DocketNumber: Docket No. 300555
Citation Numbers: 295 Mich. App. 147
Judges: Jansen, Murphy, Owens
Filed Date: 1/5/2012
Status: Precedential
Modified Date: 9/9/2022
Respondent, Pontiac School District (“school district” or “district”), appeals as of right the decision by the Michigan Employment Relations Commission (MERC) finding in favor of the charging party, Pontiac Education Association (PEA), and against the school district, with respect to the PEA’s unfair-labor-practice complaint. We affirm.
In May 2004, the school district chose to privatize services through a third-party contract with respect to services that had been provided by occupational therapists (OTs) and physical therapists (PTs) employed by the district. The PEA, which represented the OTs and PTs, asserted that the school district could not unilaterally act because the issue was subject to bargaining under the parties’ collective-bargaining agreement. Nonetheless, the school district laid off the OTs and PTs and entered into a contract with a private entity to provide OT and PT services. Consequently, the PEA filed an unfair-labor-practice complaint. The dispute in this case concerns the interpretation of MCL 423.215(3)(f), which provides that “Collective bargaining between a public school employer and a bargaining representative of its employees shall not include... [t]he decision of whether or not to contract with a third party for 1 or more noninstructional support services----” (Emphasis added.) Noninstructional support services could therefore be contracted out to third parties without collective bargaining on the subject. The PEA argues that OTs and PTs do not provide noninstruc
An evidentiary hearing was held before a hearing referee. The PEA presented testimony from an OT and PT regarding their responsibilities while employed by
The school district contends that the MERC erred by concluding that OTs and PTs did not constitute “non-instructional support staff” and that the negative employment action should have been the subject of collective bargaining. We disagree. The standards governing
We review MERC decisions pursuant to Const 1963, art 6, § 28, and MCL 423.216(e). MERC’s findings of fact are conclusive if they are supported by competent, material, and substantial evidence on the record considered as a whole. MERC’s legal determinations may not be disturbed unless they violate a constitutional or statutory provision or they are based on a substantial and material error of law. In contrast to ... MERC’s factual findings, its legal rulings are afforded a lesser degree of deference because review of legal questions remains de novo, even in MERC cases. [Citations and quotation marks omitted.]
An agency’s interpretation of a statute is not binding on the courts, and that interpretation cannot conflict with the Legislature’s intent as expressed in the plain language of the statute. In re Complaint of Rovas Against SBC Mich, 482 Mich 90, 103; 754 NW2d 259 (2008). The reviewing court, however, must give “ ‘respectful consideration’ ” to the agency’s construction of the statute and provide “ ‘cogent reasons’ ” for overruling the agency’s interpretation. Id.
An issue involving statutory interpretation presents a question of law reviewed de novo. Klooster v City of Charlevoix, 488 Mich 289, 295-296; 795 NW2d 578 (2011). In Krohn v Home-Owners Ins Co, 490 Mich 145, 156-157; 802 NW2d 281 (2011), our Supreme Court, reiterating the well-established principles of statutory construction, recently stated:
The primary goal of statutory interpretation is to ascertain the legislative intent that may reasonably be inferred from the statutory language. The first step in that determination is to review the language of the statute itself.*153 Unless statutorily defined, every word or phrase of a statute should be accorded its plain and ordinary meaning, taking into account the context in which the words are used. We may consult dictionary definitions to give words their common and ordinary meaning. When given their common and ordinary meaning, the words of a statute provide the most reliable evidence of its intent[.] [Citations and quotation marks omitted.]
Here, the disputed statutory language is found in MCL 423.215, which, at the time of the events at issue, provided, in relevant part, as follows:
(3) Collective bargaining between a public school employer and a bargaining representative of its employees shall not include any of the following subjects:
(f) The decision of whether or not to contract with a third party for 1 or more noninstruetional support services; or the procedures for obtaining the contract; or the identity of the third party; or the impact of the contract on individual employees or the bargaining unit.
(4) The matters described in subsection (3) are prohibited subjects of bargaining between a public school employer and a bargaining representative of its employees, and, for the purposes of this act, are within the sole authority of the public school employer to decide.
