsible to maintain the required observation logs related to those goals.  (Tr, pp 1112-1116, 1131, 1200-1201).  Appellant’s students’ IEPs, with which he was professionally obligated to be familiar, cast doubt on his assertion about his understanding of his role related to socio-emotional/behavioral goals.  Some of those IEPs imposed a log requirement related to those goals only on the school social worker (Exhibits J-9A, J-16C, J-17A) while others imposed specific requirements related to observations and logs on both the school social worker and appellant (Exhibits J-9C, J-11C, J-17C).  Notwithstanding the latter, appellant never documented his students’ progress on socio-emotional/behavioral goals and he never entered progress notes about those goals as required by their IEPs.  As testified by Ms. Tacoma, while the school social worker works with students on an individual basis, the value of a teacher’s observation logs related to socio-emotional/behavioral goals is to assess if the students can transfer socio-emotional/behavioral skills to the classroom environment.  (Tr, pp 1112-1111, 1116). 

Another deficiency noted by Ms. Tacoma was appellant’s failure to keep a “running record”[10] as required by some IEPs for monitoring students’ reading goals.[11]  For example, Exhibit J-16C is an IEP for one of appellant’s students that includes an annual goal to read a first grade level text at 60 words per minute with 80% accuracy as measured on a monthly basis by a running record.  Appellant told Ms. Tacoma that he never used a running record and that he did not even know what a running record was.  (Tr, p 1246).  His 2016-2017 quarterly progress notes regarding the reading goal in Exhibit J-16C stated only “progressing as expected” (“[Student] has been working on sounding out words.”) and “limited progress” (“[Student] tries very hard.  He continues to show limited growth in his reading fluency.”).  These notes, in support of which appellant produced no documentation, shed no light on progress toward achievement of the measurable goal set forth in the IEP.  In contrast, in May 2017, the teacher who took over appellant’s responsibilities under the IEP entered the following progress note about the student’s limited progress.

[Student] is able to read short sentences and answer content questions based off what he has read.  He is currently reading at 34 words per minute at a 1st grade level text.  When he reads he sounds the words out which in turn makes his fluency poor.  What he does read, however, he comprehends.  He is currently reading at a beginning reader level according to his Lexile reading score.  (Exhibit J-16C)

 

Ms. Tacoma expressed general concern about appellant’s numerous entries of “progressing as expected” in reporting on his students’ progress toward achieving the measurable goals of their IEPs and she found that the documents offered by appellant did not satisfy his goal progress documentation obligation.  (Tr, pp 1118, 1122, 1166-1167).  Many of appellant’s quarterly reports of “progressing as expected” were accompanied by no explanatory comment.  See his November 2016 entry related to the math goal in Exhibit J-10C; January 2017 entries related to writing and math goals in Exhibit J-1C, math goals in Exhibits J-4C, J-5A, J-8C, J-9C, and J-11C, the English language arts goal in Exhibit J-8C, transition and math goals in Exhibit J-14C, and math and writing goals in Exhibit J-16C; and November 2016 and January 2017 entries related to transition goals in Exhibit J-4C and reading and transition goals in Exhibit J-10C.  Such entries provide no reliable information about actual progress toward achievement of IEP goals.

As Ms. Tacoma testified, school districts and teachers are responsible for implementation of IEPs with fidelity; it is not permissible to “pick and choose” what parts of an IEP will be followed.  (Tr, pp 1173-1174, 1180-1181).  She expressed concern about potential liability of the district for failure to comply with the IEP requirements of appellant’s students.  (Tr, p 1135).

Based on this evidence and consideration of the entire record, we find that appellee proved by a preponderance of the evidence that appellant did not comply with his fundamental obligation as a special education teacher to adhere to the requirements of his students’ IEPs and to document their progress toward achieving the measurable goals set forth therein.  We therefore deny appellant’s third exception. 

In his fourth exception, appellant challenges the ALJ’s determination that appellee proved the fourth charge, which alleged appellant’s “Misconduct/Insubordination – Dereliction of Duties” related to students’ grades in his Living Skills and Vocational Skills classes.  Appellant was charged with violating the district grading policy.  Appellant argues that there was no policy that precluded his practice of assigning CR (credit) or NC (no credit) rather than letter grades in certain courses for his students, who are not on the diploma track.  He points out that his maintenance of accurate records was consistently rated as effective. 

