Transcript Update on Layoff & Recall and New Developments Under the

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. Schindler
Lusk & Albertson, PLC
[email protected]
Twitter: @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 stone
For 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
contributions
 Relevant 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 1249

See 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 layoff
Did not seek due process for bad
faith/subterfuge
ONE NOTE ABOUT THE PERA
 Pontiac
School District, MERC Case Nos C11 K197 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 SD
Union 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 312561

Oral 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 direction
Use 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. Schindler
[email protected]
(248) 988-5696
Lusk & Albertson, PLC
40950 Woodward Ave, Suite 350
Bloomfield Hills, MI 48304
Twitter: @LuskAlbertson