Davis v. Board of Educ. of Harrison Community Schools

• Decision Date: 30 January 1984
• Docket Number: Docket No. 58750
• Citation: 15 Ed. Law Rep. 906,342 N.W.2d 528,126 Mich.App. 89
• Parties: Dorne DAVIS, Defendant-Appellee, v. BOARD OF EDUCATION OF the HARRISON COMMUNITY SCHOOLS, Plaintiff-Appellant. 126 Mich.App. 89, 342 N.W.2d 528, 15 Ed. Law Rep. 906
• Court: Court of Appeal of Michigan — District of US

Page 528

342 N.W.2d 528

Dorne DAVIS, Defendant-Appellee, v. BOARD OF EDUCATION OF the HARRISON COMMUNITY SCHOOLS Plaintiff-Appellant.

Docket No. 58750.

126 Mich.App. 89, 342 N.W.2d 528, 15 Ed. Law Rep. 906

Court of Appeals of Michigan.

Submitted Oct. 12, 1982.

Decided May 24, 1983.

Released for Publication Aug. 1, 1983.

Leave to Appeal Denied Jan. 30, 1984.

[126 MICHAPP 90] Foster, Swift, Collins & Coey, P.C. by Stephen O. Schultz, Lansing, for plaintiff-appellant.

Thrun, Maatsch & Nordberg, P.C. by G. Michael White, Lansing, for defendant-appellee.

[126 MICHAPP 91] Before HOLBROOK, P.J., and J.H. GILLIS and DODGE ^*, JJ.

DODGE, Judge.

Dorne Davis appeals as of right from a circuit court order reversing a decision of the State Tenure Commission and finding that he was not a tenured teacher at the time the Harrison Community School Board terminated his employment. The case required us to determine whether, under the teacher tenure act, M.C.L. Sec. 38.71 et seq.; M.S.A. Sec. 15.1971 et seq., the two-year probationary period ¹ of an individual who begins teaching after the start of the school year commences at the time he or she begins employment or at the start of the following school year.

Davis began his employment with the Harrison Community Schools as a regular, full-time classroom teacher on January 24, 1977. Davis had not previously obtained tenure with any other school system. On March 13, 1978, plaintiff extended Davis's service for a second year and informed him of that action on March 15, 1978. On January 8, 1979, the school board took action to place Davis on a third year of probation. The school board notified the State Tenure Commission of that action by letter dated January 29, 1979. On October 22, 1979, the board determined that Davis had performed unsatisfactorily and notified him that his services would be terminated at the close of the first semester of the 1979-80 school year.

Davis filed a petition with the tenure commission, alleging that he had gained tenure prior to his discharge from employment and that such [126 MICHAPP 92] discharge without adherence to the provisions of article IV of the tenure act, M.C.L. Sec. 38.101 et seq.; M.S.A. Sec. 15.2001 et seq., was unlawful. It was, and remains, Davis's theory that his two-year period of probation began on January 24, 1977 and ended on January 23, 1979. According to Davis, the board's failure to notify him 60 days prior to the end of the probationary period that either his services would be terminated or that he would be placed on a third year of probation resulted in his gaining tenure at the end of the two-year period.

The commission adopted the anniversary date method, finding that the probationary period began on the initial date of Davis's employment and ended two years thereafter. Since notice of the third year of probation was not provided to the commission until January 29, 1979, after the two-year period of probation had expired, the commission determined that the purported third year of probation was without effect. It concluded that Davis achieved tenure as a matter of law on January 23, 1979, and that his discharge from employment without adherence to the procedures contained in the act was invalid. It thus granted Davis's motion for summary judgment and reinstated his employment with lost salary.

On appeal, the circuit court rejected the anniversary date method. Construing article I, Sec. 1 of the act, M.C.L. Sec. 38.71; M.S.A. Sec. 15.1971, the court found that Davis's two-year probationary period did not commence until the start of the 1977-78 school year. It concluded that Davis was validly placed on a third year of probation, that he was a probationary teacher at the time of his discharge, and that the school board had properly provided notice of nonrenewal at least 60 days before the end of the school year.

See M.C.L. Secs. 38.82, 38.83; M.S.A. Secs. 15.1982, 15.1983. Davis appeals.

[126 MICHAPP 93]

I.

Was Davis's petition in the tenure commission timely?

