Lakeshore Board of Education v. Grindstaff , 436 Mich. 339 ( 1990 )

AFTER SECOND REMAND

Levin, J.

(to reverse). The questions presented are (1) whether the State Tenure Commission may reduce the discipline imposed by a school board from discharge to suspension where it finds that the misconduct charged by a school board against a tenured teacher, while proven, did not constitute reasonable and just cause for discharge, and (2) if so, whether the Court of Appeals erred in reversing the Tenure Commission’s decision that there was not reasonable and just cause for discharge.

We conclude that the Tenure Commission is empowered to so reduce the discipline, and that its decisions that there was not reasonable and just cause for discharge and that an appropriate discipline was a six-month suspension were supported by the evidence and, accordingly, that the Court of Appeals erred in reversing the commission’s decision in this case.

i

John Grindstaff, a tenured teacher, was discharged by the Lakeshore Public Schools Board of Education after a hearing held by the school board pursuant to the provisions of the teacher tenure act.¹ The Tenure Commission, on appeal, reduced the discipline from discharge to suspension without pay for one semester. The circuit court affirmed. The Court of Appeals denied the school board’s application for leave to appeal. This Court remanded the case to the Court of Appeals for consideration as on leave granted.²

The Court of Appeals reversed and reinstated the decision of the school board.³ The Court said that Grindstaff, "[d]espite being constantly reprimanded, suspended twice and taking a one-year leave of absence,” was "still unable to reform his conduct,” that he continued to violate rules and directives after he was "warned, on at least four occasions, that future violations could result in his dismissal,” and that he was "repeatedly warned and reprimanded for using physical force on students, leaving his classes unsupervised for prolonged periods of time, and leaving the school building during school hours without permission.”

The school board had, said the Court of Appeals, made "diligent efforts to reform” Grindstaff’s behavior. The Court said that "a school board is justified in dismissing an insubordinate teacher who persistently refuses to abide by administrative rules and directives.” The Court said that the Tenure Commission’s decision to reduce the penalty to a one-semester suspension was not supported by competent, material, and substantial evidence. Another brief suspension was not, said the Court, "warranted by the evidence,” nor would it be "an appropriate penalty in light” of Grindstaff’s conduct.

Once again, this Court remanded the case to the Court of Appeals.⁴ The order of remand stated that the Court of Appeals should determine whether the Tenure Commission has the authority, where it concludes that a school board’s finding of misconduct was proven, to reduce to suspension a discipline of discharge ordered by the school board.

The Court of Appeals on the second remand⁵ found that the teacher tenure act does not authorize the Tenure Commission "to modify or reduce” a discipline from discharge to suspension and that the Tenure Commission erred in its construction of the act and in assuming such authority:

In modifying respondent’s dismissal the Tenure Commission took it upon itself to decide how best to discipline the teacher. There is no provision in the act which expressly or impliedly grants this power to the Tenure Commission. Its role was limited to determining if the dismissal was arbitrary or unreasonable. [Lakeshore Bd of Ed v Grindstaff (On Second Remand), 177 Mich App 225, 228; 441 NW2d 777 (1989).]

II

There were four charges. The first concerned an incident on March 3, 1983, and the second an incident two weeks later on March 17. Grindstaff had left his class unattended on those dates. The third charge referred to earlier incidents for which Grindstaff had received written reprimands or warnings and two suspensions, the longest of which was for three days.⁶ The fourth charge was insubordination and was based on the same allegations as the third charge.⁷

The first charge was that on March 3, 1983, Grindstaff had left his fourth-hour class for twenty to thirty minutes while his students took a test. Two students testified that other students were cheating during Grindstaff’s absence. Grindstaff said he was in a nearby classroom working a crossword puzzle. The exam was subsequently thrown out. The Tenure Commission found that a rule or policy requiring the teacher’s presence in the classroom and administrative permission to deviate from such rule to be reasonable, and that the evidence was sufficient to support the charge.

The second charge was that on March 17, 1983, Grindstaff had left his seventh-hour class unattended and unsupervised, without prior approval, for approximately fifteen minutes. Grind-staff testified that he left the classroom to seek out a student to confirm an appointment made at the request of the student’s parents. The evidence was conflicting whether he was gone five or fifteen minutes. The Tenure Commission found that Grindstaff’s reason for leaving was not compelling and that the charge was proven by a preponderance of the evidence.

