UPDATE ON LAYOFF & RECALL AND NEW DEVELOPMENTS UNDER THE TEACHERS TENURE ACT

Michigan Association of School Administrators

Mid-Winter Conference

January 22, 2014

Amway Grand, Grand Rapids, Michigan

Download this presentation at:

www.LuskAlbertson.com/MASA2014.com

Robert T. SchindlerLusk & Albertson, PLCRSchindler@LuskAlbertson.comTwitter: @LuskAlbertson

CAUTION

These materials provide information of a general nature regarding judicial, legislative or other developments. None of the information contained herein is intended to serve and should not be regarded as legal advice or opinion relative to specific matters, facts, situations or issues. Additional facts and information, as well as future developments, may impact the subjects addressed.

LAYOFF, RECALL AND THE TEACHERS’ TENURE ACT

You better start swimmin’Or you’ll sink like a stoneFor the times, they are a-changin’

LAYOFF AND RECALL

Changed dramatically by 2011 Public Acts 100-103

Those acts amended:Revised School Code (RSC)Teachers’ Tenure Act (TTA)Public Employment Relations Act (PERA)

LAYOFF AND RECALL AND THE RSC

PA 102 added section 1248 and significantly amended section 1249

1248 defines how public schools must determined “personnel decisions”

1249 defines the evaluation system that public schools must use for their teachers and administrators

SECTION 1248 OF THE RSC

Relates to “personnel decisions” – which specifically include layoffs, recalls, or hiring after a recall

Personnel decisions must be based on the following factors:Individual performance (majority factor)Significant relevant accomplishments

and contributionsRelevant special training

SECTION 1248 OF THE RSC

Requires that the focus of personnel decisions be retaining effective teachers

Length of service or tenure status may not be the primary or determining factor – but may be used in the case of a tiebreaker

Teacher rated as ineffective under 1249 system may not be given preference over any teacher with higher rating

SECTION 1248 OF THE RSC

Circuit Court Action:“If a teacher brings an action against a

school district or intermediate school district based on this section, the teacher's sole and exclusive remedy shall be an order of reinstatement commencing 30 days after a decision by a court of competent jurisdiction. The remedy in an action brought by a teacher based on this section shall not include lost wages, lost benefits, or any other economic damages.” MCL 380.1248(3)

LAYOFF AND RECALL UNDER THE TEACHERS TENURE ACT

Public Acts 100 and 101 made three major changes to the TTA on layoff and recall: The definition of “demote” was revised to

state that it does not include “a reduction in personnel”

Section 2a was added to article II and makes clear that probationary teachers rated effective or HE are not subject to being displaced based solely on tenure status

Removed MCL 38.105, which granted a 3 year right of recall for tenured teachers

LAYOFF AND RECALL UNDER THE PERA

Public Act 103 made personnel decisions under section 1248 a prohibited subject of bargaining

Decisions about the development, content, standards, procedures, adoption, and implementation of the public school employer's policies regarding personnel decisions . . . as provided under section 1248 of the revised school code . . . any decision made by the public school employer pursuant to those policies, or the impact of those decisions on an individual employee or the bargaining unit.

SO, WHAT HAS HAPPENED SINCE?

Litigating the Changes

LAYOFF AND RECALL UNDER THE TTA

The Commission said WHAT?

BAUMGARTNER V PERRY PUBLIC SCHOOLS

Decided November 29, 2012 2 teachers laid off based on

performance Teachers claim that they were targeted

for layoff and that their evaluations were done with that purpose in mind

District moves for summary disposition based on lack of jurisdiction – granted

STC reverses the ALJ

BAUMGARTNER V PERRY PUBLIC SCHOOLS

Commission held that PA 100-103 did not remove jurisdiction for actions based on layoffs made in bad faith or as a subterfuge to discharge

These actions are based on the right to continuous employment (MCL 38.91), which was unchanged by the amendments “[I]f a teacher shows that the layoff decision was

made in bad faith in order to deny due process rights guaranteed by the Teachers’ Tenure Act, then a claim of subterfuge has been established. In such a case, MCL 380.1248 would not apply, as teacher effectiveness would not be at issue.”

