Hagerty v. State Tenure Com'n

• Decision Date: 22 September 1989
• Docket Number: Docket No. 108561
• Citation: 179 Mich.App. 109,55 Ed. Law Rep. 1111,445 N.W.2d 178
• Parties: Kathleen HAGERTY, Plaintiff-Appellant, v. STATE TENURE COMMISSION and Board of Education of the Birmingham Public Schools, Defendant-Appellee, 179 Mich.App. 109, 445 N.W.2d 178, 55 Ed. Law Rep. 1111
• Court: Court of Appeal of Michigan — District of US

Page 178

445 N.W.2d 178

Kathleen HAGERTY, Plaintiff-Appellant, v. STATE TENURE COMMISSION and Board of Education of the Birmingham Public Schools, Defendant-Appellee,

Docket No. 108561.

179 Mich.App. 109, 445 N.W.2d 178, 55 Ed. Law Rep. 1111

Court of Appeals of Michigan.

Submitted March 13, 1989.

Decided Aug. 7, 1989.

Released for Publication Sept. 22, 1989.

[179 MICHAPP 110] Hiller, Hoekenga & Amberg by Steven J. Amberg and Joseph H. Firestone, Southfield, for Kathleen Hagerty.

Clark, Hardy, Lewis, Pollard & Page, P.C. by William G. Albertson, Birmingham for the Bd. of Educ. of the Birmingham Public Schools.

Before DOCTOROFF, P.J., and MAHER and MARILYN J. KELLY, JJ.

DOCTOROFF, Presiding Judge.

Kathleen Hagerty, a tenured teacher at Berkshire Middle School in the Birmingham School District, was discharged following a hearing before the Birmingham School District Board of Education. This decision was affirmed by the State Tenure Commission and the Ingham Circuit Court. She appeals as of right raising two issues which do not require reversal.

[179 MICHAPP 111]

I

Prior to the commencement of the hearing before the board, the board appointed attorney Dennis Pollard as hearing officer and granted him the authority to rule on motions and evidentiary matters subject to the board's right to overrule any of his decisions. The board also expressly retained the exclusive authority to evaluate and judge the facts. The charging party, the Birmingham School District, was represented by attorney William G. Albertson, who is a member of the same law firm as Pollard.

Hagerty claims that the due process requirement of M.C.L. Sec. 38.101; M.S.A. Sec. 15.2001 was violated because the board's hearing officer, Pollard, was from the same law firm as Albertson, the prosecuting counsel.

In Crampton v. Dep't of State, 395 Mich. 347, 351, 235 N.W.2d 352 (1975), our Supreme Court identified four situations where, without a showing of actual bias, the United States Supreme Court has disqualified a decision maker who:

(1) has a pecuniary interest in the outcome;

(2) "has been the target of personal abuse or criticism from the party before him";

(3) is "enmeshed in [other] matters involving petitioner ..."; or

(4) might have prejudged the case because of prior participation as an accuser, investigator, fact finder or initial decisionmaker [sic].

Hagerty claims Pollard possessed not only a constitutionally impermissible pecuniary interest in the outcome of the case, but was enmeshed in matters involving the case and was strongly identified with one of the parties. Hagerty argues that, given Pollard's interest in the outcome, the probability[179 MICHAPP 112] of actual bias exceeded constitutional tolerance and did not necessitate a showing of actual bias. We disagree.

This issue has been considered several times by this Court. In Arnold v. Crestwood Bd. of Ed., 87 Mich.App. 625, 651-652, 277 N.W.2d 158 (1978), the plaintiffs charged that they were denied due process of law because counsel for the board both represented the board's case and acted as an adviser to the board during the proceedings. This Court held that only if evidence of prejudice or bias clearly appears on the record will participation of counsel in the dual role constitute a violation of due process.

In Golembiowski v. Madison Heights Civil Service Comm., 93 Mich.App. 137, 142, 286 N.W.2d 69 (1979), lv. den. 408 Mich. 893 (1980), the plaintiff claimed that he was denied a fair trial because the attorney who prosecuted the case on behalf of the city was a member of the same law firm which included a partner who acted as legal adviser to the commission which heard the case. This Court concluded that, absent some indication of bias, the mere fact that two attorneys belonged to the same firm did not result in a constitutionally intolerable predicament.

