Lewis v. Bridgman Pub. Schools (On Rem.)

• Decision Date: 01 July 2008
• Docket Number: Docket No. 261349.
• Parties: LEWIS v. BRIDGMAN PUBLIC SCHOOLS (ON REMAND).
• Court: Court of Appeal of Michigan — District of US

760 N.W.2d 242

279 Mich. App. 488

LEWIS v. BRIDGMAN PUBLIC SCHOOLS (ON REMAND).

Docket No. 261349.

Court of Appeals of Michigan.

Submitted March 26, 2008, at Lansing.

Decided July 1, 2008, at 9:20 a.m.

Kalniz, Iorio & Feldstein Co., L.P.A. (by Fillipe S. Iorio), Grand Rapids, for James Lewis.

Thrun Law Firm, P.C. (by Roy H. Henley), East Lansing, for the Bridgman Public Schools.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and

Joshua S. Smith, Assistant Attorney General, for the State Tenure Commission.

Before: SERVITTO, P.J., and FITZGERALD and TALBOT, JJ.

ON REMAND

FITZGERALD, J.

This teacher-tenure case returns to this Court on remand from our Supreme Court. Respondent Bridgman Public Schools (the school district) appeals by leave granted from the State Tenure Commission's February 18, 2005, decision and order that reduced petitioner James Lewis's discipline from discharge, as recommended by the hearing officer, to a suspension without pay or benefits through the end of the 2005-2006 school year. On May 8, 2007, a majority of this panel reversed, concluding that the tenure commission had applied an incorrect standard of review.¹ Lewis v. Bridgman Pub. Schools, 275 Mich.App. 435, 737 N.W.2d 824 (2007), rev'd 480 Mich. 1000, 742 N.W.2d 352 (2007).

Lewis sought leave to appeal in the Supreme Court. In lieu of granting leave to appeal, the Supreme Court reversed this Court's decision² and remanded "for consideration of whether the commission's decision was arbitrary, capricious, or an abuse of discretion; or unsupported by competent, material, and substantial evidence on the whole record." Lewis v. Bridgman Public Schools, 480 Mich. 1000, 742 N.W.2d 352 (2007).

The background facts were set forth in this Court's previous opinion:

This case arose when Lewis, a high school teacher with 12 years of teaching experience, presented his 18-year-old male teaching assistant, a student at the high school, with an air gun as a Christmas gift. Presentation of the gift was made while on school property. The air gun, described as an accurate replica of a Ruger semi-automatic handgun, along with ammunition, was presented to the teaching assistant in the presence of other students. The air gun discharges plastic pellets and has a muzzle velocity of over 250 feet per second, which is comparable to other types of pellet guns and BB rifles. Although the box containing the air gun indicated specific warnings, particularly regarding the need for eye protection, Lewis did not provide such protective gear as part of the student's gift. Lewis did not instruct the student on safe use of the air gun or any dangers regarding its use. In addition, Lewis failed to solicit or secure the advice or permission of school administrators or the student's parents before the selection and presentation of the gift.

The student was uncomfortable with accepting this gift and feared expulsion for having the air gun on school property. This concern was legitimate, as possession of the gun was violative of School District Policy No. 5610.01, which states in relevant part:

"In compliance with State and Federal law, the Board shall expel any student who possesses a dangerous weapon in a weapon-free school zone * * *

"For purposes of this Policy, a dangerous weapon is defined as `a firearm, dagger, dirk, stiletto, knife with a blade over three (3) inches in length, pocket knife opened by a mechanical device, iron bar, or brass knuckles' or other devices designed to or likely to inflict bodily harm, including, but not limited to, air guns and explosive devices."

The air gun remained in an unlocked storage room in Lewis's classroom for several weeks before the student took the air gun home. When the student informed his parents of the gift, they complained to the school, which resulted in the school district's decision to proceed with charges for Lewis's discharge. [Lewis, supra, 275 Mich.App. at 437-438, 737 N.W.2d 824.]

Lewis was charged with abrogating his responsibility to perform his duties in a professional manner and to act as an appropriate example and role model for students. He was also charged with insubordination for violating the school district's policy on staff conduct and ethics, which prohibits staff members from possessing or storing weapons on school property. The policy defines "weapon" to include "air and gas-powered guns."