AUBERT V REED CITY AREA PUBLIC SCHS

Decided December 14, 2012 6 teachers filed claims of appeal after layoff

based on performance Teachers claim evaluations were done in bad

faith to target high seniority teachers District moves for summary disposition based

on lack of jurisdiction – granted STC reverses the ALJ STC holds that the Legislature did not disturb

bad faith/subterfuge holdings and did so with purpose – STC uniquely qualified for such cases

AUBERT V REED CITY AREA PUBLIC SCHS

The 2011 amendments of the Teachers’ Tenure Act included the repeal of MCL 38.105, which guaranteed recall rights to tenured teachers whose services were terminated due to a necessary reduction in personnel.  Currently, tenured teachers who are laid off have no explicit statutory right to recall. In addition, if a controlling board lays off a teacher based on a rating of ineffective performance, it is unlikely that the board will rehire that teacher. Thus, the teacher has effectively been discharged. When the teacher claims that the layoff decision was made in bad faith, review of the decision by this Commission is essential to ensure that the effective discharge did not deprive the teacher of rights guaranteed by the Teachers’ Tenure Act. Those rights include the guarantee against discharge for reasons that are arbitrary or capricious. MCL 38.101(1).

SO, AT LEAST NOW WE KNOW THAT RECALL IS OFF THE TABLE FOR THE STC, RIGHT?

Not so fast, my friends!

WRIGHT V FLINT COMMUNITY SCHOOLS

Decided January 18, 2013 “Appellants allege that they were laid off

without justification and that appellee arbitrarily and capriciously evaluated them so as to justify laying them off and failing to recall them, thereby engaging in subterfuge to deprive them of rights guaranteed in the Teachers’ Tenure Act.”

District moved for summary disposition based on lack of jurisdiction – granted

STC reverses the ALJ

WRIGHT V FLINT COMMUNITY SCHOOLS

“In addition, we find that repeal of MCL 38.105 did not abrogate the right of a tenured teacher to claim that a failure to recall violates the statutorily guaranteed right to continuous employment and the right to be reinstated unless there is a legitimate reason to continue the layoff status, such as ineffective teaching performance.  That is, a teacher may file a claim alleging subterfuge in the recall decision of a controlling board, just as such a claim may be filed following a layoff decision. If tenured teachers did not have the right to challenge these decisions, their right to continuous employment upon satisfactory completion of the probationary period and their right not to be discharged or demoted except for a reason that is not arbitrary or capricious would be meaningless.”

COURT OF APPEALS

The school districts in each of the three cases filed applications for leave to COA

COA granted the applications and briefs have been filed

Baumgartner – COA Case No 313945  Aubert – COA Case No 314158 Wright – COA Case No 314696 Oral argument not yet scheduled

GADILLE V ATLANTA COMMUNITY SCHS

Decided July 30, 2013 Teacher laid off prior to July 19, 2011 Two teachers retire mid-year during 2011-12

school year School District places long-term subs in

positions for remainder of the year Teacher recalled for 2012-13 school year Teacher files arbitration (loses) and then files

claim of appeal with STC claiming failure to recall him mid-year violated the TTA

No claim of bad faith/subterfuge

GADILLE V ATLANTA COMMUNITY SCHS

Removal of MCL 38.105 removed absolute right to recall

Instead, decisions of layoff and recall should be based on effectiveness of teaching

“A teacher’s allegation that a layoff or recall decision was based on factors other than effectiveness, or any allegation that such a decision was otherwise based on bad faith or other arbitrary or capricious reasons, is subject to review by this Commission under its continuing authority to hear claims of appeal challenging any decision of a controlling board”

Not appealed to COA

LAYOFF AND RECALL UNDER THE RSC

GARDEN CITY EDUC ASSN V GARDEN CITY PUBLIC SCHOOLS

School district closes a building after 2011-12 SY and conducts a layoff pursuant to 1248 policy

Two teachers and their union file complaint in WCCC alleging violations of sections 1248 and 1249 of the RSC as well as constitutional due process violations

Case removed to USDC for the ED of Mich Defendant files motion for judgment on the

pleadings Court dismisses all claims – September 30,

2013

GARDEN CITY EDUC ASSN V GARDEN CITY PUBLIC SCHOOLS

No standing for private right of action under 1249See also – Karabajakian and Valdez v

Madison District Public Schools, STC Nos 12-8 and 12-9 (ALJ Opinions, June 13, 2012) – No claim for evaluation under TTA

Claim under 1248 moot – no damages No violation of due process

Legislature may define boundaries of tenure No process due for bona fide layoffDid not seek due process for bad

faith/subterfuge

ONE NOTE ABOUT THE PERA

Pontiac School District, MERC Case Nos C11 K-197 and CU12 D-019 (9/27/13)

Union filed ULP and grievance related, at least in part, to teacher placement

SD filed charge in response claiming processing of grievance on a prohibited subject is ULP