Therefore, collective bargaining cannot include matters pertaining to third-party contracts relative to noninstructional support services, because such matters would be within the sole authority of the public school employer. Because the statute does not define what constitutes “noninstruetional support services,” the words should be given their plain and ordinary meaning, which may be ascertained through use of a dictionary. Krohn, 490 Mich
Roseanne Bartush was employed by the school district from 1982 to 2004 as an OT. She was a department head from 1994 to 2004, overseeing individuals with teaching certificates. In fact, she oversaw 25 staff members, including paraprofessionals, teachers, OTs, PTs, and speech pathologists. Bartush worked at an elementary school for the last 10 years of her employment with the district. She testified that the beginning of an average day was spent on one or more of the following matters: preparation time (preparing for therapy sessions with students); meetings with teachers; attending Individualized Education Planning (IEP) meetings; answering phone calls from parents; or addressing other related matters. Once school started, Bartush would see students as they arrived for group or
According to Bartush, a student was directed to occupational therapy in different ways. A diagnostic team, that included Bartush, would conduct an initial evaluation to determine if a student was eligible for special education. Also, a student, teacher, parent, or anyone who was concerned about a student’s progress or difficulties could ask her to conduct an evaluation. The end result would be a formal plan to share information and determine if therapy was necessary. At Bartush’s school, the diagnostic team typically consisted of a speech pathologist and an OT. If there was a physical impairment or significant motor-skills delay, a PT would become involved.
Bartush testified that there was also a large population with autism. She played a major role in managing behavior, designing sensory diets, and devising other approaches in order to allow the students to function in the classroom and to allow the staff to manage the students. A fair assessment of Bartush’s responsibilities was that she assisted the student in being able to receive instruction from the classroom teacher. During her career, Bartush did provide classroom instruction when she worked with physically impaired high school students for a year or two. The class was not a “core” subject, but rather addressed daily living skills on such matters as cooking and computer usage. Bartush described her duties as an OT as follows: “To make [students] as independent as possible and to function within the classroom to the best of their ability[.]”
It is abundantly clear from the record that OTs and PTs, while not being certified teachers of core curriculum, instruct certain students with respect to addressing and overcoming problems associated with fine and gross motor skills. They work in conjunction with teachers to impart knowledge and information. We agree with the observations made by the MERC in the following passage from its ruling, which is supported by competent, material, and substantial evidence on the record:
The [OTs] and [PTs] are not certified teachers. However, they work closely with certified teachers and other*159 professional staff, as well as with paraprofessionals in evaluating the needs of students and providing the students with activities and tools that would assist them in the educational process. An [OT] and a [PT], who were previously employed by [the school district], testified at length about their job duties. Their testimony identified a wide range of services that they provided to assist schoolchildren in acquiring and developing skills necessary for them to achieve educational goals. As explained in detail in the [hearing referee’s] decision, the therapists would prepare activities for students to assist them in developing certain skills. In addition to working with the students on those activities, the therapists would explain those activities to the classroom teacher and paraprofessionals, so, in the therapists’ absence, those employees could continue to assist the students with the activities that were designed to aid the students in acquiring skills necessary to reach their academic goals. While the therapists did not teach the core curriculum, they provided the students with training and instruction in skills necessary for them to learn those subjects taught as part of the core curriculum.[2 ]
Moreover, like the [hearing referee], we find it particularly relevant that the request for proposals (RFP) prepared by [the school district] in seeking to subcontract the services of the [OTs] and [PTs] stated that the services it sought to obtain from a private contractor were to include: “physical therapy/occupational therapy services” to address disabilities “that interfere with learning in the educational environment.” The therapists whose services were sought under [the school district’s] RFP were to: plan therapy services “for each individualized education program (IEP) as a member of the multidisciplinary*160 educational/assessment team;” to engage in “consultation and education;” and to “administer . .. therapy services within the educational environment.” Accordingly, we conclude that the services [the school board] sought to contract for in the RFf] and the services previously provided by the [OTs] and [PTs] in this case, were services of an instructional nature. Whether they were instructional services, or instructional support services, we need not decide, as they were clearly not “noninstructional support services.” [Omission in original.]
While the school district’s expert witnesses concluded that the OTs and PTs did not provide “instruction,” the duty to interpret and apply the law is allocated to the courts, not the parties’ expert witnesses. Hottmann v Hottmann, 226 Mich App 171, 179-180; 572 NW2d 259 (1997). Moreover, regardless of any conflicting evidence, there was nonetheless competent, material, and substantial evidence supporting the MERC’s decision.