It is not disputed that the marking period and semester grades in appellant’s Living Skills and Vocational Skills classes varied greatly, ranging from letter grades with corresponding percentages to awards of CR with percentages ranging from zero to 100.  (Exhibit R-3B).  This grading practice did not conform with the Byron Center High School grading policy as it was described in various exhibits (Exhibits R-3E, R-3F, R-3L), and we agree with the ALJ that the practice lacked clear standards (PDO, p 43).  We also agree with appellee that, as testified by Ms. Tacoma, every student has the right to meaningful feedback (Tr, p 1062).  However, we are troubled by appellee’s failure to reconcile this charge with its longstanding evaluations of appellant’s recordkeeping practices.  At the conclusion of the 2011-2012 school year, for example, appellant was rated effective in his maintenance of information on students’ completion of assignments and progress in learning and in his compliance with district standards for the use of technology-aided record keeping.  (Exhibit R-13I).  At the conclusion of the 2012-2013, 2013-2014, 2014-2015, and 2015-2016 school years, he was rated effective in his maintenance of accurate records (management of student information systems).  (Exhibits R-14E, R-15I, R-16H, R-17M).  Mr. Dykhouse commented in the 2015-2016 year-end evaluation that appellant “utilizes PowerSchool[[12]] effectively to report student progress.”  (Exhibit R-17M).  At the tenure hearing, Mr. Joseph took responsibility for not finding fault with appellant’s grading practices when he evaluated his teaching performance.  (Tr, p 287).  Mr. Dykhouse did not explain the discrepancy between his evaluations of appellant’s use of PowerSchool and his criticism of appellant’s grading practices.  (Tr, pp 833-834).

Appellee charged that appellant’s grading practice amounted to misconduct, insubordination, and dereliction of duty.  We find that appellee did not prove the willfulness necessary to support a charge of insubordination.  Harris, supra.  Appellant was unaware that the grading policy applied to his Living Skills and Vocational Skills courses.  Given appellee’s longstanding evaluation of his maintenance of accurate records and management of student information systems as effective, we find that this ignorance of the scope of the policy, which did not expressly mention non-diploma-track courses, was not unreasonable. 

For the same reason, we find that appellee did not prove by a preponderance of the evidence that appellant engaged in misconduct or that he failed in the exercise of his professional duties by virtue of the manner in which he graded his Living Skills and Vocational Skills students.  The determination of whether a teacher’s behavior amounts to professional misconduct is made on a case by case basis.  Kalina, supra.  While a school district has no obligation to warn a teacher not to engage in obviously inappropriate conduct, Buck v Birmingham Board of Education (88-28-R), we find it significant in this case that appellee raised no concerns about appellant’s grading practices until February 2017, shortly before he was placed on administrative leave.  Given appellee’s longstanding evaluation of appellant’s grading practices as effective, it would be disingenuous for appellee to characterize those practices as obviously inappropriate.  Under these circumstances, at the very least, there should have been a warning to appellant that appellee now considered his grading practices violative of district policy and that, absent conformance with policy, he would be subject to discharge based on those practices.

For these reasons, we grant appellant’s fourth exception.

Appellant’s fifth exception is a challenge to the ALJ’s findings related to the fifth charge, which alleged appellant’s “misconduct/insubordination—dereliction of duties” in his failure to comply in 2016-2017 with his obligations related to reporting services for which the district was eligible for reimbursement under the Medicaid school-based services program, which is administered for appellee by Kent Intermediate School District (ISD) (Tr, pp 358-360, 365, 379, 415-416; Exhibit R-6E).  The program includes reimbursement for case management services provided by special education teachers, including but not limited to services related to developing IEPs in collaboration with service providers; facilitating and participating in IEP meetings, including scheduling, sending out invitations, and gathering documents; reviewing IEPs to determine progress; scheduling services and making referrals; answering families’ questions about services and providers; communicating with families about IEP goals and meeting with them to review IEP progress; discussing students’ progress with service providers; coordinating services with principals and counselors; and coordinating transition plan meetings.  (Tr, pp 361, 370-372, 376, 407-409; Exhibit R-6N). 

