Cona v. Avondale Sch. Dist., Docket No. 310893.
| Decision Date | 12 November 2013 |
| Docket Number | Docket No. 310893. |
| Citation | 303 Mich.App. 123,842 N.W.2d 277 |
| Parties | CONA v. AVONDALE SCHOOL DISTRICT. |
| Court | Court of Appeal of Michigan — District of US |
OPINION TEXT STARTS HERE
Law Offices of Lee & Correll (by Michael K. Lee and Megan R. McGown), for petitioner.
Clark Hill PLC (by Mark W. McInerney), for respondent.
Before: OWENS, P.J., and JANSEN and HOEKSTRA, JJ.
Petitioner appeals by leave granted 1 the final decision and order of the State Tenure Commission (Commission) discharging him from employment. For the reasons set forth in this opinion, we affirm.
Petitioner began working for respondent during the 1997–1998 school year, and obtained tenure during the 2001–2002 school year. Petitioner taught social studies at Avondale High School at the time of the events underlying this case.
The tenure charges against petitioner arose out of his 17–day absence from school in April and May 2011. In February 2010, petitioner was arrested for operating a motor vehicle while intoxicated. In May 2010, petitioner pleaded guilty to the lesser charge of operating a motor vehicle while impaired and was sentenced to 12 months of probation. The conditions of petitioner's probation required that he refrain from using alcohol and nonprescription drugs and submit to random drug and alcohol testing. Later in May 2010, petitioner tested positive for marijuana. Then, in August 2010, petitioner tested positive for alcohol. Petitioner was charged with a probation violation and ultimately pleaded guilty to that charge. In September 2010, the terms of petitioner's probation were amended to require twice weekly drug and alcohol screening.
In February 2011, petitioner admitted using alcohol. In addition, petitioner again tested positive for marijuana. In April 2011, petitioner's probation officer filed a motion alleging a new probation violation. Petitioner was directed to appear in district court for the alleged probation violation.
Petitioner appeared before the district court on Wednesday, April 13, 2011. This was a school day, and petitioner reported to respondent that his absence from work was due to illness. Petitioner was offered a choice between jail time and an additional year of probation. Petitioner chose jail because he believed that his probation officer would recommend a 15–day sentence and that he would be permitted to serve the sentence on weekends, thereby allowing him to continue teaching during the week.2 However, petitioner was mistaken. After pleading guilty to the charge of violating his probation, petitioner was sentenced to 30 days in jail. The district court ordered that his sentence begin immediately.
Petitioner was permitted one telephone call after he was sentenced. He called his ex-wife, Deborah Cona (Cona), and instructed her how to use AESOP, the computer system used by respondent's teachers to report their absences. Petitioner also gave Cona his confidential AESOP password. Petitioner asked Cona to enter “personal days” in the AESOP computer system to cover his absence. Cona attempted to do this, but the AESOP system would not allow her to enter the personal days as requested by petitioner. Instead, Cona entered “family illness” as the reason for petitioner's absence, believing that this was the best option because the family illness designation was for unpaid leave.
During a 30–second telephone call on April 16, 2011, petitioner instructed Cona to use AESOP again to enter a leave of absence for him. When Cona attempted to do this, “leave of absence” was not an available option. Instead, Cona reported in the AESOP system that petitioner's father was ill. Petitioner and Cona spoke again on April 17, 2011. Cona told petitioner that she had reported that his father had had a stroke and that petitioner had gone to Florida. Petitioner told Cona to go to respondent's superintendent and tell him the truth. On Tuesday, April 19, 2011, Cona visited the superintendent, Dr. George Heitsch, and told him what had happened.
According to Avondale High School Principal Frederick Cromie, petitioner's incarceration in the Oakland County jail was then discovered by the students. One student learned of petitioner's incarceration from his brother, who was in jail at the same time as petitioner. The information spread quickly among the students. Cromie did not know who was actually responsible for spreading the stories at school.
Petitioner was released from jail on the night of Friday, May 6, 2011, or the early morning of Saturday, May 7, 2011. He called Heitsch on the following Monday and they agreed to meet. Petitioner expressed a desire to return to work immediately. However, after the meeting, petitioner was placed on administrative leave for the remainder of the 2010–2011 school year.