The Tenure Commission, however, went on to find that the penalty of discharge imposed by the school board was inappropriate, and that there was not reasonable and just cause for discharge. The commission stated that while insubordination may constitute reasonable and just cause for discharge, insubordination does not automatically justify discharge in all cases. Grindstaff had shown himself to be a "true motivator” of students in his eighteen years of service. He had "demonstrated outstanding skills as an educator.” His was "the classic case of a good teacher, but a poor employee.”

Grindstaff had been suspended on two other occasions, the longest suspension was for three days. "Bearing in mind the concept of progressive discipline, as well as the nature of his March 1983, offenses—the only new misconduct which precipitated the instant case,” the commission found that a "lengthy suspension” would serve as an adequate deterrent to Grindstaff and others, and concluded that the record "established reasonable and just cause” for a suspension without pay for the first semester of the school year.⁸

III

The tenure act provides that after satisfactory completion of the probationary period, a teacher shall acquire tenure and "shall not be dismissed or demoted except as specified” in the act:⁹

—A tenured teacher may be "discharge^] or demot[ed]” only "for reasonable and just cause ”¹⁰

—A tenured teacher may appeal "any decision” of a school board to the state tenure commission.* ¹¹ —The Tenure Commission is "vested with such powers as are necessary to carry out and enforce the provisions of ” the act.¹²

—The Tenure Commission shall "act as a board of review for all cases appealed” from a decision of a school board.¹³

A

Grindstaff contends that the Tenure Commission has the authority to modify penalties imposed by a school board. He contends that the purpose of the act is to protect teachers’ rights and prevent turnover in the teaching profession. That purpose is achieved by de novo review of decisions of local school boards. De novo review means and requires that the Tenure Commission determine any penalty to be imposed. The commission’s decision was supported by the record. The Court of Appeals erred in reversing the Tenure Commission’s decision.¹⁴

The school board contends that while the Tenure Commission reviews the decision of a school board de novo, that power does not extend to the modification of discipline imposed by a school board. Absent a determination that there was a procedural irregularity or that the school board acted arbitrarily or capriciously in imposing discharge, the Tenure Commission must affirm a discharge decision where the charged misconduct is proven. Limitations must, the school board argues, be placed on the reviewing authority of the Tenure Commission to avoid unwarranted interference with local control of schools. Acceptance of the Tenure Commission’s view of its de novo reviewing authority would reduce disciplinary proceedings before a school board to an idle ceremony.¹⁵ The determination of the appropriate measure of discipline requires the exercise of discretion, and the decision of the school board must be given deference by the Tenure Commission.

The school board urges that where the punishment does not fit the crime, the Tenure Commission is empowered to reverse the decision of the school board and order reinstatement if reasonable and just cause has not been established or if the discipline was arbitrary, capricious or imposed in bad faith. The Tenure Commission’s decision to reduce Grindstaff’s discharge to a one-semester suspension was not supported under the facts established before the commission or by competent, material, and substantial evidence on the whole record.¹⁶_

B

In Rehberg I,¹⁷ the teacher was removed by the school board. The Tenure Commission reversed. This Court reversed and remanded to the Tenure Commission for further proceedings, following which this Court again considered the matter in Rehberg IT.¹⁸

In Rehberg I, the school board made an argument somewhat similar to the argument advanced by the school board in the instant case. This Court described the issue there presented as follows:

The sole question presented here is whether the State tenure commission, acting as a "Board of Review,” hears cases de novo or only for the purpose of determining whether the original proceedings before the controlling board were proper, without error, and in accordance with the provisions of the tenure act.[¹⁹] [Emphasis added.]