As a special education teacher, appellant was required to report online the services he provided in his case management role serving those of his students who were eligible for Medicaid.  (Tr, pp 368-369, 1094, 1244; Exhibits R-6L, R-6M).  Kent ISD policy is that a teacher who provides a Medicaid-related service is to report that service within ten days of its delivery.  (Tr, pp 370-372, 401, 418, 431-432; Exhibits R-6E and R-6N).  The Medicaid program requires that case management providers submit monthly summaries for eligible students.  (Tr, pp 368-369, 400, 410-411; Exhibit R-6N). 

During the first semester of the 2016-2017 school year, five of appellant’s students were eligible for Medicaid but he submitted no case management service logs or monthly summaries for 2016-2017 before he was placed on administrative leave in February 2017.  (Tr, pp 395-396, 1091; Exhibits R-6A, R-6D).  He asserts that he always submitted his Medicaid billings for an entire school year in the spring and he was never told that, if he did not do so on a monthly basis, he would be subject to discipline.  He notes that other staff members have failed to submit the billings on a monthly basis and he notes the absence of evidence that any other staff member was ever disciplined for failure to submit monthly bills.  He asserts that there is a July 1 deadline for submission of billings for a school year and that there were no adverse financial ramifications of his failure to submit monthly billings in 2016-2017. 

The evidence does not support appellant’s assertion that he submitted all Medicaid reports in the spring of each school year.  During the 2012-2013 and 2013-2014 school years, he submitted case management service logs and monthly summaries on a nearly monthly basis.  (Exhibit R-6A).  During the 2014-2015 school year, he submitted only one case management service log (“Discussed behavior intervention plan to be implemented with [student] and School Social Worker.”) and only one monthly summary (“Input for student behavior plan.”), both in December 2014.  Id.  During the 2015-2016 school year, his only submissions were a case management service log on January 28, 2016, an IEP meeting note on April 26, 2016, and one monthly summary on June 10, 2016.  All five of those entries for 2014-2015 and 2015-2016 involved the same student.  Id. 

Determining that appellee proved the fifth charge, the ALJ found that appellant’s denial of awareness of the need to enter service summaries on a monthly basis was not credible.  (PDO, p 43).  In support of this finding is evidence of appellant’s nearly monthly entries for the 2012-2013 and 2013-2014 school years and the subsequent abrupt change in his reporting, his attendance at trainings that included information about the reporting requirements, emails he received from Ms. Tacoma’s staff about the monthly reporting requirement, and the posting of documents about the requirement on the ISD web site.  (Tr, pp 370, 427-428, 1079-1080, 1083-1084; Exhibits R-6A, R-6E, R-6H, R-6J, R-6N, R-6P, R-9J, R-9N, R-9U). 

Ms. Tacoma, who became appellee’s special education director in 2010, testified that she has always conveyed to teachers the clear expectation that, as Medicaid providers, they are to submit monthly Medicaid summaries.  (Tr, p 1084).  She further testified of her concern that appellee would be open to a charge of fraud if appellant were allowed to delay submission of information about his alleged Medicaid services until well after the fact.  (Tr, p 1226).  Kent ISD Medicaid project analyst Anne Papa also testified that there is a risk of an adverse federal or state audit finding if a teacher does not have adequate documentation for a Medicaid service summary that is submitted long after the month in which the services were allegedly rendered.  (Tr, pp 371, 381, 401-403, 422-423, 426-427).  She further testified that there would be “a return of revenue based on this case” but that the amount of the funds to be returned had not been determined.  (Tr, pp 425-426).

Based on this evidence, we find that appellant did not fulfill his responsibilities related to reporting case management services for Medicaid reimbursement purposes during the 2016-2017 school year.  We also find that appellee presented sufficient evidence of the importance of the timeliness of reporting those services.  Further, we find that the record is not adequate to determine if the circumstances surrounding other teachers’ failure to comply with the Medicaid requirements were sufficiently similar to those of appellant to support a claim of disparate treatment.  Carter v Board of Education of the Howell Public Schools (89-29).  For these reasons, we deny appellant’s fifth exception.