The school board argues that Davis's petition was untimely under M.C.L. Sec. 38.121; M.S.A. Sec. 15.2021, which provides in part:

"A teacher who has achieved tenure status may appeal any decision of a controlling board under this act within 30 days from the date of such decision, to a state tenure commission. * * * "

According to the board, the petition was essentially a challenge to its alleged failure to timely notify the commission of its January 8, 1979, decision to place Davis on a third year of probation. The school board contends that the petition was untimely because it was not filed within 30 days after January 8, 1979. We disagree and adopt the commission's analysis of this issue.

The appeal period under M.C.L. Sec. 38.121; M.S.A. Sec. 15.2021 does not commence until rights enforceable under the act are adversely affected. The petition was clearly an appeal from the board's decision terminating Davis's employment; it was not an appeal from the board's earlier action purportedly placing him on a third year of probation. Davis's rights were not adversely affected until the board took action to terminate him on October 22, 1979. The petition was filed on November 13, 1979, within the 30-day period provided in the statute.

II.

Did Davis's two-year probationary period begin on the initial date of his employment, January 24, 1977, or at the start of the 1977-78 school year?

[126 MICHAPP 94] Resolution of this question depends upon when Davis became a "teacher" within the definition of M.C.L. Sec. 38.71; M.S.A. Sec. 15.1971.

As initially adopted, the statute defined "teacher" as follows:

"The term 'teacher' as used in this act shall include all certificated persons employed by any board of education or controlling board of any public educational institution."

Article I, Sec. 1, was amended by 1967 P.A. 216, and presently provides:

"The term 'teacher' as used in this act shall include all certificated persons employed for a full school year by any board of education or controlling board of any public educational institution." (Emphasis added.)

In the present case, the commission noted its long-standing adherence to the anniversary date method of computing the probationary period:

"Since 1950, this Commission has been controlled by OAG 1126 (2-17-50) which sets forth what has been termed an anniversary date rationale to the computation of the probationary period. The opinion concluded:

"While the Tenure Act, Art. II, does not make express provision for credit of fractions of school years toward the completion of the two year probationary period of a beginning teacher, neither does the act expressly require the completion of the two complete, consecutive and regular school years. The probationary period implies that a beginning teacher is 'on trial' during his first two years of employment in respect to his being granted tenure. This is the prescribed length of time given to the board within which to determine the tenure in the district. We think that the period should not be extended through interpretation beyond the statutory requirement.

[126 MICHAPP 95] "Applying this rationale, we have held the probationary period begins with the initial date of employment and continues for two years; it is completed on the second anniversary of the date of employment."

The school board argues, however, that under the 1967 amendment to article I, Sec. 1, only those persons who are employed at the start of the school year are "teachers" under the act. The board concludes that Davis was not a "teacher" and his two-year period of probation did not commence until the start of his first full school year.

In interpreting the tenure act, we are cognizant of several well-established rules of statutory construction. The cardinal rule is to ascertain and effectuate the Legislature's intent in enacting the provision. The Lamphere Schools v. Lamphere Federation of Teachers, 400 Mich. 104, 110, 252 N.W.2d 818 (1977). Where the disputed provision is subject to more than one interpretation, the purpose and objective of the enactment will be reviewed to determine legislative intent. ² Carter Metropolitan Christian Methodist Episcopal Church v. Liquor Control Comm., 107 Mich.App. 22, 28, 308 N.W.2d 677 (1981), lv. den. 411 Mich. 1037 (1981). Every part of a statute is to be given effect; one part should not be construed so as to render another nugatory. Melia v. Employment Security Comm., 346 Mich. 544, 562, 78 N.W.2d 273 (1956).

The clear legislative intent in passing the tenure act was to protect teachers from the arbitrary and capricious employment practices of their employers. Wilson v. Flint Bd. of Ed., 361 Mich. 691, 106 [126 MICHAPP 96] N.W.2d 136 (1960); Rehberg v. Bd. of Ed. of Melvindale, Ecorse Twp. School Dist. No. 11, Wayne County, 330 Mich. 541, 48 N.W.2d 142 (1951).

After carefully reviewing the arguments of counsel and applying the applicable rules of construction, this Court is convinced that the Tenure Commission was correct in adopting the anniversary date method of computing Davis's period of probation.

The school board contends that the only logical purpose for the 1967 amendment to article I, Sec. 1 was to limit the statutory definition of "teach...