Ferrario v. Board of Educ. of Escanaba Area Public Schools
| Citation | 426 Mich. 353,395 N.W.2d 195 |
| Decision Date | 31 October 1986 |
| Docket Number | Docket No. 75602 |
| Parties | , 35 Ed. Law Rep. 761 Richard FERRARIO, Plaintiff-Appellee, v. BOARD OF EDUCATION OF the ESCANABA AREA PUBLIC SCHOOLS, Defendant-Appellant. * |
| Court | Supreme Court of Michigan |
Foster, Swift, Collins & Coey, P.C. by Lynwood E. Beekman, Timothy P. Greeley, Lansing, for plaintiff-appellee.
Robert S. Rosemurgy, Terry F. Burkhart, Butch, Quinn, Rosemurgy, Jardis & Valkanoff, P.C., Escanaba, for Board of Educ. of Escanaba Area Public Schools.
The State Tenure Commission granted summary judgment to plaintiff Ferrario because it found that Ferrario's right to due process at his discharge hearing before the local board was violated. In this appeal, the Escanaba Area Public Schools Board of Education contends that the Court of Appeals erred as a matter of fact and law in finding substantial evidence to support the Tenure Commission's finding. The board further contends that the Court of Appeals erred in granting Ferrario back pay from the date of the board's decision discharging him until the Teacher Tenure Commission completes a de novo review of the case on the merits.
We find that the Teacher Tenure Commission failed to properly review the record involving Ferrario's dismissal to determine whether actual bias or a high probability of actual bias existed. The record as a whole fails to substantiate the commission's findings of lack of due process.
Moreover, if such bias had been found, the commission should have performed a de novo review on the merits before ordering reinstatement or back pay for the plaintiff. While the lower courts properly remanded the case to the Tenure Commission for consideration of the merits, they erred in affirming the commission's finding of a due process violation and in awarding back pay to Ferrario.
Plaintiff Ferrario 1 was a teacher in the Escanaba Area High School. On April 27, 1981, the assistant superintendent of the Escanaba Schools received a written statement from a student of alleged improper conduct by Ferrario. This statement was forwarded, with a memorandum, to the secretary of the Board of Education. 2 In response to the charge, the secretary called a board meeting by written notice dated April 27, 1981. 3 The board met on April 28, 1981, and decided to proceed with a discharge hearing. 4 Mr. Ferrario was informed of the school board's decision, the nature of the charges, the time of the scheduled hearing, and of his rights under the teacher tenure act in a letter from the assistant superintendent dated May 11, 1981. 5
A hearing was held on June 10, 1981. At Ferrario's request, the hearing was private and the witnesses were sequestered. Mr. Ferrario, the administration, and the board were each represented by counsel. All exhibits were introduced by stipulation of counsel. In his opening statement, Ferrario's counsel stipulated on the record that Ferrario had been given adequate notice of the charge against him and had been properly advised of his rights under the teacher tenure act. Prior to the taking of testimony, counsel for the board advised the board members that their function was to decide impartially whether there was reasonable and just cause to support the charges brought on the basis of the evidence produced at the hearing. 6
A board member asked:
The administration and Mr. Ferrario each presented witnesses. Ferrario's testimony substantially corroborated that of the complainant's.
At the close of testimony, the attorney for the administration stated that "the charges were issued by this Board" and that they had been filed by the administration, which had established Ferrario's improper conduct beyond a doubt. 7 In his closing statement, Ferrario's counsel discussed the role of the board.
At the close of the hearing, the board president advised the members that Mr. Ferrario was to be presumed innocent until there was a finding of fact to the contrary within the guidelines of the tenure law. Until a decision was reached by the board, there was to be no discussion of the case with anyone, including other board members. 8 The board's attorney reminded the members that he was present merely to advise the board of legal standards and not to give his opinion of the case.
In a decision dated June 17, 1981, the Board of Education unanimously found reasonable and just cause to terminate Mr. Ferrario's employment with the school district. The board stated that its decision was based solely on the official charge of improper conduct consisting of sexual advances and misconduct and on the evidence presented at the hearing. The board noted that Ferrario's counsel had raised no objection to the board's procedure at any time. 9
The letter dated May 11, 1981, advising Ferrario of the board's initial decision to proceed to formal hearing, had not been entered into evidence and thus was not considered by the board in reaching its decision. The parties had stipulated to the letter's admission into evidence should Ferrario appeal from the board's decision. 10
Plaintiff Ferrario filed a claim of appeal with the Michigan Teacher Tenure Commission. The commission granted Ferrario's motion for summary judgment on the basis that the school board had shown bias or a probability of bias by placing itself in the role of accuser as well as judge. This decision was based on a review of the board minutes, the notice of April 27, and the May 11 letter. The minutes stated that the board had moved "to bring formal charges against Mr. Ferrario" under the teacher tenure act. The commission refused to consider any further review of the official record of proceedings on the basis that board minutes cannot be altered or supplemented by parol testimony. Tavener v. Elk Rapids Rural Agricultural School Dist., 341 Mich. 244, 67 N.W.2d 136 (1954). Without further review of the case on its merits, the commission ordered the reinstatement of Ferrario with back pay. 11
On appeal, the circuit court ordered that the matter be remanded to the Tenure Commission for a hearing on the merits. The circuit judge stated that he would not have found that the local board was prejudiced if he had been sitting on the Tenure Commission. However, since there was evidence on the record which could support the Tenure Commission's finding that the local board's actions gave the appearance of partiality, the court affirmed. While the circuit court did not find the hearing "so defective that it could be considered a nullity" as the Tenure Commission had, it allowed Ferrario back pay from the date of its decision until a final decision on the merits by the commission. The court held that the school board need not reinstate Ferrario prior to a final decision on the merits. 12
Plaintiff Ferrario appealed the circuit court's order. The Court of Appeals affirmed that there was sufficient evidence to support the Tenure Commission's finding that the Board of Education had acted to bring charges against the plaintiff. The Court of Appeals found "an impermissibly great risk of bias" where "a controlling board becomes involved in the decision whether to bring charges against a teacher, acts to bring those charges, and later sits as decisionmaker." The Court affirmed the remand to the Tenure Commission and awarded Ferrario unconditional back pay.
13
This Court granted leave to appeal.
The teacher tenure act, M.C.L. Sec. 38.71 et seq.; M.S.A. Sec. 15.1971 et seq., was enacted to protect teachers from arbitrary and unreasonable practices. A discharge may be made only for reasonable and just cause, and only after following the procedures established by the act. M.C.L. Sec. 38.101; M.S.A. Sec. 15.2001. Rehberg v. Melvindale, Ecorse Twp. Bd. of Ed., 330 Mich. 541, 547, 48 N.W.2d 142 (1951) (Rehberg I ).
Under the act, a board must determine whether or not to proceed on a given charge. M.C.L. Sec. 38.102; M.S.A. Sec. 15.2002 provides:
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