This Court responded that the tenure act provides a "safeguard upon the arbitrary or unreasonable dismissal of teachers and is designed for their protection. It does not, however, otherwise diminish or interfere with the administrative power of the local controlling board, nor require it to indulge in idle ceremonies.”²⁰

At the first Tenure Commission hearing in Rehberg, a copy of the transcript of testimony taken before the school board was offered in evidence. The Tenure Commission refused to receive it and announced that the parties would have a hearing de novo. This Court reversed the Tenure Commission in Rehberg I and remanded to the commission for further proceedings, stating that the commission should "review and consider the record made before the controlling board, but is not precluded from taking such additional testimony as in its discretion may be required.”²¹

On remand from this Court, the Tenure Commission held a "meeting” at which additional testimony was taken. The commission entered an order reversing the order of the school board and restored the teacher to his former position. In Rehberg II, this Court said there was substantial and competent evidence to support the Tenure Commission’s finding that the teacher did not have a fair hearing before the school board. At the second hearing before the Tenure Commission, testimony was offered in support of the teacher. The Tenure Commission "reviewed the testimony offered at the second hearing, as well as the testimony offered before the board of education, and concluded that Clark Rehberg was not discharged for reasonable and just cause.”²² The Court noted that the evidence taken at the second hearing was not presented to, or passed on, by the school board.

The school board in Rehberg II argued, again paralleling the argument advanced by the school board in the instant case, that the Tenure Commission "has only power to act as a board of review to determine whether or not the school board carried out rights granted under the tenure act, and that the act in question does not give the State tenure commission the right to make findings of fact and thereby substitute its opinion for that of the board of education.”²³ This Court rejected the argument, stating that "the commission, after hearing the new testimony together with the testimony presented to the school board, may make an independent ñnding of facts, opinionate upon the same, and enter an order accordingly”²⁴

This Court added that the question on judicial review from the Tenure Commission was whether there was "competent evidence to support the ñndings of fact made by the commission.”²⁵ It concluded that there was, and affirmed the action of the commission in reinstating the teacher.

In reaching its conclusion concerning the authority of the Tenure Commission, this Court relied on the provisions of the tenure act stating that the Tenure Commission shall act as a board of review, and that the conduct of an appeal before the commission shall be the same as provided in article 4, section 4,²⁶ including the power to subpoena witnesses. "We see no purpose in the power of the commission to take further testimony if they cannot consider it upon the issues involved.”²⁷

This Court reserved in Rehberg II the question whether the Tenure Commission had the power to make an independent finding of fact where the commission had only the record made before the school board. That question was resolved in Long v Royal Oak Twp Bd of Ed, 350 Mich 324, 327; 86 NW2d 275 (1957), where the Court responded in the affirmative to the question whether the Tenure Commission may, where evidence is produced before the school board to support its ruling, vary or reverse the finding of the school board without new material evidence being presented to the commission. The Court declared:

—It is ruled again, as in Rehberg II, that the commission "may make an independent finding of facts, opinionate upon the same, and enter an order accordingly.”

—"[A]ll questions of fact” decided by a school board, as well as questions of law, are subject "to review and determination de novo by the commission.”²⁸

—The commission is vested with the "duty and authority to determine, anew and as original questions, all issues of fact and law theretofore decided by the controlling board.”²⁹ (Emphasis added.)

This Court has thus rejected arguments that the authority of the Tenure Commission is limited to a determination of whether the "proceedings” before the school board "were proper,”³⁰ and that the act does not empower the Tenure Commission to make "findings of fact and thereby substitute its opinion for that of the” school board even where additional evidence was taken before the Tenure Commission,³¹ and that the act does not so empower the Tenure Commission to vary the findings of the school board and make findings of fact and "substitute” its opinion for that of the school board where the only record was made before the school board and no additional evidence was taken before the Tenure Commission.³²

In sum, although the act, a safeguard against the "arbitrary or unreasonable”³³ dismissal of a teacher, does not "otherwise diminish or interfere with the administrative power of the local controlling board, nor require it to indulge in idle ceremonies,”³⁴ an appeal to the commission operates to subject "all questions of fact” and law decided by the school board "to review and determination de novo” by the Tenure Commission.³⁵ Upon such review, the Tenure Commission has the "duty,” as well as the authority, to determine "anew and as original questions” all issues of fact and law although those issues were theretofore decided by the school board,³⁶ and to "make an independent finding of facts, opinionate upon the same, and enter an order accordingly.”³⁷ Upon judicial review by this Court,³⁸ the question is whether there was "competent evidence to support the findings of fact made by the commission.”³⁹

IV

The tenure act does not, indeed, in terms provide that the Tenure Commission may take any action other than to decide whether the "dismissal” of a teacher was for "reasonable and just cause.” It is thus possible to argue that where the commission finds that the misconduct charged by the school board against a tenured teacher, while proven, did not constitute reasonable and just cause for discharge, it must reinstate the teacher and that the commission is without power to substitute its judgment for that of the school board by imposing the lesser discipline of suspension for a period of time that in the judgment of the commission is supported by reasonable and just cause.

