NADON VINCENT v PLYMOUTH-CANTON 17-16  01/04/18

STATE OF MICHIGAN

MICHIGAN ADMINISTRATIVE HEARING SYSTEM

Issued and entered

 this 4^th day of January, 2018

by: Michael J. St. John

Administrative Law Judge

ORDER GRANTING RESPONDENT’S MOTION FOR SUMMARY DISPOSITION

On November 20, 2017, Respondent filed a Motion and Brief for Partial Summary Disposition under Commission Rule 38.155(1)((a), (c), (d), and/or (e).

On December 5, 2017, Petitioner filed a Response to Respondent’s Motion.

On December 12, 2017, oral arguments were heard on the Respondent’s Motion.

On December 13, 2017, Respondent filed a supplement to the Respondent’s Response.

Legal Standard for Summary Disposition

Under Commission Rules 25(1)(a), (c), (d) and (e), a motion for summary disposition may grant relief to the moving party as a matter of law if there is no claim upon which relief can be granted, no genuine issue of material fact, no subject matter jurisdiction, or if the appeal is barred because it is untimely.  Although filed under subparts (a), (c), (d) and (e), the focus of the Respondent’s initial argument is that the Petitioner’s appeal is untimely under MCL 38.104(1) which requires in relevant part:

A teacher on continuing tenure may contest the controlling board's decision to proceed upon the charges against the teacher by filing a claim of appeal with the tenure commission and serving a copy of the claim of appeal on the controlling board not later than 20 days after receipt of the controlling board's decision. …

MCL 38.104(1).

Timeline

Aug 15, 2017       Respondent files teacher tenure charges against Petitioner

Aug 21, 2017       Respondent mails teacher tenure charges to Petitioner

Aug 23, 2017       Charges received by Petitioner’s attorney

Aug 24, 2017       Charges received by Petitioner

Sep 13, 2017       20 days after charges received by Petitioner

afternoon     Petitioner’s attorney attempts to fax Appeal to Commission

5:16 p.m.     Petitioner’s attorney’s faxed Appeal received by Commission

Sep 22, 2017       Petitioner’s attorney emails Respondent’s attorney claim of appeal

Relevant Facts

Rule 38.143 requires that “… an appellant shall file a claim of appeal with the commission not later than 20 days after receipt of the controlling board’s decision and notice of tenure rights.  …”  Here that date was September 13, 2017 – 20 days after the Petitioner received the controlling board’s decision.

The Petitioner attempted to timely file his claim of appeal on the 20^th (and last) day by faxing the appeal to the Commission.  However, it was not received on the 20^th day because it was received after 5:00 p.m. and therefore considered filed the next day.  Rule 38.145(2)(d) which allows pleadings by fax notes that “Pleadings or documents filed by fax which are received after 5:00 p.m. will not be considered filed until the next business day.”

Petitioner’s counsel admits that he has no proof to show that the Petitioner’s claim of appeal was received timely on September 13, 2017.  Transcript 12:1-4.  Petitioner’s supplemental response to Respondent’s motion only attempts[1] to show that he attempted to fax his claim of appeal timely – it does not show that his claim of appeal was timely received.  The evidence in the record shows that the Petitioner’s claim of appeal was not timely received by the Commission and therefore Petitioner’s claim of appeal was not timely filed with the Commission.

Further, Petitioner’s counsel never served the claim of appeal on the Respondent school board.  Although Petitioner’s counsel indicated at the motion hearing that the Respondent was served via certified mail and indicated that he would supplement his response with that certified mail return receipt.  Transcript 20:21-21:17. Petitioner’s counsel did not provide this supplement as required.  Petitioner’s counsel did not respond to an email from the undersigned Administrative Law Judge requesting the document.

Undersigned Administrative Law Judge’s December 14, 2017 email to Petitioner’s attorney (Zachary Hallman) requesting proof of service documentation; no response was received.

Petitioner has failed to provide proof that he served the Respondent controlling school board as required by Rule 38.144 despite being given three opportunities to do so: 1) his response to Respondent’s motion, 2) his supplement to Respondent’s motion, and 3) in response to the undersigned Administrative Law Judge’s email specifically requesting the document.  The only conclusion to be drawn from the Petitioner’s repeated failure to provide the required documentation is that he cannot because he did not serve the Respondent as required by Rule 38.144.

An appeal is commenced by filing with the commission, a notice of claim of appeal, and a claim of appeal. The appellant shall serve a copy of the notice of the claim of appeal and the claim of appeal upon the controlling board by delivering the documents in person, by registered mail, return receipt requested, or by certified mail, return receipt requested.

R 38.144.

Applicable Law

The statutory timelines for filing an appeal are jurisdictional; when the timelines are not met they operate to deprive the Commission of jurisdiction over an untimely claim of appeal.  Curry v Huron Valley Schools (73-59) and Halliburton v Detroit Board of Education (79-1).  When a claim of appeal is found to be filed untimely, the Commission lacks jurisdiction over the claim of appeal and summary disposition is appropriate.

Here the Respondent has established, and the Petitioner has failed to rebut (despite being given ample opportunity to do so), that the Petitioner failed to both timely file his claim of appeal with the Teacher Tenure Commission and failed to timely serve his claim of appeal on the Respondent controlling board.  Therefore, summary disposition is appropriate under Rule 38.155(d) and (e) since the Commission lacks jurisdiction and the claim of appeal is barred because it is untimely.

Because the Petitioner’s appeal is untimely and summary disposition is appropriately granted under Rules 28.155(d) and (e), the remainder of the Respondent’s argument is moot and therefore not addressed.

IT IS ORDERED that Respondents’ Motion for Summary Disposition is GRANTED.

IT IS FURTHER ORDERED that this case is dismissed with prejudice.

EXCEPTIONS

A party may file a statement of exceptions to the decision and order or to any part of the record or proceedings including rulings on motions or objections, with the State Tenure Commission.  The statement of exceptions must be accompanied by a brief in support of the exceptions and filed in accordance with the rules of the Commission.  Rule 46 ; AC 38.176.  The brief and statement of exceptions must be served upon each of the parties within the time limit stated above.  A party may file a statement of cross-exceptions or a statement in support of the preliminary decision, accompanied by a brief, with the State Tenure Commission, not later than 10 days after being served with the other party's exceptions and brief.  MCL 38.71 et seq.  Rule 46(2) of the Commission's General Administrative Rules requires that arguments in exceptions/cross-exceptions briefs must correspond to the order of exceptions/cross-exceptions.  The argument must be prefaced by the exception/cross-exception which it addresses.  [See Rule 46(4)(d)].

The deadline for filing exceptions is 20 days after the mailing of this judgment; therefore, exceptions must be filed by January 24, 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 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.

PROOF OF SERVICE

I hereby state, to the best of my knowledge, information and belief, that a copy of the foregoing document was served upon all parties and/or attorneys of record in this matter by Inter-Departmental mail to those parties employed by the State of Michigan and by UPS/Next Day Air, facsimile, and/or by mailing same to them via first class mail and/or certified mail, return receipt requested, at their respective addresses as disclosed below this _______ day of January, 2018.

[1] The Petitioner’s supplemental response attempts to show that the claim of appeal was timely sent, but it is very confusing and requires making several assumptions.  However, since the Petitioner provided no evidence that his claim of appeal was timely received, it is ultimately irrelevant.  Even if the Petitioner’s assertion that he timely sent his fax is accepted, this is insufficient.  The claim of appeal must be both sent and received timely to be properly filed.  It was not here.