Freiberg v. Board of Educ. of Big Bay De Noc School Dist.

• Decision Date: 29 May 1975
• Docket Number: Docket No. 20304,No. 2,2
• Citation: 232 N.W.2d 718,61 Mich.App. 404
• Parties: Carl FREIBERG, Plaintiff-Appellee, Cross-Appellant, v. BOARD OF EDUCATION OF BIG BAY DE NOC SCHOOL DISTRICT, Defendant-Appellant, Cross-Appellee, and Michigan Teacher Tenure Commission, Defendant
• Court: Court of Appeal of Michigan — District of US

Page 718

232 N.W.2d 718

61 Mich.App. 404

Carl FREIBERG, Plaintiff-Appellee, Cross-Appellant, v. BOARD OF EDUCATION OF BIG BAY DE NOC SCHOOL DISTRICT Defendant-Appellant, Cross-Appellee and Michigan Teacher Tenure Commission, Defendant.

Docket No. 20304.

Court of Appeals of Michigan, Division No. 2.

May 29, 1975.

Released for Publication Sept. 9, 1975.

Keller, Thoma, McManus, Toppin & Schwarze by Thomas H. Schwarze, Detroit, for defendant-appellant.

Foster, Lindemner, Swift & Collins, P.C. by Lynwood E. Beekman, Lansing, for plaintiff-appellee.

Before V. J. BRENNAN, P.J., and D. E. HOLBROOK and CAVANAGH, JJ.

CAVANAGH, Judge.

The defendant, Board of Education of Big Bay De Noc School District, appeals by leave granted from an Ingham County Circuit Court judgment reversing the decision of the Teacher Tenure Commission and directing that Commission to resolve the merits of the dispute between the plaintiff Carl Freiberg and the defendant.

The plaintiff is a tenure teacher who was employed continuously at the defendant school district from the beginning of the 1967--68 school year until his termination in late August of 1971. On the morning of the first day of the 1971--72 school year, August 30, 1971, the superintendent of the district, Frank Stupak, called plaintiff into his office to inform him that his services were no longer required and that he had been 'laid off'. The next day plaintiff received a letter dated August 27, 1971, from the secretary of the defendant Board of Education advising him that, because of legal and financial conditions beyond the Board's control, he would not be reemployed for the 1971--72 school year.

Mr. Freiberg, by a letter dated August 31, 1971, requested a hearing pursuant to Article IV of the Teachers' Tenure Act. M.C.L.A. § 38.101 Et seq.; M.S.A. § 15.2001 Et seq. On September 27, 1971, Freiberg and another teacher, who was 'laid off' at the same time, filed petitions with the Teacher Tenure Commission. The latter teacher, prior to the time the Commission held a hearing, withdrew his petition and requested that the matter concerning his termination be closed. In his petition plaintiff alleged that the actual reasons underlying the Board of Education's decision not to reemploy him were not based upon financial conditions, but rather were because of his performance as a teacher and his other related activities. He further alleged that 'by the retention of new personnel and a careful revision of class schedules', the Board had violated his rights under the Teachers' Tenure Act.

On October 11 and 12, 1971, the Board of Education held a joint hearing on plaintiff's and the other teacher's appeal. By a letter dated November 8, 1971, plaintiff was advised that the Board had decided to uphold its prior decision to terminate his employment.

Almost a year later, on September 29, 1972, the Teacher Tenure Commission held a hearing on plaintiff's petition. The Commission received testimony from the school superintendent, State Representative Charles Varnum, and a representative of the intermediate district concerning the amount of money in the school operating budget and the amount available in state financial aid. The position of the defendant was that declining class enrollment and consequentially declining state funds required it to make a necessary reduction in its teaching staff. The Board alleged that the plaintiff had less seniority than any employee scheduled to teach the three classes in which the plaintiff was certified.

The plaintiff countered that class schedules were 'juggled' to eliminate him and that there were no financial exigencies which required the termination of his employment. Plaintiff presented considerable testimony concerning the animosity felt by Superintendent Stupak and members of the Board toward him as a result of his leadership in the local bargaining unit of the teachers' association in the school district. The 500-page transcript of the Commission hearing contains myriad instances both major and minor, of factual contrariety.

By an opinion dated January 30, 1973, the Teacher Tenure Commission held that it lacked jurisdiction to review the plaintiff's dismissal because, under provisions of the Tenure Act, the Board of Education had the sole prerogative to decide budgetary matters:

'An investigation by this commission into the necessity or reasons for layoffs would soon abrogate the rights of the school board and nullify the purpose of (M.C.L.A. § 38.105; M.S.A. § 15.2005) . . .. Boards of any school district are within their rights to determine the number of professional staff to be hired in any given contractual year, and to adopt a budget whereby the income will balance expenditures.'