The argument ignores that the tenure act leaves much to construction, as numerous decisions of this Court attest.⁴⁰ The act does not, in terms, provide protection for, or an appeal to, the commission from a decision of a school board suspending rather than discharging a teacher. Read literally, there would be no appeal from a school board decision suspending a teacher for a day, a week, a semester, or a year. Nonetheless, the act has been construed, as a matter of practice,⁴¹ to safeguard a tenured teacher against suspension except for reasonable and just cause and to provide for review of a suspension by the Tenure Commission. The act thus has been construed, although it does not literally provide therefor, to mean, in effect, that the commission shall determine whether there was reasonable and just cause for the imposition of the "discipline” imposed by the school board, whether the discipline imposed was suspension or discharge.

The commission, accordingly, is empowered to determine "anew and as an original question” whether the discipline, suspension or discharge, that was imposed was for reasonable and just cause. That construction clearly is required, although the act does not literally so provide in respect to the imposition of a discipline other than discharge.

Similarly, although the act does not literally provide that the Tenure Commission, empowered —by judicial construction—to determine "anew and as original questions” all issues of fact and law, although such issues of fact and law were "theretofore decided by the controlling board,” may reduce a discipline imposed by a controlling board, we are of the opinion that it would not be consistent with the purpose of the act to require reinstatement of a teacher with back pay without imposition of any discipline where the commission finds that the misconduct charged by the school board against the teacher was proven, but that the discipline, suspension or discharge, imposed by the school board is excessive and, specifically, in the instant case, there was not reasonable and just cause for discharge.

Once this Court decided that a decision of a school board to impose the discipline of discharge was subject to redetermination by the Tenure Commission, empowered to determine "anew and as original questions, all issues of fact and law theretofore decided by the” school board, and that the redetermination was to be in respect to "all issues of fact and law,” and that its "duty” on such redetermination required it to "make an independent finding of facts, opinionate upon the same, and enter an order accordingly,” it was in effect decided that the Tenure Commission was empowered to "substitute” its judgment for that of the school board regarding the discipline⁴² to be imposed as an issue of law and fact.⁴³

v

. We are also persuaded that there was competent evidence to support the "independent”⁴⁴ finding of fact and law by the Tenure Commission that there was not reasonable and just cause for the imposition of the discipline of discharge by the school board in light of Grindstaff’s lengthy service, his teaching and motivating skills, the history of prior discipline, two suspensions, none of which were for longer than three days, the current charges, both incurred in the same month, the nature of the charges, leaving the classes unattended, and its conclusion that the record established reasonable and just cause for the imposition of a discipline of suspension for one semester, and, apparently, no longer.

Reversed and remanded to the Tenure Commission for implementation of its order.

Cavanagh, Boyle, and Archer, JJ., concurred with Levin, J.

1 MCL 38.101 ef seq.; MSA 15.2001 et seq.

2 Lakeshore Bd of Ed v Grindstaff, 428 Mich 863 (1987).

3 Lakeshore Bd of Ed v Grindstaff (On Remand), unpublished opinion per curiam of the Court of Appeals, decided March 11, 1988 (Docket No. 98748).

4 Lakeshore Bd of Ed v Grindstaff, 431 Mich 904 (1988).

5 Lakeshore Bd of Ed v Grindstaff (On Second Remand), 177 Mich App 225; 441 NW2d 777 (1989).

6 Grindstaff was charged with repeated acts of disobedience and failure to abide by administrative directives, rules, regulations, and policies.

The incidents referred to were leaving the classroom unsupervised and without permission, leaving the school building during unauthorized times, and the use of physical force on students.

The incidents resulted in written reprimands or warnings and two suspensions. One suspension was for arranging to purchase milk at student prices, and one for leaving a classroom unattended and unsupervised without permission.

The Tenure Commission found that the third charge was sustained and that there was a pattern of unacceptable conduct.

7 The Tenure Commission found that insubordination had been shown by a preponderance of the evidence in that Grindstaff wilfully disobeyed administrative directives and policies despite a full understanding of them.

