Lewis v. Bridgman Public Schools

• Decision Date: 08 May 2007
• Docket Number: Docket No. 261349.
• Citation: 737 N.W.2d 824,275 Mich. App. 435
• Parties: James LEWIS, Appellee, v. BRIDGMAN PUBLIC SCHOOLS, Appellant.
• Court: Court of Appeal of Michigan — District of US

737 N.W.2d 824

275 Mich. App. 435

James LEWIS, Appellee, v. BRIDGMAN PUBLIC SCHOOLS, Appellant.

Docket No. 261349.

Court of Appeals of Michigan.

Submitted December 12, 2006, at Lansing.

Decided May 8, 2007, at 9:05 a.m.

Released for Publication August 29, 2007.

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 Bridgman Public Schools.

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

TALBOT, J.

Bridgman Public Schools (the school district) appeals by leave granted the State Tenure Commission's rejection of the appointed hearing referee's decision to terminate the employment of James Lewis as a teacher and imposition of a long-term suspension without pay as the disciplinary consequence for his misconduct. We reverse and remand.

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.

Historically, a tenured teacher could appeal a school board's decision regarding discipline or termination directly to the State Tenure Commission. MCL 38.121.¹ The tenure commission was structured to act "as a board of review for all cases appealed" directly "from the decision of a controlling board." MCL 38.139.² The assigned standard of review for the conduct of an appeal from a controlling board required the tenure commission to "make a de novo decision on all questions of fact and law . . . [and] . . . review and consider the record made before the controlling board." Ferrario v. Escanaba Bd. of Ed., 426 Mich. 353, 367, 395 N.W.2d 195 (1986) (citations omitted). The "duty" and "authority" of the tenure commission to conduct a review de novo was affirmed by the Michigan Supreme Court, which required the commission "to determine `anew and as original questions' all issues of fact and law although those issues were theretofore decided by the school board, and to `make an independent finding of facts, opinionate upon the same, and enter an order accordingly.'" Lakeshore Bd. of Ed. v. Grindstaff (After Second Remand), 436 Mich. 339, 354, 461 N.W.2d 651 (1990) (citations omitted). The Court affirmed the authority of the tenure commission to "vary or reverse the finding of the school board without new material evidence being presented." Id. at 352-353, 461 N.W.2d 651.³

1993 PA 60 amended the teacher tenure act and significantly altered the procedures to be employed in the discharge or demotion of a tenured teacher and in the appeal of a controlling board's decision. MCL 38.71 et seq. 1993 PA 60 initiated the use of a hearing referee as an interim procedural step between a controlling board's decision to proceed with charges against a tenured teacher and review by the tenure commission. If the controlling board's decision is challenged, a hearing referee notifies the parties of a fixed hearing date. MCL 38.104(2). The hearing conducted by the hearing referee is in accordance with the Administrative Procedures Act (APA), MCL 24.271 to 24.287. MCL 38.104(4). The manner for conducting the hearing by the referee (and any subsequent "tenure commission review") is defined in MCL 38.104(5), which effectively mirrors the earlier version of the act defining the basic procedural format for the hearing. MCL 38.104(5)(a) to (e).

Notably, the hearing referee is required to "serve a preliminary decision and order in writing." MCL 38.104(5)(i) (emphasis added). The preliminary order "shall grant, deny, or modify the discharge or demotion specified in the charges." Id. If no exceptions are filed by either party to the preliminary decision of the hearing referee "the preliminary decision and order becomes the tenure commission's final decision and order." MCL 38.104(5)(j). However, either party may file "a statement of exceptions to the preliminary decision and order or to any part of the record or proceedings." Id.⁴ Although MCL 38.139 requires that "[t]he tenure commission shall act as a board of a review for all cases appealed from the decision of a controlling board," MCL 38.104(5)(l) provides that issues that are not addressed within the filed exceptions are deemed waived and "cannot be heard before the tenure commission or on appeal to the court of appeals." Specifically:

If exceptions are filed, the tenure commission, after review of the record and the exceptions, may adopt, modify, or reverse the preliminary decision and order. The tenure commission shall not hear any additional evidence and its review shall be limited to consideration of the issues raised in the exceptions based solely on the evidence contained in the record from the hearing. [MCL 38.104(5)(m) (emphasis added).]

These statutory modifications severely circumscribe the scope of the tenure commission's authority in the appeal process and imply that a de novo standard of review is no longer applicable.

At the time of oral argument for this appeal, this Court raised the issue regarding what the appropriate standard of review is in cases involving the tenure commission. Specifically, this Court noted that the vast majority of caselaw regarding the standard of review used by the tenure commission was decided before the amendment of the applicable statutes by 1993 PA 60. Historically, the tenure commission conducted reviews de novo of controlling board decisions and has, despite statutory amendment, continued to adhere to this practice without evaluating the continued propriety of this procedure. Because the amendment made by MCL 38.101 et seq. initiated significant procedural changes, including the use of an "administrative law judge" to conduct demotion and termination hearings, MCL 38.104, at oral argument we questioned the propriety of the continued use of a de novo standard of review. When the appellate attorneys for the parties were unable to authoritatively address this issue at oral argument, this Court invited the parties to submit supplemental briefs specifically addressing the appropriate standard of review to be used.

Statutory interpretation comprises a question of law, which this Court reviews de novo. Ayar v. Foodland Distributors, 472 Mich. 713, 715, 698 N.W.2d 875 (2005). The acknowledged legislative purpose of the teacher tenure act, MCL 38.71 et seq., is to protect teachers' rights and to eliminate arbitrary and capricious demotions or dismissals by school boards. Goodwin v. Kalamazoo Bd. of Ed., 82 Mich.App. 559, 573, 267 N.W.2d 142 (1978). MCL 38.101 permits the discharge or demotion of a tenured teacher "only for reasonable and just cause and only as provided in this act." The decision of the hearing referee is not subject to review by the tenure commission, unless exceptions are filed. MCL 38.104(5)(j), (m). Thus, review by the tenure commission is statutorily limited. Not only is the tenure commission precluded from addressing the hearing referee's findings if exceptions are not filed, the commission is also precluded from taking new evidence and must limit its review "to consideration of the issues raised in the exceptions based solely on the evidence contained in the record from the hearing." MCL 38.104(5)(m). Hence, the authority of the tenure commission is highly proscribed in the review process. These restrictions imply that the tenure commission's review is now limited to addressing the propriety and manner of the hearing conducted by the hearing referee to assure the decision for the discharge or demotion of a tenured teacher is not arbitrary or capricious. This is further supported within the act by reference to the tenure commission's role as a "board of review," and not an adjudicative body. MCL 38.139(1).

It is illogical and contrary to standard agency review procedures, as used in other administrative forums, to suggest that review by the tenure commission would continue to be de novo or that it is permissible for the commission to completely disregard the findings of fact by the...