The school district argues that the hearing referee and the MERC misinterpreted the legislative history and failed to apply state and federal regulations governing special education that define “instructional services” and “related services” separately. With respect to the legislative history of the act, legislative history of any type is not to be utilized as a tool of interpretation unless a statute is ambiguous. In re Certified Question from the United States Court of Appeals for the Sixth Circuit, 468 Mich 109, 115 n 5; 659 NW2d 597 (2003). A review of the MERC’s decision and order reveals that it did not rely on the legislative history — an early house bill version of the statute — to reach its conclusion. Instead, the MERC correctly focused on the plain and unambiguous language of the statute. Again, the school district seeks to place limitations on the terms at issue by arguing that instructional means part of the curricu
We also reject the school district’s contention that state and federal regulations regarding special education, which define “instructional services” and “related services,” should be applied. There is no indication whatsoever in MCL 423.215 that the Legislature intended state and federal regulations governing special education to apply to public schools generally for purposes of the statute.
Finally, the school district maintains that the MERC erred in its application of the burden of proof. This argument does not entitle the district to appellate relief. “The applicable burden of proof presents a question of law that is reviewed de novo on appeal.” FACE Trading, Inc v Dep’t of Consumer & Indus Servs, 270 Mich App 653, 661; 717 NW2d 377 (2006). “The charging party,
Affirmed. The PEA, having fully prevailed on appeal, is awarded taxable costs pursuant to MCR 7.219.
The school district has filed a supplemental authority, asserting that a recent amendment of MCL 423.215, pursuant to 2011 PA 103, requires us to reject the MERC’s remedy. The newly enacted MCL 423.215(3)(k) precludes collective bargaining with respect to decisions concerning a “reduction in force” or “any other personnel determination resulting in the elimination of a position....” MCL 423.215(3)(f), with which we are concerned, was not amended under 2011 PA 103. Given that subsection (3)(f) was not amended and that, perhaps arguably, this case does not truly involve a reduction in force or the elimination of positions hut rather the replacement or substitution of school OTs and PTs with privately contracted OTs and PTs at a lesser cost, we question whether MCL 423.215(3)(k) has the effect argued by the school district. Regardless, we need not resolve the proper construction of the amendatory language, because we hold that MCL 423.215(3)(k) operates prospectively only. Whether an amendment to a statute applies retroactively presents a question of law subject to review de novo. Brewer v A D Transp Express, Inc, 486 Mich 50, 53; 782 NW2d 475 (2010). To determine whether a statute should be applied retroactively or prospectively only, the primary rule is that the legislative intent must govern. Id. at 55-56. This principle prevails over all other rules of construction and operation. Id. at 56. An amendment to a statute is presumed to operate prospectively only. Davis v State Employees’ Retirement Bd, 272 Mich App 151, 155; 725 NW2d 56 (2006). “The Legislature’s expression of an intent to have a statute apply retroactively must be clear, direct, and unequivocal as appears from the context of the statute itself.” Id. at 155-156. Retroactive application of a statute may not occur if the amendment “abrogates or impairs vested rights, creates new obligations, or attaches new disabilities concerning transactions or considerations occurring in the past.” Id. at 158. In the present case, the effective date of 2011 PA 103 is stated as July 19,2011, and there is no clear, direct, and unequivocal evidence of the Legislature’s intent to abrogate the rights and remedies for this unfair-labor charge filed in 2004. Accordingly, we will address the merits of the school district’s claim of appeal.
The school district complains that OTs and PTs simply provide services that are physical and not instructional in nature. While there is clearly a physical component to their work, the district’s argument fails to appreciate the instructional elements of the work performed hy OTs and PTs in the school setting. And again, the school district’s argument is based more on a restrictive reading of the statute that confines instruction to instruction on core curriculum, but there is no basis in the statutory language to place such a restriction.
The argument premised on the regulation defining “instructional services” would require us to find that only teachers provide such services. The Legislature could easily have used limiting language if it intended for all school personnel but teachers to fall into the collective-bargaining exception in MCL 423.215(3X0, but the Legislature did not do so.