8 The commission said:

While we have held insubordination may constitute just and reasonable cause for discharge, a finding of insubordination does not automatically justify discharge in all cases. In this case, there is no question that appellant has a history of disciplinary actions. However, we are very much aware of his nearly twenty years service to the district, and the evidence presented reflecting that, during that time, appellant demonstrated outstanding skills as an educator. He has gained respect of students and has shown himself to be a true motivator. We also find, however, that appellant has used poor judgment and has been insubordinate. Thus, appellant presents the classic case of a good teacher, but a poor employee.

This Commission recognizes that stern discipline is required to insure future compliance with rules and policies if the board is to exercise its duty to properly operate the district. Further, we find it crucial to protect against poor morale among students and staff which results when a tenured teacher is permitted to engage in misconduct with the misconception that any discipline will always fall short of discharge. Yet, we cannot ignore the lengthy and positive teaching contribution appellant has made. Therefore, while it is clear that a serious penalty is appropriate here, we find discharge is simply too severe for the conduct of this particular teacher. Appellant has been suspended on two other occasions. The longest suspension was for three days. Bearing in mind the concept of progressive discipline, as well as the nature of his March 1983, offenses—the only new misconduct which precipitated the instant case—we find that suspension without pay for a period of one semester is reasonable punishment under the circumstances. Further, such a lengthy suspension serves as an adequate deterrent to others who would consider engaging in such misconduct. We ñnd, therefore, that the record has established reasonable and just cause for suspension without pay through the completion of the first semester of the 1983-84 school year. Therefore, we conclude that the penalty of discharge must be modified accordingly. [Emphasis added.]

9 After the satisfactory completion of the probationary period, a teacher shall be employed continuously by the controlling board under which the probationary period has been completed, and shall not be dismissed or demoted except as specified in this act. [MCL 38.91; MSA 15.1991.]

10 Discharge or demotion of a teacher on continuing tenure may be made only for reasonable and just cause, and only after such charges, notice, hearing, and determination thereof, as are hereinafter provided. [MCL 38.101; MSA 15.2001.]

11 A teacher who has achieved tenure status may appeal any decision of a controlling board under this act within 30 days from the date of such decision, to a state tenure commission. The state tenure commission shall provide for a hearing to be held within 60 days from the date of appeal. Notice and conduct of such hearing shall be the same as provided in article 4, section 4 of this act, and in such other rules and regulations as the tenure commission may adopt. [MCL 38.121; MSA 15.2021.]

The teacher tenure act provides that "[a]ll charges against a teacher shall be made in writing, signed by the person mating the same, and filed” with the controlling board; "The controlling board, if it decides to proceed upon such charges, shall furnish the teacher with a written statement of the charges . . . and shall, at the option of the teacher, provide for a hearing” within thirty to forty-five days after the filing of such charges. MCL 38.102; MSA 15.2002.

Article 4, § 4 of the act provides that the hearing shall be public or private, at the option of the teacher; "[n]o action shall be taken resulting in the demotion or dismissal of a teacher except by a majority vote of the members of the controlling board” (MCL 38.104[b]; MSA 15.2004[b]); the teacher and the person filing charges may be represented by counsel; testimony shall be on oath or affirmation and a stenographic record shall be made; "[a]ny hearing held for the dismissal or demotion of a teacher” must be concluded by decision in writing rendered within fifteen days with a copy furnished to the teacher within five days after decision (MCL 38.104[f]; MSA 15.2004[f]); the controlling board shall have the power to subpoena witnesses and documentary evidence either on its own initiative or at the request of the teacher.

12 The tenure commission is hereby vested with such powers as are necessary to carry out and enforce the provisions of this act. [MCL 38.137; MSA 15.2037.]

13 The tenure commission shall act as a board of review for all cases appealed from the decision of a controlling board. [MCL 38.139(1); MSA 15.2039(1).]

14 Teacher unions filed briefs amici curiae in support of Grindstaff asserting that the Tenure Commission has the responsibility to evaluate and determine the penalty for teacher misconduct, and that the Court of Appeals decision was incorrect.

The Attorney General filed a brief in behalf of the Tenure Commission contending that the Tenure Commission may reduce discipline from discharge to suspension where it finds that misconduct, albeit proven, did not constitute reasonable and just cause for discharge.