On June 22, 2011, Heitsch sent petitioner a letter stating that “[p]ending the successfulresolution of [his] suspension,” petitioner would be placed as a social studies teacher in the middle school for the 2011–2012 school year. The parties then entered into settlement negotiations, but the negotiations eventually broke down and no resolution was ever reached.
On September 6, 2011, Heitsch filed written tenure charges against petitioner with respondent's board of education (the Board). See MCL 38.102. In the written charges, Heitsch explained the circumstances of petitioner's original impaired-driving conviction and petitioner's two probation violations. Heitsch also explained that petitioner had missed work from April 13, 2011, through May 9, 2011, because of his incarceration, and noted that petitioner had given false reasons for his absence. Heitsch alleged that the students had learned of petitioner's incarceration and that “[a]s a consequence, [petitioner's] moral authority as a teacher [h]as been substantially compromised, which has affected his ability to be an effective teacher.” The tenure charges went on to allege:
6. [Petitioner's] unprofessional and illegal conduct has had an adverse impact on the educational and learning environment of Avondale High School. First, his incarceration resulted in him being unable to teach school for approximately a month, or about 19 school days. While a substitute teacher was retained to fill in on these days, the instruction received by students in these circumstances obviously suffered. Moreover, as previously noted, [petitioner] could have chosen to extend his probation and not miss any school days to teach students, but he instead chose jail, knowing full well that his students would be deprived of his services as a teacher for an extended period of time.
7. [Petitioner's] unprofessional and illegal conduct also has had an adverse impact on the educational and learning environment of Avondale High School in another way. It is a teacher's duty to model appropriate behavior. A professional teacher in Michigan who commits a misdemeanor, violates probation, is incarcerated, and as a result misses several weeks of teaching, is not comporting himself in a manner consistent with the standard to which teachers are reasonably held. Moreover, District teachers, especially those at the high school, are expected to support and promote the education of students about the dangers of alcohol and drug abuse, and of operating a motor vehicle while impaired by, or under the influence of, alcohol and/or drugs. [Petitioner's] ability to effectively support the District's educational mission in this regard has been completely undercut by his own disregard for these principles.
8. [Petitioner's] initial use of alcohol prior to operating a motor vehicle, his subsequent use of alcohol in violation of his probation, the consequential jail time and missed days of work, and public knowledge of his conduct, especially by students, provide more than adequate basis for his dismissal under MCL § 38.101(1).
9. Finally, [petitioner's] record with the District over his approximately 13 years in the District has not been exemplary. He has been disciplined in the past. For example, on October 25, 2007, he received a written reprimand for making a statement to one of his students that was essentially as follows: “If I held a gun to your head, it still wouldn't make you shut up, would it?” Given the seriously unprofessional, illegal, and violative conduct detailed above related to his incarceration, as well as [petitioner's] other past behaviors, I have determined that [petitioner] can no longer be effective in contributing in a positive way to the educational and learning environment of Avondale High School and the District as a whole.
Heitsch requested that the Board proceed on the written tenure charges, which called for petitioner's discharge from employment, in accordance with the teachers' tenure act (the Act), MCL 38.71 et seq. The Board voted unanimously to proceed on the tenure charges and to discharge petitioner. See MCL 38.102.
On September 27, 2011, petitioner filed a claim of appeal with the Commission. See MCL 38.104(1). A hearing was conducted before a hearing referee in late November 2011. The hearing referee issued his preliminary decision and order on March 12, 2012.
The hearing referee first addressed the proper statutory standard for reviewing respondent's decision to discharge petitioner. This issue arose because the Act had been amended by 2011 PA 100, effective July 19, 2011, and the amendment had changed the applicable standard. Prior to July 19, 2011, MCL 38.101, 2005 PA 136, effective January 1, 2006, had stated in relevant part: “Except as otherwise provided in section 1a of this article, discharge or demotion of a teacher on continuing tenure may be made only for reasonable and just cause and only as provided in this act.” (Emphasis added.) The 2011 amendment modified the language of MCL 38.101 and added subsections (1) and (2). Subsection (1) now states: “Except as otherwise provided in section 1a of this article...
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