STATE TENURE COMMISSION
v Docket No. 06-3
BIRMINGHAM PUBLIC SCHOOLS
BOARD OF EDUCATION,
Attorney for Appellant: Joseph H. Firestone
THE FIRESTONE LAW FIRM, P.C.
Attorney for Appellee: William G. Albertson
THRUN LAW FIRM, P.C.
DECISION AND ORDER ON EXCEPTIONS
The charges against appellant arose out of two incidents, one of which occurred on
In its first exception, appellee argues that the ALJ erred in finding that appellant did not “push, shove, or otherwise physically force” R.P. into the swimming pool. Citing the testimony of both R.P. and the other five boys, the ALJ found that student K.R. “grabbed R.P. and jumped into the pool with him.” (Preliminary decision and order, p 8). Appellee challenges this finding, arguing that, “by implication,” the ALJ erroneously “exculpated Appellant from this significant action.” (Brief in support of appellee’s exceptions, p 15).
Four of the boys who remained in the pool area, including K.R., stated in their testimony or their written statements, or both, that appellant physically participated in forcing R.P. into the pool. (Tr, Vol I, pp 27, 50-51, 75; Exhibits C, D, E and G). R.P. himself, however, testified, “[O]ne of the kids—I’m not sure—threw me in the pool.” (Tr, Vol I, p 85). Appellant testified that he did not push R.P. into the pool, but that he first put his arm around R.P., that his arms were raised when R.P. was pushed in, that he may have “brushed” R.P., and that the boys could have mistakenly concluded that he pushed R.P. (Tr, Vol III, pp 400-401, 452-454).
Even assuming that, as argued by appellee, the ALJ impliedly found that appellant did not push R.P. into the pool, we do not find, based on the record, that the ALJ erred in this regard. We further note, however, that this factual dispute is of minimal, if any, importance. It is not disputed that the action occurred at appellant's direction. For these reasons, we find no merit in this exception.
In its second exception, appellee argues that the ALJ erred in finding that the testimony that R.P. coughed during the dunking incident was solely the product of leading questions. The ALJ found that student B.K. testified, as a result of leading questions, that R.P. coughed while being dunked. Appellee correctly notes that it was student T.H, not B.K., who testified in response to a leading question that R.P. coughed. (Tr, Vol I, p 38). The ALJ further noted the questionable reliability of evidence produced by leading questions and that R.P. did not testify that he coughed. (Preliminary decision and order, p. 8, n 1). Appellee points out that T.H.’s testimony in this regard was consistent with his written statement, prepared four days after the incident. (Exhibit D). Appellee further notes that, while R.P. did not testify that he coughed, he testified that his head was under the water during most of the incident, that he panicked and that he swallowed water. (Tr, Vol I, p 86).
In light of the entire record, we find it unnecessary to address the substance of this exception. Appellant himself admitted that it would not be unexpected that a boy being dunked by several other boys would choke or cough. (Tr, Vol III, pp 439-440). Whether or not R.P. coughed, his distress was foreseeable and evident. We therefore find that this exception raises no material issue.
Appellee’s third exception challenges the ALJ’s finding that appellant’s conduct did not result in harm to R.P. We address this exception infra.
Appellee’s fourth and fifth exceptions address the ALJ’s findings regarding the other incident upon which the charges are based—a spring 2005 incident between appellant and student B.C. during a health class, when appellant brought B.C. to the floor and held him in a headlock. The incident occurred when appellant was assisting students with a computer assignment. There is no challenge to the ALJ’s findings that the incident occurred when appellant heard someone address him, turned around and found B.C. standing in front of him; and that B.C. grabbed appellant’s wrist with one hand and put his other arm around appellant. Nor does appellee challenge the ALJ’s findings that the testimony of B.C. was unreliable.
In its fourth exception, appellee argues that the ALJ erred in not finding that appellant's spring 2005 conduct was in violation of MCL 380.1312. That statute prohibits corporal punishment in schools but also allows "reasonable physical force upon a pupil as necessary to maintain order and control in a school or school-related setting for the purpose of providing an environment conducive to safety and learning." MCL 380.1312(4). Reasonable good faith judgments are accorded deference in determining if physical force was properly exercised. MCL 380.1312(7).