15 See n 20 and the accompanying text.

16 An amicus brief was filed by an association of school boards stating that there is no authority in the teacher tenure act permitting the Tenure Commission to modify a discipline imposed by a school board where the Tenure Commission adopts or affirms the school board’s determination that the teacher had engaged in misconduct.

17 Rehberg v Melvindale Bd of Ed, 330 Mich 541; 48 NW2d 142 (1951).

18 Rehberg v Melvindale Bd of Ed, 345 Mich 731; 77 NW2d 131 (1956).

19 Rehberg I, p 542.

20 Id., p 548.

21 id.

22 Rehberg II, supra, p 737.

23 Rehberg H, supra, p 739. (Emphasis added.)

24 Id., p 740. (Emphasis added.)

25 Id. (Emphasis added.)

26 See n 11.

27 Rehberg II, supra, p 740.

28 See Plymouth-Canton Community Schools v State Tenure Comm, 435 Mich 76; 457 NW2d 656 (1990).

29 We find no occasion for review of the evidence appellant discusses in its brief. It is ruled again, as in the second Rehberg Case, that the commission "may make an independent finding of facts, opinionate upon the same, and enter an order accordingly.” ... To this we will add that an appeal to the commission under said article 6 operates to subject all questions of fact decided by the controlling board, as well as requisite questions of law, to review and determination de novo by the commission.

Our stated view of the commission’s administrative function stems particularly from language appearing in section 1 of said article 6, by which the commission is directed to conduct its hearing on appeal "the same as provided in article 4, section 4 of this act.” Said section 1, considered with section 4 of article 4, discloses clear legislative intent that the commission—following appeal by a teacher under said article 6—be vested with duty and authority to determine, anew and as original questions, all issues of fact and law theretofore decided by the controlling board. [Long, supra, pp 326-327. Emphasis added.]

30 Rehberg I, supra, p 542.

31 Rehberg II, supra, p 739. (Emphasis added.)

32 Long, supra, p 326.

33 Rehberg I, supra, p 548. (Emphasis added.)

34 Id.

35 Long, supra, p 326.

36 Id., p 327.

37 Rehberg II, p 740.

38 And now that the Court of Appeals has been created, upon judicial review by the Court of Appeals as well.

39 Rehberg II, supra, p 740. We note that Rehberg II was decided before the adoption of Const 1963, art 6, § 28, providing for a determination on judicial review of whether an administrative ruling was "supported by competent, material and substantial evidence on the whole record.” See Beebee v Haslett Public Schools (After Remand), 406 Mich 224, 227; 278 NW2d 37 (1979).

40 See Rehberg I, supra, Rehberg II, supra, Long, supra, Munro v Elk Rapids Schools (On Rehearing), 385 Mich 618; 189 NW2d 224 (1971), Weckerly v Mona Shores Bd of Ed, 388 Mich 731; 202 NW2d 777 (1972), Shiffer v Gibraltar School Dist Bd of Ed, 393 Mich 190; 224 NW2d 255 (1974), Ajluni v West Bloomfield School Dist Bd of Ed, 397 Mich 462; 245 NW2d 49 (1976), Dryden v Marcellus Community Schools Bd of Ed, 401 Mich 76; 257 NW2d 79 (1977), Lipka v Brown City Community Schools (On Rehearing), 403 Mich 554; 271 NW2d 771 (1978), Breuhan v Plymouth-Canton Community Schools, 425 Mich 278; 389 NW2d 85 (1986), and Belanger v Warren Consolidated School Dist Bd of Ed, 432 Mich 575; 443 NW2d 372 (1989).

41 A suspension is deemed for purposes of Tenure Commission review to be a "demotion.”

42 The school board is not empowered to appeal its own decision to the Tenure Commission. Only the teacher may appeal the school board’s decision to the Tenure Commission. We therefore see no basis on which the Tenure Commission might impose a greater discipline than that imposed by the school board.

43 Alternatively, the commission might remand to the school board for imposition of a lesser discipline for which, in the school board’s judgment, there is reasonable and just cause, without specification or expression of opinion by the Tenure Commission of what lesser discipline would, on further appeal, be deemed to have been supported by reasonable and just cause. Such an alternative course might, however, unduly prolong the review process with successive redeterminations by the Tenure Commission and remand to the school board to try once again.

44 Rehberg II, supra, p 740.