In Niemi v. Kearsley Bd. of Ed., 103 Mich.App. 818, 821-822, 303 N.W.2d 905 (1981), the attorney who regularly served as the controlling school board's adviser represented the charging party in disciplinary proceedings before the same board. The Court stated:

We recognize that an attorney's dual role carries with it the potential for prejudice and find that the better practice is to appoint an independent attorney to represent the charging party at a dismissal hearing. We decline, however, to adopt a [179 MICHAPP 113] per se rule that would require reversal whenever an attorney performs both functions.

The Niemi Court found that the combination of investigative and judicial roles in an administrative hearing has been expressly upheld in federal and state courts where there has been no showing of actual bias. Id., p. 822, 303 N.W.2d 905. The Niemi Court found no showing of prejudice at the board hearing and additionally observed that because the plaintiff had received a de novo review before the State Tenure Commission, the plaintiff's rights were fully protected. Id., pp. 823-824, 303 N.W.2d 905.

In Ferrario v. Escanaba Bd. of Ed., 426 Mich. 353, 379-380, 395 N.W.2d 195 (1986), the Court held that a plaintiff does not have to show actual bias to show a violation of his due process rights, but the plaintiff must show a risk or probability of unfairness that is too high to be constitutionally tolerable.

Plymouth-Canton Community School Dist. v. State Tenure Comm., 166 Mich.App. 331, 338, 419 N.W.2d 783 (1988), involved the same hearing officer and charging party's attorney as in the case at bar. The Court held that application of the Ferrario test imposes upon the teacher the burden of showing (1) actual bias on the part of hearing officer Pollard because of his relationship with the charging party's attorney, or (2) a risk or probability of biased decision making that is so great as to be constitutionally intolerable. As in the instant case, the teacher had made no claim of actual bias. Furthermore, as in the instant case, neither the State Tenure Commission nor the trial court had based their decisions on actual bias. Therefore, the Plymouth-Canton Court held that the only inquiry was whether the risk or probability of bias was so great as to impermissibly taint the fairness of the [179 MICHAPP 114] proceedings. Citing Golembiowski and Niemi, the majority held that it again would decline to hold that the involvement of attorneys from the same firm in a single administrative proceeding, with one attorney acting in an advisory capacity and the other attorney acting in a representative capacity, per se constitutes a violation of due process. Id., p. 339, 419 N.W.2d 783. The Court found that Pollard did not serve as a decision maker. The board retained the power to decide the case on the merits. There was no evidence to show that Pollard had a pecuniary interest in the outcome or was enmeshed in other matters involving the school district. Crampton, supra.

However, Oppliger, J., dissented, stating:

Rudimentary due process contemplates a hearing before an impartial decision maker. It appears to me that it is repugnant to fairness and propriety that attorneys from the same law firm who are appointed by and paid by the same source, in this case the school board, represent both school board and the petitioner. I am therefore in favor of the adoption of a per se rule against situations in which the charging body and the factfinder are represented by attorneys who are from the same law firm. [Plymouth-Canton, pp. 340-341, 419 N.W.2d 783.]

Judge Oppliger observed that the hearing officer, attorney Pollard, denied the teacher's motion to voir dire Pollard, thus preventing the teacher from establishing actual bias or an intolerable risk of unfairness. This, Judge Oppliger concluded, required reversal because "it seems constitutionally intolerable to permit a hearing officer to deny a teacher's request to voir dire the hearing officer when the hearing officer is employed by the same attorney firm that represents the school district." Id., p. 341, 419 N.W.2d 783.

[179 MICHAPP 115] In the case at bar, in obvious response to Judge Oppliger's dissent in Plymouth-Canton, Pollard did not refuse Hagerty's request to voir dire Pollard. On voir dire, Pollard stated that he had not discussed the case with attorney Albertson, the board or the charging parties and had no knowledge of the case other than what the charges stated. He assured Hagerty that he would base his decisions on the law, that she would have an opportunity to appeal any alleged errors of law, that the board and not Pollard had the factual resolution responsibility, and that the board...