Lipka v. Brown City Community Schools

• Decision Date: 20 November 1978
• Docket Number: Docket Nos. 56795,No. 2,56796,2
• Citation: 271 N.W.2d 771,403 Mich. 554
• Parties: Matthew LIPKA and Sharon Beebee, Plaintiffs-Appellees, Plaintiffs-Appellants, v. BROWN CITY COMMUNITY SCHOOLS, Defendant-Appellant, Defendant-Appellee. Calendar
• Court: Michigan Supreme Court

Page 771

271 N.W.2d 771

403 Mich. 554

Matthew LIPKA and Sharon Beebee, Plaintiffs-Appellees Plaintiffs-Appellants, v. BROWN CITY COMMUNITY SCHOOLS, Defendant-Appellant, Defendant-Appellee.

Docket Nos. 56795, 56796.

Calendar No. 2.

Supreme Court of Michigan.

Argued on Rehearing Jan. 3, 1978.

Decided Nov. 20, 1978.

Foster, Swift & Collins, P. C., by Lynwood E. Beekman, George M. Brookover, Lansing, for Matthew Lipka and Sharon Beebee.

Thrun, Maatsch & Nordberg by Thomas J. Nordberg, Harry J. Zeliff, Donald J. Bonato, Lansing, for Brown City Community Schools.

Erwin B. Ellmann, Levin, Levin, Garvett & Dill, Southfield, for amicus curiae Mich. Ed. Assn.

Michigan Ass'n of School Boards by William E. Lobenherz, Lansing, for Michigan Ass'n of School Boards, amicus curiae.

Fieger, Golden & Cousens by Mark H. Cousens, Southfield, for Michigan Federation of Teachers, AFL-CIO, amicus curiae.

KAVANAGH, Chief Justice.

When this case was first submitted, we were evenly divided over the question of whether a school board's written statement that a probationary teacher's work is unsatisfactory must include reasons for that conclusion.

I wrote to answer this question affirmatively, requiring school boards to provide reasons for their action. I was of the opinion that such a policy would prevent arbitrary and capricious school board action. Justices Williams and Fitzgerald joined in that opinion.

Justice Coleman, joined by Justices Levin and Ryan, wrote to answer the question negatively, finding that while definite written notice of satisfactory or unsatisfactory work was mandated by the Teachers' Tenure Act, M.C.L. § 38.71 Et seq.; M.S.A. § 15.1971 Et seq., school boards were not required to include reasons for their conclusions.

Because of our even division we ordered the cause resubmitted and Justice Moody has written to adopt the view expressed in my first opinion. With apology for any embarrassment my change of mind may cause, I write to say that I am now convinced that reasons need not be stated.

My confession of error should not be taken as a retreat from the position expressed in my first opinion that the Tenure Commission was correct in accepting jurisdiction to decide the question here involved.

I

The Act's provision, M.C.L. § 38.83; M.S.A. § 15.1983, that the board give written notice to probationary teachers of unsatisfactory work does not include a mandate that a statement of reasons accompany that notice. I find it unnecessary to read a "reason" requirement into the provision in order to effect the Act's policy.

A probationary period is provided in the Act and distinguished from tenure to afford a trial period during which a controlling board may make a subjective determination of whether a certain teacher satisfies that district's particular needs and policy. We should not require that such a procedure meet an objective standard applicable to all school districts.

The absence of provision for hearing at the school board level and for review of a board's decision that a probationary teacher's work was unsatisfactory in this Act, which provides such a procedure for hearing and a forum for review, the Tenure Commission, where the issue is the propriety of the discharge of a tenured teacher, indicates that it was not intended that a school board's determination of whether a probationary teacher has completed the period of probation satisfactorily would be subject to review by the Tenure Commission.

The Act identifies arbitrary and capricious policies (Munro v. Elk Rapids Schools, 383 Mich. 661, 688, 178 N.W.2d 450 (1970), On Rehearing, 385 Mich. 618, 189 N.W.2d 224 (1971) at which it is directed. A teacher no longer can be continued in a probationary status indefinitely; after two, and sometimes three, years of employment without timely notice of unsatisfactory work, the teacher obtains tenure and cannot thereafter be discharged except for cause. Notice of non-reappointment must be given within the time stated in the act so that the teacher has adequate time to seek other employment for the next school year.

Adoption of an impermissible policy contrary to the spirit of the act (see E. g., Wilson v. Flint Board of Education, 361 Mich. 691, 106 N.W.2d 136 (1960)) is not demonstrated by showing that an arguably "incorrect" determination was made in a particular case.