ALJ Peltz issued decision and recommended order agreeing with SD and ordered:Withdrawal of grievance or may not comply with

arbitration decision adverse to SDUnion must pay costs – including attorney

fees – associated with grievance

RECENT DECISIONS FROM THE STC ON OTHER TOPICS

DISCIPLINE OR DISCHARGE FOR MISCONDUCT

Cona v Avondale School District, STC No 11-61 (5/31/12)

Charges filed after teacher incarcerated for probation violations

Arbitrary or capricious standard applies based on when charges are filed – teachers not vested into previous standard

Burden remains on school district to meet discharge standard by preponderance of evidence

Defined “arbitrary or capricious” standard

ARBITRARY OR CAPRICIOUS DEFINED A decision is arbitrary and capricious if it is based on whim

or caprice and not on considered, principled reasoning. Notwithstanding that the arbitrary or capricious standard of review is highly deferential, our review is not a mere formality and we are not required merely to rubber stamp the decision of a controlling board. Our responsibility in this case is to review the quality and quantity of the evidence and to determine if the decision to discharge appellant is the result of a deliberate, principled reasoning process supported by evidence. If there is a reasoned explanation for the decision, based on the evidence, the decision is not arbitrary or capricious. If a controlling board overlooked important evidence or erred in appreciating the significance of evidence, its decision may be determined to be arbitrary or capricious. Cona, supra (citations omitted)

CONA – COURT OF APPEALS

Upheld the STC on all grounds “Arbitrary means fixed or arrived at through

an exercise of will or by caprice, without consideration or adjustment with reference to principles, circumstances or significance, and capricious means apt to change suddenly, freakish or whimsical. For instance, a reason is arbitrary and capricious if it is based on prejudice, animus, or improper motives.”

CONA – COURT OF APPEALS

Troublesome language from the COA: Petitioner argues that a lesser form of discipline, such

as that recommended by the hearing referee, would have been more appropriate. However, the Commission may “adopt, modify, or reverse the preliminary decision and order” of the hearing referee, MCL 38.104(5)(m), and it is solely within the province of the Commission to determine the appropriate penalty for teacher misconduct. We defer to the Commission’s determination of the appropriate level of discipline because this is a matter within its area of administrative expertise. Our task “is not to determine whether, in our own judgment, we believe a teacher should or should not be discharged, but only whether there is ‘competent, material and substantial evidence’ on the record to sustain the decision of the Tenure Commission.”

DISCIPLINE OR DISCHARGE FOR MISCONDUCT

Halliburton v River Rouge Public Schools, STC No 11-64 (9/7/12)

Teacher used racial epithets toward students as well as disparaged students and their abilities on multiple occasions

Relied on Cona for which standard to apply and definition of standard

Upheld prior precedent on double jeopardy and process due under the TTA

Rejected argument from SD that “positive contributions to school community” no longer relevant

HALLIBURTON AT THE COA

The teacher filed an application for leave to appeal to COA, which was granted

School District filed cross appeal based on STC’s holding that positive contributions to the community unrelated to the subject conduct are still relevant.

COA Case No 312561Oral argument scheduled for February 5,

2014.

DISCHARGE FOR INCOMPETENCY OR INEFFECTIVE TEACHING

Douglas v Bridgeport-Spaulding Community Schools, STC No 12-18 (4/26/13)

SD sought to discharge teacher based on:Unacceptable classroom management Insubordination and failure to follow

administrative directionUse of excessive physical force

ALJ granted discharge based on the second and third charges, but denied the first

Held SD did not provide IDP based on classroom management and could not therefore discharge based on that factor

DISCHARGE FOR INCOMPETENCY OR INEFFECTIVE TEACHING

SD takes exception to holding on necessity of IDP STC reverses the ALJ on issue of IDP “As the ALJ noted, before a district may discharge a

teacher based on deficiencies in his or her teaching performance, it must give the teacher notice of the specific nature of the deficiencies and a reasonable opportunity to correct them.  An IDP may provide the notice that must precede discharge for incompetence. This Commission has never held, however, that the requisite notice can be provided only in an IDP, and the Teachers’ Tenure Act does not support adoption of such a rule.”

Teacher filed application for leave to appeal to COA, but COA denied in December of 2013

QUESTIONS?

Robert T. SchindlerRSchindler@LuskAlbertson.com(248) 988-5696

Lusk & Albertson, PLC40950 Woodward Ave, Suite 350Bloomfield Hills, MI 48304Twitter: @LuskAlbertson