It was appellee's burden to prove the charges by a preponderance of the evidence. Johnson v Inkster Public Schools (01-10). B.C., whose testimony the ALJ did not find reliable, and appellant testified about the spring 2005 incident. None of the other students in the class testified. Appellant testified that B.C. grabbed appellant's left wrist with his right hand. As appellant tried to break free, B.C. grabbed him more tightly. Appellant could not tell "where [the situation] was leading to." B.C., still holding appellant's left wrist, grabbed the back of appellant's shirt with his left hand. As he did this, appellant used his free right arm to grab B.C. around the head. Appellant was also able to free his left wrist and took B.C. to the ground in a headlock. Appellant believed that his action was necessary to defend himself. (Tr, Vol III, pp 386-387, 426-428). The ALJ found that, given the speed with which the incident unfolded, appellee did not prove that appellant's use of force against B.C. was unnecessary or that the amount of appellant's force exceeded what was reasonably necessary to control B.C.
Based on a careful review of the record and consideration of appellee's argument, we are not persuaded of error in the ALJ's findings. The ALJ witnessed appellant's demonstrations of how he subdued B.C. and was therefore clearly in a superior position to determine the reasonableness of his conduct. (Tr, Vol III, pp 386-387, 465-467). The ALJ reasonably recognized the significance of the speed with which the incident transpired. The record shows that B.C. grabbed appellant's wrist within a very short time of his provocative statement to the effect that "I can take you any time." (Tr, Vol I, pp 91-93). Appellant testified that his initial efforts to break free of B.C.'s hold were unsuccessful. The Legislature has expressly recognized that teachers may be faced with situations when the use of physical force against students is reasonable. Reasonable physical force may be used, for example, in self-defense. MCL 380.1312(4)(b). While we do not take lightly any allegation of excessive force against students, we find that the evidence in this case does not preponderate in favor of a finding that appellant used unreasonable force in his encounter with B.C. Appellee therefore failed in its burden of proof in this regard and its fourth exception is denied.
In its fifth exception, appellee challenges the ALJ’s finding that, when appellant spoke with two colleagues shortly after the spring 2005 incident, he did not admit wrongdoing. We have found, however, that the ALJ did not err in finding that appellee did not prove that appellant used unreasonable force with B.C. Evidence of appellant’s conversations with colleagues following the incident does not alter that dispositive finding. We therefore reject this exception.
Appellee’s third, sixth, seventh, eighth and ninth exceptions concern the level of discipline. Appellant himself admitted that his conduct surrounding the pool incident warrants discipline. (Tr, Vol III, pp 462-464).
In Szopo v Richmond Community Schools Board of Education (93-60), the task of fashioning an appropriate level of discipline in a case of a teacher’s professional misconduct was described:
This Commission must be sensitive to the needs of the students and school community while not losing sight of the purpose of the Tenure Act to safeguard the rights of competent individuals to teach. This involves a sensitive balancing process requiring the weighing of policy considerations (e.g., the safety of school children) as well as the nature of the individual misconduct and its effect on students, school, and community.
In this case, examination of several factors identified in Szopo is instructive in fashioning an appropriate consequence for appellant’s misconduct surrounding the pool incident:
1) Was the behavior planned or deliberate?
The evidence supports the ALJ’s finding that appellant’s conduct was planned and deliberate.
2) Did the conduct constitute a crime?
As a result of the pool incident, appellant was charged with the misdemeanor offenses of assault and battery and contributing to the delinquency of a minor. MCL 750.81 and 750.145. On
3) What was the teacher’s motive or purpose?
The ALJ found that appellant’s purpose was to promote order and discipline in the swim class. Appellee challenges this finding, citing the statement of student T.H. that appellant said he was seeking revenge against R.P. (Tr, Vol I, pp 36-37; Exhibit D). At the hearing, appellant did not recall using the word “revenge.” (Tr, Vol III, p 454). The ALJ found that, while appellant’s purpose was acceptable, he pursued that purpose in an unprofessional manner. We find that appellant acted in a violent manner unrelated in any reasonable way to a salutary purpose.
4) Did the conduct result in harm to a specific victim and, if so, what was the gravity of the harm?
The ALJ found: “R.P. panicked and swallowed water. However, he was not injured. Mr. Zangkas, in my view, did not intend that any harm come to R.P.” (Preliminary decision and order, p 18). Appellee challenges this finding, arguing that R.P. suffered fear, humiliation and physical discomfort. Appellee further notes that two of the other students disengaged from the dunking because they knew it was wrong.
This factor does not concern the teacher’s intent and is not limited to consideration of physical injury resulting from a teacher’s misconduct or to the effect of the teacher’s conduct on his or her primary target. See e.g., Harris v Muskegon Heights (02-3) (a teacher’s racial epithet caused a student to become upset and teary-eyed), Lewis v Bridgman Public Schools (04-8) (a teacher’s gift of an air soft gun to a student caused stress to the student and his parents and potential disciplinary action against the student), Fuller v Detroit Board of Education (94-36) (relevant considerations include whether a teacher’s excessive force puts a student at risk of serious harm and the effect on other children witnessing the teacher’s action), and Sanders v Board of Education of the Willow Run Community Schools (00-8) (emotional anguish caused by a teacher's conduct is considered).