Appellant’s sixth exception is that the ALJ’s determination that the discharge decision was not arbitrary or capricious is faulty because she declined to consider the Szopo[13] factors.  He argues that the ALJ should have considered the length and excellence of his career with appellee; his genuine care for and strong bonds with his students; and his dedication to teaching.

Having found that appellee’s decision to discharge appellant was the result of a deliberate, principled, reasoned process supported by evidence, the ALJ expressly declined to address the Szopo factors.  (PDO, p 46).  We are persuaded of no error in this ruling.  Green v Reeths-Puffer Public Schools (16-13).  Appellant’s sixth exception is therefore denied.

In his seventh exception, appellant argues that the investigation that led to the filing of charges and to the discharge decision was deficient and that the decision was therefore arbitrary or capricious. 

In Bethke v Godwin Heights Public Schools and Board of Education (15-29), this Commission recognized that a school district is responsible to conduct a thorough investigation of facts that lead to charges and that a less than thorough investigation can, in some circumstances, be considered as lacking in consideration of relevant “principles, circumstances, or significance” and thus arbitrary.  In Bethke, a majority of this Commission found that the decision to discharge the teacher was arbitrary because the administrator who recommended discharge did not have all relevant facts, did not consider certain important evidence, and misunderstood a controlling board policy. 

In this case, appellant specifically complains that there was not a fair and reasoned investigation of the Medicaid and IEP monitoring issues.[14]  We disagree.  There were several meetings in February and March 2017 related to appellee’s concerns about those issues and he was given access to documents that had been retrieved from his classroom after he was placed on administrative leave.  (Tr, pp 300-301, 304-306, 308-319, 731-741, 745-750, 920-924, 929-934, 938-944, 964-967, 1104-1123, 1129-1132, 1189-1220, 1226, 1239-1243, 1246, 1455-1488, 1498-1500; Exhibits R-10A, R-10B, R-10C, R-10D, R-10H).  Appellant does not identify any evidence that shows facts relevant to the Medicaid and IEP issues of which administrators were unaware, any important evidence related to those issues that was not considered, or appellee’s misunderstanding of any policy surrounding those issues.

Appellant further argues that he was not given adequate time to present or prepare a defense to the charges, which, he asserts, were considered at a “perfunctory” board meeting.  As noted above, appellant was aware of concerns about his performance long before the charges were filed.  In addition, although the board meeting where the charges were to be considered was scheduled for late April 2017, it was postponed to give appellant an opportunity to meet with Byron Center Superintendent Daniel Takens.  During that meeting, which took place on April 25, appellant presented Mr. Takens with a written document identifying what appellant described as appellee’s violations of federal and Michigan laws and articulating several challenges to the tenure charges.  The board ultimately convened on May 3 to consider the charges, which had been sent again to appellant following his meeting with Mr. Takens.  At the board meeting, appellant’s union representative and his brother, an attorney, spoke on his behalf and appellant gave an oral presentation outlining his contributions to the district.  He estimated that his presentation lasted about one-half hour.  At that time, appellant also presented the board members with a letter that contained both a description of his contributions and his response to the charges.  Attached to the letter was the document he had given to Mr. Takens on April 25.  According to Assistant Superintendent Kevin Massina, who attended the board meeting, the board members reviewed the documents that appellant provided to them.  (Tr, pp 1274-1275, 1307-1308, 1450-1451, 1489-1495, 1502-1511, 1809-1813, 2031; Exhibits R-10E, R-10F, R-10G). 

Based on this evidence, we do not agree with appellant that the May 3 board meeting was “perfunctory” and we find that he had a reasonable opportunity to respond to the charges in advance of the board decision.  For these reasons, we deny his seventh exception.

Appellant’s ninth exception is a challenge to the ALJ’s denial of his September 15, September 20, and September 25, 2017 motions to adjourn the hearing to give him more time to review documents that appellee had provided.  The reasons cited by the ALJ in support of denying the motions included the facts that the hearing dates had been established in June; that the parties had exchanged a large volume of documents by the agreed-upon date of September 8; that only documents exchanged by that date would be allowed into evidence; and that the Teachers’ Tenure Act requires that a tenure hearing conclude no more than 75 days from the filing of the claim of appeal, MCL 38.104(5)(g), a requirement that would not be met in this case because of the attorneys’ schedules.  According to the ALJ, she had had many conversations with the attorneys about “the production of documents and the opportunity to go through all of the boxes that were taken from the file or from the teacher’s office and the e-mails.”  She found that the parties had had adequate time to prepare for the hearing.  (PDO, p 2; Tr, pp 19-23). 

