Cadillac Area Public Schools Board of Education v. Ward

134 Mich. App. 811 (1984) 351 N.W.2d 873

CADILLAC AREA PUBLIC SCHOOLS BOARD OF EDUCATION
v.
WARD

Docket No. 72375.

Michigan Court of Appeals.

Decided April 23, 1984.

Thrun, Maatsch & Nordberg, P.C. (by Patrick B. Mooney), for plaintiff.

Foster, Swift, Collins & Coey, P.C. (by Stephen O. Schultz), for defendant.

Before: CYNAR, P.J., and R.B. BURNS and R.L. TAHVONEN,^[*] JJ.

PER CURIAM.

Appellant, Board of Education of the Cadillac Area Public Schools, appeals as of right from a circuit court order affirming a decision of the State Tenure Commission which granted Jan Ward tenured status and ordered her reinstatement with lost salary. Three issues are raised for our consideration.

First, the board claims that the commission and lower court both erred in concluding that the board's action in placing Ward on a third year of probation was ineffective because the board failed to notify the tenure commission of its action as required by MCL 38.82; MSA 15.1982. In this case, the commission held, as it has a number of times in the past, that the board's action placing Ward on a third year of probation was not effective in the absence of notice as required by the statute. In Davis v Harrison Community Schools Bd of Ed, 126 Mich. App. 89, 97-98; 342 NW2d 528 (1983), lv den 418 Mich. 912 (1984), this Court agreed with the commission's interpretation that the third year of probation does not become effective until notice is given to the commission. We decline the board's present invitation to disagree with our colleagues and believe that Davis mandates affirmance on this issue.

Second, the board argues that the tenure commission's use of the anniversary method of computing a first-time probationary teacher's probationary period is erroneous. This argument was likewise considered and rejected in Davis. We think the Davis panel was correct and decline to disturb the decisions below on this basis.

Third, the board argues that Mrs. Ward never completed two years of probationary service because of lapses or gaps in her service as a teacher. Specifically, the 1976-1977 school year began for teachers on September 9, 1976, and Mrs. Ward was not employed until November 1, 1976, by written contract to replace a fifth-grade teacher. She continued in that capacity until school ended on June 17, 1977. The 1977-1978 school year began for teachers on August 29, 1977. From September to November, Mrs. Ward taught for approximately 35 days as a substitute. She was thereafter employed on November 25, 1977, through the last day of school on June 9, 1978, replacing a teacher who was on leave. On April 28, 1978, the board informed Mrs. Ward that she would be placed on probation for a third year. The State Tenure Commission was not notified of the action. Mrs. Ward was employed during the entire 1978-1979 school year, the first semester as a substitute for a teacher on maternity leave and the second semester as a "traveling substitute" throughout the school district. On April 10, 1979, the board notified Mrs. Ward that her employment was terminated, effective at the end of the school year. The record demonstrates that Mrs. Ward taught 146 of the 183 school days during the 1976-1977 school year as a full-time fifth-grade teacher. During the 1977-1978 school year she taught for a period of 129 days. Finally, Mrs. Ward taught the entire 1978-1979 school year of at least 180 days under a probationary teacher's contract and the collective-bargaining agreement. It is clear that Mrs. Ward was employed under contract and taught in a regular classroom position for more than two school years. The issue becomes whether or not the break in Mrs. Ward's service prevented her from completing her probationary term. There is nothing in the statute, MCL 38.81; MSA 15.1981, which requires that the two-year period be continuous or unbroken. Although there may be situations where a break in service could effectively deprive the board of an opportunity to meaningfully evaluate a probationary teacher's performance, service here by Mrs. Ward was sufficiently continuous to provide the board an opportunity to evaluate her performance. Although there may be situations where periods of service are so discontinuous or brief in duration that they could not be "tacked" together to meet the two-year requirement, we are of the view that the tenure commission and the circuit court did not err in this case in finding completion of the requisite two-year probationary term.

The decision of the circuit court is affirmed. No costs, a public question being involved.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.