Birmingham Public Schools Superintendent John Hoeffler’s decision to recommend that appellant be discharged was based in part on the fact that appellant’s conduct resulted in the risk of serious physical harm to each of the involved boys. (Tr, Vol II, pp 14-15). Appellant admitted that, when he noticed that R.P. was becoming “agitated,” he ordered the other boys to stop dunking him. (Tr, Vol III, p 464). R.P. struggled to defend himself while he was repeatedly dunked. When he tried to escape, appellant told the others to pursue him. One grabbed his feet, forcing his head under the water. R.P. testified that he was afraid, not knowing if the others were going to stop dunking him. He immediately reported the incident to the school principal. (Tr, Vol I, pp 28, 38, 43, 51, 64, 76, 86-87, 142-143). Appellant, too, met with the principal on the day of the pool incident. He testified that he asked the principal not to discipline the involved boys, a clear indication that he was aware of the precarious position into which he had recruited them. (Tr, Vol III, pp 403, 460).
By the time appellant intervened to stop the dunking, two of the boys had ceased their participation, having determined on their own that they were being ordered to engage in unacceptable behavior:
When [R.P.] started coughing we all stop to let him breath when Mr. Zangkas told us, ‘get him, guys don’t let him get away.’ K.R. and I backed off because we knew now that it really wasn’t a game. Mr. Zangkas wanted to get him. The other boys were fighting him in the water and then they stopped because R.P. really had enough. Mr. Zangkas then said that we could leave. I was shocked. (Statement of student T.H.)(Exhibit D).
A: [L]ike 45 seconds into it he like sort of came up, and you could tell like he didn’t like it and didn’t want to do it anymore, so we all kind of just like backed off sort of.
Q: And when you backed off, did Mr. Zangkas say anything to you boys?
A: He said, “Keep getting him.”
Q: "Keep getting him?"
Q: Well, did you follow that direction or did you not?
A: K.R. and I sort of like swam away to the shallow end of the pool.
Q: So you didn’t follow Mr. Zangkas’ direction at that time?
Q: Why not?
A: Because I could tell something wasn’t right, and the kid didn’t like it...
Q: Do you remember how you felt after this incident?
A: Just like shocked.
Q: And do you know why you were shocked? I mean what—
A: Scary. (Testimony of student T.H.)(Tr, Vol I, pp 40-41).
I then picked R.P. up and jumped into the pool with a fun, not harmful way. We both came up from underwater and were laughing. I went to the shallow end and was standing there. The other boys jumped in on him and were almost drowning and dunking him. T.H. then came over by me and we were in shock with what they were doing. R.P. got away and Mr. Zangkas yelled ‘get him.’ Some kids then went after him and it was ridiculous. I never thought a teacher would do or tell his students to do something like that. (Statement of student K.R.)(Exhibit G).
A: T.H. and I both went away and the rest were—so three of them did not.
Q: And why did you swim away?
A: Because I knew—I thought I would get in trouble because they were both—or all three of them were jumping on him and pushing him down.
Q: How did you feel about what the other boys were doing?
A: Not too good about it...
Q: How were you feeling?
A: I really couldn’t believe it that it was happening, that the other kids didn’t stop.
Q: And during the time you were watching, Mr. Zangkas didn’t do anything to stop them, did he?
A: No. (Testimony of student K.R.)(Tr, Vol I, pp 77-78).
There was no evidence of long-lasting harm in this case. We nonetheless find that R.P. and the other boys suffered harm which is relevant to a determination of the appropriate level of discipline in this case.
5) How much did the conduct deviate from the norms of appropriate conduct for members of society and teaching professionals?
The ALJ properly found that appellant’s conduct was an egregious and significant violation of professional standards. Appellant’s conduct was in blatant disregard of his responsibility to model responsible behavior, to safeguard student safety, to treat students with respect and to exercise his authority over students in a dignified and professional manner.
6) What is the teacher’s attitude, including whether the teacher accepts responsibility and exhibits a willingness to change?
The ALJ found that appellant fully accepted responsibility for his conduct. Appellee challenges this finding, arguing that appellant has not fully and honestly acknowledged his conduct and his motivation.