A motion to adjourn a tenure hearing is addressed to the sound discretion of the administrative law judge and may be granted only “on good cause.”  Mich Admin Code, R 38.156.  A decision represents an abuse of discretion when it falls “outside the principled range of outcomes.”  Radeljak v DaimlerChrysler Corporation, 475 Mich 598, 603 (2006). 

We are not persuaded that the ALJ abused her discretion in denying appellant’s motions for adjournment.  The Teachers’ Tenure Act reflects the legislature’s intention to ensure expeditious resolution of challenges to decisions of controlling boards to demote or discharge tenured teachers.  In this case, the ALJ reasonably found that further delay of the hearing, which was already scheduled to begin beyond the statutory timeline, was not warranted.  We further note that the hearing lasted from September 25 to November 16, thus giving appellant abundant additional time to review the documents that he claimed were produced too late to be reviewed in advance of the hearing.  For these reasons, appellant’s ninth exception is denied.

In summary, we find that appellee proved the first, third, and fifth charges.  From Mr. Joseph’s perspective, appellant had many opportunities to improve but did not do so.  In his view, appellant’s teaching was not “good for kids” and he did not even demonstrate a desire to improve.  (Tr, pp 163-164).  Mr. Dykhouse described appellant’s performance as having worsened despite support, resources, and coaching.  If appellant were returned to the classroom, which would cause Mr. Dykhouse to “have fairly grave concerns about the students and their academic success,” he would need considerable continued support and coaching.  (Tr, pp 754-755).  Ms. Tacoma also testified about the amount of oversight that would be required if appellant were to return to a special education classroom.  In her words, “[O]ur students deserve to have somebody who has high standards for them, but also high standards for themselves as a professional day in and day out.”  (Tr, p 1136).  Assistant Superintendent Kevin Masina described similar concerns.

There’s a number of concerns that I have.  One of the concerns is that Mr. Mertz along the way has been given ample opportunity to prove, when it talks—when it comes to classroom management and classroo- —things that are happening within his classroom.  Mr. Joseph, the high school principal, started off with what we refer to in Byron Center is called a soft plan.  That has given him the opportunity to grow as an educator and to address certain issues that are happening in his classroom.

 

That was not effective and it did not work for Mr. Mertz, so then we went to a formal IDP process with him.  And on the formal IDP process things were not completed and things were not taken care of.  Along with that, with Mr. Mertz being in special ed, there’s a very finite job that he has of taking care of IEP’s and things like Medicaid billing to make sure that those things are taken care of from his perspective so that students have the best education that they can get.

 

And once again, through our investigation process, we find that that has not been happening in his classroom.  If Mr. Mertz were to return, there would be a lot of oversight that would go right back to Mr. Mertz.  We would spend a lot of time still working on an IDP, still setting up goals, and there’s really nothing that has—I’ve seen so far that has shown that he would really be able to put some corrective actions in place that would make him an effective classroom teacher.  (Tr, pp 1275-1277).

 

In this case, appellee’s expectations for appellant’s classroom performance and professional behavior were reasonable.  Because of his failure to meet those expectations to a satisfactory degree, the decision to discharge him is not arbitrary or capricious.  MCL 38.101(1).

ORDER

For the foregoing reasons and based on the record, we order the following:

Appellant’s second and fourth exceptions are granted.

Appellant’s first, third, fifth, sixth, seventh, eighth, and ninth exceptions are denied.

Appellant is hereby discharged.

 

_______________________________

David Campbell, Chairperson

 

 

 

_______________________________

R. Stephen Olsen, Secretary

 

 

 

_______________________________

Nancy Danhof, Member

 



_______________________________

Jeffyn Herioux, Member

 

Absent: Patrick McKennon, Member

 

 

May 17, 2018

 



[1] For a discussion of this and other parts of MCL 380.1249, see Summer v Southfield Board of Education, ____ Mich App ___ (2018).