At the tenure hearing, the school district supported its request for Lewis's discharge with evidence of several prior incidents exemplifying Lewis's poor judgment. These incidents included (1) a 1993 remark to a student high jumper that he should arch his back as if "there is a vagina in the sky," which resulted in a letter of reprimand, (2) a 1993 incident involving sleeping in the school building, (3) arriving at work more than one hour late on one occasion, (4) making a sexual comment to a female student, (5) bringing his dog onto school property, resulting in the dog biting a student, (6) allowing his dogs to run loose in the school building during Christmas break, (7) a comment to a female student that she did not know who her father was, which generated a letter of concern, (8) telling his class that he had been to a condom shop "but they didn't have [his] size," which resulted in a two-day suspension without pay in 2002, and (9) inappropriate physical contact with a female student after he approached the student from behind, wrapped his arms around her mid-section, and lifted her off the floor, which generated a letter of concern. In March 2003, Lewis was placed in an individualized development plan that lasted for two months, which he successfully completed.

Evidence of Lewis's many positive contributions to the school was also presented at the hearing. He served as class advisor on two occasions, started an environmental-science stewardship program and a recycling program, served on the school's curriculum committees, served as science-club advisor, coached the Science Olympiad team, led students on community-service events, and organized science-related field trips. Lewis has coached various middle-school sports teams, developed the cross-county program for middle school, supervised the intramural sports program, volunteered with the high school sports program, and participated in summer sports programs. His fellow teachers and coaches described him as positive, upbeat, good with students, an effective and outstanding teacher, and a passionate and effective coach. Two of Lewis's former students testified that he was an effective teacher.

The hearing officer issued a 28-page preliminary decision and order, finding that the school district had proven reasonable and just cause to terminate Lewis's employment. The hearing officer found that Lewis "showed a serious lack of professional judgment" in giving the air gun to the student, and that the air gun was "not a mere toy." The hearing officer found that Lewis had ample opportunity to reflect on his choice of gift, that he disregarded warnings on the gun box, that he did not provide the student with any protective eye gear, that he did not seek permission from the student's parents before giving such a gift, that he knew nothing of the student's family, including whether there were young children living in the family's home, and that the gift placed the student at risk of expulsion. The hearing officer further found that the realistic appearance of the air gun had the potential to lead to "an extremely dangerous law enforcement response." After applying the discipline factors in Szopo v. Richmond Comm. Schools Bd. of Ed., State Tenure Commission Decision (Docket No. 93-60, decided November 29, 1994), the hearing officer determined that discharge was appropriate on the basis of the following: (1) Lewis's behavior was planned and intentional, (2) the incident involved a realistic replica of a semi-automatic weapon, (3) the incident placed the school community and the student at risk, (4) the incident caused considerable anxiety to the student and his family, and (5) Lewis's prior lapses of judgment. The hearing officer explained his reasons for recommending Lewis's discharge:

There was undisputed testimony of [Lewis's] significant contributions to the Bridgman school community, and I cannot conclude from the evidence that his motive in this instance was improper. Nevertheless, given [Lewis's] history of significant lapses in judgment, the egregious violation of professional decorum in his choice of [the students] gift, and the school districts legitimate concern to maintain a safe environment free of weapons, including replica weapons, I am persuaded that discharge is the appropriate remedy in this case. I find that this is the sole remedy which both reflects the seriousness of appellants conduct and serves as a clear message that such conduct will not be tolerated.

Both parties filed exceptions to the hearing officer's preliminary decision and order.

The tenure commission issued a 32-page decision and order, rejecting all but one of the parties' exceptions. The tenure commission disagreed with the hearing officer's recommendation of discharge, and instead imposed a suspension without pay until the end of the 2005-2006 school year. The tenure commission affirmed the hearing officer's conclusions in all other respects, stating that the hearing officer's findings "clearly support his determination that [Lewis] demonstrated a serious lack of professional judgment" given his failure to consider "possible ramifications" of giving the gift to the student while on school property, particularly given the "close resemblance" of the air gun "to an actual semi-automatic pistol." The tenure commission applied the Szopo factors, and was "left with the definite conclusion that [Lewis's] misconduct was both egregious and a clear violation of the conduct expected of a teaching professional." The tenure commission was also "...