Appellant immediately reported the pool incident to Principal Moll. (Tr, Vol III, pp 402-403). He pleaded guilty to the misdemeanor charges arising out of the incident. (Exhibit 26). He testified that he realizes the wrongfulness of his conduct, that he is remorseful and that he is committed to avoiding a recurrence. (Tr, Vol III, pp 403-407, 419, 460, 464). The ALJ was in a superior position to assess the credibility of this testimony. We note, however, that, as in Szopo, supra, appellant offered no specific plan for dealing with disciplinary issues similar to those which led to his
7) What is the likelihood the behavior will recur?
The ALJ found that the pool incident was out of character for appellant and that his teaching history reflects respect for students and the use of sound judgment in classroom management. He further found that similar misconduct is unlikely to recur. Appellee challenges this latter finding, noting that the misbehavior of R.P. was not unusual in a middle school setting.
Appellant was referred to a psychologist by his criminal attorney. The psychologist, who has met with appellant several times, described appellant as a well-balanced, truthful, hardworking person who does not have an “assaultive personality” or a propensity for assaultive behavior. According to the psychologist, the pool incident is not an accurate reflection of appellant’s character. (Tr, Vol III, pp 271, 276-277, 280-282, 285-287, 292, 320, 407). This evidence, the abundant evidence of appellant’s teaching history and appellant’s own testimony lend support to the ALJ’s finding that similar misconduct is not likely to recur. We decline to disturb that finding.
8) What is the teacher’s record, including whether there was prior discipline?
There was no evidence of any disciplinary actions against appellant during his teaching career. It is not disputed, and the ALJ found, that appellant has been an exemplary teacher and that he has a 20-year history of positive contributions to Birmingham Public Schools. Those contributions include serving productively on numerous committees; developing an innovative classroom program related to the stock market ; being present before, during and after school to work with students; working well with colleagues and parents; effectively encouraging students to develop their full potential; and coaching and other contributions to the district’s athletic program.
Appellee correctly argues that professional misconduct may be so egregious that discharge is justified notwithstanding mitigating factors related to a teacher’s positive contributions to the school community. Petroski v Inkster Public Schools (86-24-R) (“[A] long record of service will not overcome acts (or even a single act) warranting discharge.”). See, e.g., Belisle v Board of Education of the Flint Community Schools (97-29) (teacher who sold marijuana for five years was discharged notwithstanding evidence of his many years of competent service), and Goodrich v Howell Board of Education (95-21) and Teller v Anchor Bay School District (95-18) (discharge for sexual misconduct involving students notwithstanding teachers' otherwise positive records). It is appellee’s position that, given the nature of appellant’s misconduct, the ALJ accorded undue weight to evidence of his teaching record.
Based on a careful review of the record and consideration of the parties’ arguments, we agree with appellee that the six month suspension ordered by the ALJ does not adequately reflect the seriousness of appellant’s conduct. We do not agree with appellee, however, that, in every case of professional misconduct of the nature of appellant’s misconduct, discharge is the only appropriate remedy.
The ALJ was statutorily authorized in this case to modify the disciplinary action proposed in the charges. MCL 38.104(5)(i). Moreover, it is the responsibility of this Commission to examine each case on an individual basis, with statutory authority in every case to grant, deny or modify the penalty specified in the charges lodged against a tenured teacher. MCL 38.104(5)(m); Smith v Detroit Board of Education (97-15). This Commission, with considerable experience in reviewing tenure cases, frequently has the benefit of evidence not considered by the local board and, as an independent body, can objectively evaluate the appropriate level of discipline. Petroski, supra. Imposition of a penalty other than that determined by a local board of education does not reflect any lack of appropriate deference to the sound judgment of the board, whose penalties are not lightly set aside, but rather a determination based solely on the record of the evidentiary hearing before the ALJ.
The central inquiry in fashioning an appropriate discipline is appellant’s fitness to teach. In Alward v Manistee Intermediate School District (04-34), for example, a special education teacher engaged in repeated acts of misconduct directed at severely impaired students. The teacher’s conduct included dripping her own blood on a student, throwing water in a student’s face, using profanity and other derogatory language when addressing students, grabbing a student and shaking his head in anger, pinching a student and angrily telling a crying student to “shut up.” The evidence in that case conclusively established that the teacher’s superiors and colleagues had lost confidence in her and that she was unfit to teach. Discharge was ordered. In contrast, in Petroski, supra, this Commission declined to discharge a teacher who forged a parent’s signature on a student’s college application. In that case, a lengthy suspension, rather than discharge, was ordered due in part to the teacher’s positive contributions to the school community.
