Plymouth-Canton Community School Dist. v. State Tenure Com'n
| Decision Date | 14 March 1988 |
| Docket Number | PLYMOUTH-CANTON,No. 88735,88735 |
| Citation | 166 Mich.App. 331,419 N.W.2d 783 |
| Parties | , 45 Ed. Law Rep. 255 COMMUNITY SCHOOL DISTRICT, Plaintiff-Appellant, v. STATE TENURE COMMISSION, Defendant-Appellee, and Scott Kurtz, Intervening-Defendant-Appellee. |
| Court | Court of Appeal of Michigan — District of US |
Clark, Hardy, Lewis, Pollard & Page, P.C. by William G. Albertson, Birmingham, for petitioner.
Hiller, Larky & Hoekenga by Steven J. Amberg, Southfield, for Scott Kurtz.
Before KELLY, P.J., and HOOD and OPPLIGER, * JJ.
The Plymouth-Canton Community School District appeals as of right from a circuit court order entered October 18, 1985, affirming a decision of the State Tenure Commission ordering the school district to reinstate a teacher and award back pay. The Tenure Commission relied on procedural grounds in reversing an order of the school board suspending Scott Kurtz without pay. Neither the Tenure Commission nor the circuit court reached the merits of the disciplinary action taken by the school board. We reverse and remand.
The case against Scott Kurtz commenced in November of 1982, when the superintendent of the Plymouth-Canton Community School District filed written charges with the Board of Education alleging that Kurtz had violated the school district's policy concerning the use of physical force against a student. By resolution of November 8, 1982, the board accepted the charges and commenced disciplinary proceedings pursuant to the teacher tenure act, M.C.L. 38.71 et seq.; M.S.A. Sec. 15.1971 et seq. Kurtz was provided with a copy of the charges, the board's resolution suspending him, and a notice of hearing.
Kurtz requested a private hearing, which commenced on December 15, 1982. 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, Plymouth-Canton Community School District, was represented by attorney William G. Albertson, who was a member of the same law firm as Pollard.
At the commencement of the hearing, Kurtz moved to voir dire hearing officer Pollard and members of the board of education and objected to the board's order vesting in the hearing officer the discretion to rule on procedural and evidentiary matters, subject only to a vote by the board. By order dated January 12, 1983, Pollard denied the motion to voir dire the hearing officer, denied the objections to the hearing procedures adopted by the board, and granted in part the motion to voir dire the members of the board.
During the hearing Kurtz and several other witnesses testified regarding an incident that occurred on October 22, 1982, between Kurtz and eleven-year-old John James. Kurtz discovered James in an unauthorized location and a scuffle ensued when Kurtz attempted to direct James to his classroom and then to the principal's office. The nature and the gravity of the scuffle were the subject of conflicting testimony.
At the close of the testimony, both parties submitted proposed findings of fact and conclusions of law. The board's deliberations were attended by Pollard, who answered questions on legal points and took notes which he later used to prepare a draft decision. The board issued its decision on February 21, 1983, in which it concluded that Kurtz had violated school policy and had breached professional ethics by using excessive and unreasonable force against a student, causing physical injury. The board suspended Kurtz without pay for the balance of the 1982-83 school year and for the first semester of the 1983-84 school year.
Kurtz appealed the board's decision to the State Tenure Commission, claiming that the board had failed to comply with the due process requirement of M.C.L. Sec. 38.101; M.S.A. Sec. 15.2001 and that the record did not support the board's finding that he had used unreasonable force against John James. Kurtz' due process challenge was directed at appointment of Pollard as hearing officer when he and the attorney representing the school district were members of the same law firm and the fees of both attorneys were paid by the Plymouth-Canton Community School District.
At a hearing conducted before the Tenure Commission on April 25, 1983, the superintendent of schools testified that Pollard had been chosen to act as their attorney, even though the board members knew of his partnership in the school district attorney's law firm. Pollard testified about the decision-making procedures used by the board of education in regard to Scott Kurtz, explaining that he did not draft the charges against Kurtz but did advise the board about the legal ramifications of the charges. Pollard also provided the board with an overview of the disciplinary proceedings under the teacher tenure act.
The Tenure Commission issued its decision on November 8, 1984, finding that Kurtz' right to due process of law was violated by Pollard's mere presence at the board's deliberations. Concluding that the error could not be cured by the commission's de novo review and that Kurtz' reinstatement was mandated by the substantial procedural error, the commission reversed the decision of the board and awarded Kurtz back pay.
The board petitioned for review in the Ingham Circuit Court pursuant to the provisions of the teacher tenure act. Following the circuit court hearing, the reviewing judge concluded that the commission's decision "that Mr. Kurtz did not receive a fair hearing was not a substantial and material error of law."
Neither the Tenure Commission nor the circuit court considered the sufficiency of the evidence establishing Kurtz' use of excessive and unreasonable force.
Initially, the board argues that the Tenure Commission lacked authority to evaluate whether the proceedings before the board conformed with principles of due process since that is a matter of constitutional interpretation reserved for the courts. We disagree. The Michigan Supreme Court has clearly held that the State Tenure Commission is vested with the authority to evaluate the fairness of the hearing accorded a disciplined teacher by the controlling school board, as defined by the controlling statute, M.C.L. Sec. 38.104; M.S.A. Sec. 15.2004. Rehberg v. Bd. of Ed. of Melvindale, Ecorse Twp. Sch. Dist. No. 11, 345 Mich. 731, 737, 77 N.W.2d 131 (1956); Ferrario v. Escanaba Bd. of Ed., 426 Mich. 353, 373-380, 395 N.W.2d 195 (1986).
Our primary task on review, therefore, is to determine whether the circuit court erred in affirming the commission's conclusion that the school board had deprived Kurtz of his right to a fair hearing.
When the circuit court rendered its decision in this case, the Supreme Court had not yet released its decision in Ferrario, supra, in which it articulated the test to be applied when evaluating a teacher's due process challenge to disciplinary proceedings conducted before a controlling school board. To succeed with a due process challenge, a tenured teacher must show actual bias in the proceedings or a risk or probability of unfairness that is too high to be constitutionally tolerable. 426 Mich. 379-380, 395 N.W.2d 195. Application of the Ferrario test in this case imposes upon Kurtz the burden of showing (1) actual bias on the part of hearing officer Pollard because of his...
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Plymouth-Canton Community Schools v. State Tenure Com'n
...show that Pollard had a pecuniary interest in the outcome or is enmeshed in other matters involving the school district. [166 Mich.App. 331, 339, 419 N.W.2d 783 (1988).] The Court remanded the case to the Tenure Commission for an evaluation of the merits of the disciplinary action taken by ......
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Hagerty v. State Tenure Com'n
...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 Cour......