Commission member Donald A. Schoenrath issued a strong dissent from the Commission opinion. His dissenting opinion concluded not only that the Commission had jurisdiction to decide the dispute, but also that the record 'clearly shows the Appellee Board and its agents deliberately and blatantly schemed to arbitrarily and capriciously rid themselves of a qualified and capable teacher'. Contrary to the defendant's assertions on appeal, it is clear from the majority opinion that it did not reach the factual question of whether the Board used the subterfuge of 'necessary reduction in personnel' to rid themselves of the plaintiff.

On February 22, 1973, the plaintiff petitioned the Ingham County Circuit Court to reverse the decision of the Commission and to remand the case for a determination on the merits of whether his dismissl was for legitimate financial reasons or was a bad faith attempt to circumvent the protection of the Teachers' Tenure Act.

The circuit court, after requesting briefs and hearing oral argument, issued an order remanding the case for a hearing on the merits before the Commission. From this order, the defendant Board of Education appeals, arguing that the Commission lacks jurisdiction. The plaintiff has filed a cross-appeal arguing that this Court should make an independent review of the record and order the Board to immediately reinstate him with such back pay as he may be due. This Court granted the application for leave to appeal on November 21, 1974.

Although the parties have submitted multiple issues for review, the substance of the question to be decided by this Court can be compressed into one issue: does the Teacher Tenure Commission have jurisdiction to review the action of a school board which has terminated a tenured teacher's employment on the grounds of 'necessary reduction in personnel', in order to determine whether, as a factual matter, the reduction in personnel was made in good faith or as a subterfuge to deprive a teacher of his or her rights under the tenure act?

The defendant cites the recent decision of Steeby v. Highland Park School District, 56 Mich.App. 395, 224 N.W.2d 97 (1974), as disposing of this issue in its favor. In that case, tenure teachers were advised that their contracts would not be renewed because of the necessity to eliminate certain positions for financial reasons. This opinion, authored by Judge VanValkenburg, phrased the issue as follows:

'Must tenure teachers be given a written 60-day notice and a hearing before the board of education, when, for economic reasons, their contracts are not renewed for the coming school year?' (Emphasis deleted.) 56 Mich.App. 395, 397, 224 N.W.2d 97, 98.

Deciding the question in the negative, Steeby found implicit in the Tenure Act the conclusion that school districts are excused from offering a tenure teacher an employment contract when it is necessary to reduce personnel. The Court could find no statute explicitly granting such teachers the right to timely notice. Further, Steeby concluded that the statutory right to a hearing before the local board of education was invoked only by bringing 'charges' under M.C.L.A. §§ 38.101, 38.102; M.S.A. §§ 15.2001, 15.2002. Judge VanValkenburg continued:

'Indeed, there would appear to be no real reason for a hearing where the reason for termination is a reduction in personnel rather than personal charges against a teacher, since the purpose of the hearing is to provide the opportunity for the teacher to answer the charges being brought against him. The protection which the act provides where the termination is the result of a reduction of personnel is not that of a pointless hearing but is rather that found in M.C.L.A. § 38.105, Supra, which provides that those tenure teachers thereby terminated shall be appointed to the next vacancy.' Id. at 399, 224 N.W. at 99.

The issue before the Court in Steeby was entirely different than that which confronts this Court. In the present case, the plaintiff raises no complaint as to notice and hearing. Indeed, he received a full hearing before the defendant Board. The Teacher Tenure Commission has correctly concluded that a hearing before the local board of education is not a prerequisite to the Commission's assertion of jurisdiction. Walters v. Garden City Board of Education (State Tenure Commission, Docket No. 69--2).

The purpose of the Teachers' Tenure Act, M.C.L.A. § 38.71 Et seq.; M.S.A. § 15.1971 Et seq., is to promote,

'* * * good order and the welfare of the State and of the school system by preventing removal of capable and experienced teachers at the personal whims of changing office holders.' Rehberg v. Board of Education of Melvindale, 330 Mich. 541, 545, 48 N.W.2d 142, 144 (1951).

And in Justice (now Chief Justice) T. G. Kavanagh's dissenting opinion in Munro v. Elk Rapids Schools, 383 Mich. 661, 689, 178 N.W.2d 450 (1970), Rev'd on rehearing 385 Mich. 618, 189 N.W.2d i24 (1971), the purpose of the act was further illuminated:

'The whole thrust of the act is to Limit the local boards' power in its employment of teachers. 'Its purpose is to maintain an adequate and competent teaching staff, free from political and personal arbitrary interference."

The Teacher...