[2] QRI (Qualified Reading Inventory) is an assessment tool for documenting how many words a student reads accurately per minute.  Such an assessment tool is also called a running record.  (Tr, pp 1117, 1204-1205).

[3] See MCL 380.1249(2)(c) (individualized development plan required for a teacher rated minimally effective).

[4] MCL 380.1249(2)(c) and the related (2)(d) provide in pertinent part as follows.

(2) The board of a school district. . .shall ensure that the performance evaluation system for teachers meets all of the following:

***

(c) . . .For a teacher described in subdivision (d), the school administrator or designee shall develop, in consultation with the teacher, an individualized development plan that includes [performance] goals and training and is designed to assist the teacher to improve his or her effectiveness.

(d) The performance evaluation system shall include a midyear progress report for a teacher who. . .received a rating of minimally effective or ineffective in his or her most recent annual year-end evaluation.

[5] Appellant relies on the following sentence in MCL 38.93.

 

If the teacher has received a rating of ineffective or minimally effective on an annual year-end performance evaluation, the school district shall provide the teacher with an individualized development plan developed by appropriate administrative personnel in consultation with the individual teacher.

 

[6] MCL 380.1249(2)(l) provides in part as follows.

 

The performance evaluation system shall provide that, if a teacher who is not in a probationary period. . .is rated as ineffective on an annual year-end evaluation, the teacher may request a review of the evaluation and the rating by the school district superintendent.

 

[7] MCL 380.1249(2)(n) provides in part as follows.

 

(n) Beginning with the 2016-2017 school year, a school

district. . .shall ensure that training is provided to all evaluators and observers. The training shall be provided by an individual who has expertise in the evaluation tool or tools used by the school district.

 

[8] A classroom economy is a program that provides real-life experiences for students in the handling of money and budgeting.  An example is the program that appellant used in 2015-2016 whereby students received biweekly cash wages for their schoolwork in the form of play money that they used for nondiscretionary expenses (e.g., rent) and discretionary purchases (e.g., special privileges or items in a classroom store).  Built into the program were unexpected financial emergencies and windfalls and opportunities to earn bonus pay.  Fines and pay reductions were imposed for unacceptable work performance.  (Exhibits R-2F, P-188).

[9] As recently described by a unanimous United States Supreme Court, an IEP is a plan to enable a student with a disability to make academic and functional progress; it is developed based on careful consideration of the unique circumstances of the child related to achievement, disability, and potential for growth.  Endrew F. v. Douglas County School District RE-1, 580 U.S. ___; 137 S. Ct. 988, 999; 197 L. Ed. 2d 335 (2017).  In the words of the Supreme Court, “The goals [of IEPs] may differ, but every child should have the chance to meet challenging objectives” and “to make progress appropriate in light of the child’s circumstances.”  137 S. Ct. at 1000-1001.  Thus, an IEP must include measurable annual goals and it must identify how the student’s progress toward meeting those goals is to be measured.  20 USC §1414(d)(1)(A)(i)(III); 34 CFR 300.320(a)(3)(i); Mich Admin Code, R 340.1721e(1)(a).  Once the IEP team, which includes the parents of the student (34 CFR 300.321), develops an IEP, revisions to the IEP may be made only in accordance with federal law; unilateral changes to the IEP may not be made.  See 34 CFR 300.324.

[10] A running record (e.g., QRI) is an assessment tool for documenting how many words a student reads accurately per minute.  Contrary to appellant’s argument, a running record is distinct from a reading log, which only shows how many pages a student has read in a given period of time.  (Tr, pp 475-476, 692-693, 1117, 1204-1205; Exhibit J-1F). 

 

[11] According to Mr. Dykhouse, how to use a running record was part of Reading Writing Workshop training.  (Tr, p 477).

[12] PowerSchool is the student information system that is used by Byron Center teachers to report students’ grades.  (Tr, p 152).

 

[13] Szopo v Richmond Community Schools Board of Education (93-60).

[14] Appellant also complains about the investigation of his grading practices.  Our resolution of the fourth exception renders it unnecessary to address that aspect of this exception.