The Tenure Commission may not assay a board's reason for concluding the work unsatisfactory. The Act is followed when the notice of unsatisfactory work is timely given whether based on good, bad or unstated reasons. If timely notice of unsatisfactory work is given, no entitlement to tenure arises under the Act, and therefore the Due Process Clause does not require a hearing. See Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).

II

For the reasons set forth in my opinion on the earlier submission, the circuit court and Court of Appeals erred in deciding that the Tenure Commission does not have jurisdiction to decide the question here involved. If a teacher claims tenure as a result of satisfactory completion of probation, the determination of timeliness or legal effect of a notice of unsatisfactory work is always within the jurisdiction of the Tenure Commission.

The board's notice in this case was effective. The teachers did not satisfactorily complete their probationary period so as to be entitled to tenure.

Accordingly, the Court of Appeals is reversed. The order of reinstatement is set aside and the matter remanded to the Tenure Commission with instructions to dismiss.

No costs. A public question.

LEVIN, COLEMAN and RYAN, JJ., concur.

MOODY, Justice (dissenting).

We granted rehearing in these cases to reconsider the questions which previously had divided our Court. 399 Mich. 704, 252 N.W.2d 770 (1977). In those cases, we were presented with two questions involving the teachers' tenure act, M.C.L. § 38.71 et seq.; M.S.A. § 15.1971 Et seq.:

"(1) Whether a teacher who alleges that the controlling board failed to provide him with proper notification as to whether or not his work was unsatisfactory and that his services would be discontinued at least 60 days before the close of the last school year of his probationary period achieves tenure status for the limited purpose of allowing him to appeal the board's action to the State Tenure Commission?

"(2) Whether a controlling board must set forth the reasons why it has determined a probationary teacher's work to be unsatisfactory in the statement delivered to the probationary teacher pursuant to M.C.L. 38.83; M.S.A. 15.1983?" 399 Mich. 706-707, 252 N.W.2d 771.

For the reasons set forth in the opinion of Chief Justice Kavanagh heretofore filed herein (with Justices Williams and Fitzgerald concurring) and reported at 399 Mich. 706-720, 252 N.W.2d 770, we would answer both questions in the affirmative.

Specifically, we would hold:

"(1) A teacher who alleges that the controlling board failed to provide him with proper notification as to whether or not his work was unsatisfactory and that his services would be discontinued at least 60 days before the close of the last school year of his probationary period, pursuant to M.C.L. 38.83; M.S.A. 15.1983, achieves tenure status for the limited purpose of allowing him to appeal the board's determination to the State Tenure Commission;

"(2) The controlling board must set forth the reasons why it has determined a probationary teacher's work to be unsatisfactory in the definite written statement delivered to the probationary teacher pursuant to M.C.L. 38.83; M.S.A. 15.1983." 399 Mich. 719, 252 N.W.2d 770.

I

Chief Justice Kavanagh succinctly analyzed the reason for allowing the probationary teachers to appeal the action of the school board to the State Tenure Commission:

"Plaintiffs contend that they became tenured by operation of law due to the failure of the board to properly notify them at least 60 days before the close of the last probationary school year, and therefore were entitled to appeal the action of the board to the State Tenure Commission.

"Plaintiffs recognize that only teachers who have 'achieved tenure status may appeal any decision of a controlling board * * * to a state tenure commission'. They argue, however, that because the required notice of nonretention was ineffective (see discussion, Infra ), they could not be denied tenure, and therefore 'achieved tenure' by operation of law on the 59th day prior to the close of the last school year of their probationary period.

"Defendants, however, point to M.C.L. 38.81; M.S.A. 15.1981, which states that '(a)ll teachers during the first 2 years of employment shall be deemed to be in a period of probation'. Thus, as plaintiffs had not completed two years of employment, they were still probationary teachers and had not 'achieved tenure status' allowing them to appeal to the Tenure Commission.

"In the case at bar, the Tenure Commission accepted the appeal and ordered plaintiffs reinstated.

"The circuit court agreed that the Tenure Commission had jurisdiction, finding that 'since the notice was defective, it constituted no notice at all and thus the appellees acquired tenure by operation of law. * * *

(W)hen the teachers received the defective notice they then acquired tenure on the 59th day before the end of the school year for this purpose. Nothing the school board could do after the 59th day before the end of the school year could remove the appellees from a tenure status that they acquired by virtue of the defective notice and from that time on the school board had to treat them as tenured teachers. Thus being tenured teachers they were within the purview of the Tenure Commission and had a right to immediately petition the Tenure Commission for a determination.' "In Young v. Hazel Park School District, No. 64-2 (State Tenure Commission, June 23, 1965), the commission was presented with a case of alleged improper notice to a probationary teacher....