There is no question that, as in Szopo, supra, appellant made a serious mistake in judgment that cannot be explained in any positive fashion. The evidence clearly compels a significant level of discipline. After careful consideration of the evidence, however, we are not persuaded that appellant is unfit to teach. The evidence of his teaching competence and of his other positive contributions to the school community was overwhelming and we are not persuaded that his misconduct will recur. We believe that a suspension until the end of the first semester of the 2007-2008 school year is an appropriate penalty which reflects the gravity of appellant’s misconduct and sends a clear message that such misconduct will not be tolerated. We believe that this lengthy suspension respects the needs of students and the school community while not losing sight of the purpose of the Tenure Act to safeguard the rights of competent teachers.
Based on the record and for the foregoing reasons, we order:
Appellee’s first, second, fourth, fifth, sixth and ninth exceptions are denied.
Appellee's third exception is granted.
Appellee's seventh and eighth exceptions are granted in part and denied in part.
Appellant is hereby suspended without pay until the end of the first semester of the 2007-2008 school year.
Gerald D. Dawkins, Chairperson
Dirk Zuschlag, Secretary
Karen K. Leslie, Member
James Petrie, Member
Absent: Sharon C. Peters
 These facts are largely undisputed. No exception was filed, for example, to the ALJ’s finding that, after the dunking ceased, appellant told R.P., “Next time, I’ll drown you.” (Tr, Vol I, p 87). According to student B.K., appellant told R.P., “We’ll do this ten times harder next time.” (Tr, Vol I, p 31; Exhibit C).
 Examination of the transcript reveals that the formatting of the table of contents may have been the source of this confusion. (Tr, Vol I, p 3).
 Teacher Allen Einstein was in the classroom but did not pay attention to the incident. He testified that he only saw B.C. standing up and appellant on the floor with B.C. (Tr, Vol II, pp 115, 126-128). Paraprofessional Kathy Hackett was also in the room but only saw appellant with B. C. in a headlock. She "didn't really think anything of it" and thought that it was "no big deal." (Tr, Vol II, p 137).
 Principal James Moll testified that he obtained a list of the other students but he did not interview any of them. (Tr, Vol I, pp 148-149).
 The exceptions are:
"[Appellee] takes exception to the...finding of fact of the ALJ...[t]hat Appellant's conduct did not result in 'any harm' to Student R.P." (Third exception)
"[Appellee] takes exception to the...factual finding of the ALJ...[t]hat it is 'unlikely' that Appellant will engage in similar conduct in the future, should he be permitted to return to the classroom." (Sixth exception)
"Appellee takes exception to the ALJ's legal conclusion that the established egregious professional misconduct of Appellant does not constitute reasonable and just cause for the discharge of Appellant, pursuant to Article IV Section 1 of the Teachers' Tenure Act, MCL 38.101, MSA 15.2001. In this regard, Appellee asserts that the ALJ misapplied this Commission's decisional precedent within Szopo v Richmond Community Schools (93-60)." (Seventh exception)
"Appellee takes exception to the ALJ's legal conclusion that Appellant's past teaching performance, unrelated to the present charges, sufficiently militates [sic] his established egregious professional misconduct to avoid the otherwise appropriate and justified penalty of discharge." (Eighth exception)
"Appellee takes further exception to the ALJ's legal conclusion that this Commission's decisional precedent arising from Lakeshore Public Schools v Grindstaff (83-59) aff'd 436 Mich 339, 461 NW2d 651 (1990), implicitly relied upon by the ALJ in refusing to assess the requested penalty of discharge, is applicable to cases such as the present where egregious professional misconduct of a tenured teacher is clearly established upon the record." (Ninth exception)
 See also the testimony of Principal Moll regarding appellant’s remorse and admission of wrongdoing. (Tr, Vol I, pp 134-135).
 Appellee states that past teaching record was not considered in Szopo, supra. On the contrary, evidence of the teacher’s long history in the school district and evaluations of his teaching were considered in that case.
 Appellant requested 140 witness subpoenas because “a significant number of colleagues, parents, students, former students and community members” wanted to testify on his behalf. (Letter from appellant’s counsel to ALJ,
 The Teachers’ Tenure Act, as amended in 1993, thus expressly confers the authority recognized by the Supreme Court in Board of Education of Lake Shore Public Schools v Grindstaff (After Second Remand), 436 Mich 339 (1990).
 See also Johnson, supra:
"The Administrative Law Judge is required to make his own independent findings of fact without deference to the board's findings as part of the de novo review before the Commission. Indeed, there is no hearing at the board level under the revised Tenure Act; hence, the board's decision is not based on evidence presented at a hearing." (Citations omitted).