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Update on Layoff & Recall and New Developments Under the Teachers Tenure Act

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  1. 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 RSchindler@LuskAlbertson.com Twitter: @LuskAlbertson

  2. 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.

  3. 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’

  4. 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)

  5. 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

  6. 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

  7. 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

  8. 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)

  9. 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

  10. 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.

  11. So, What Has Happened Since? • Litigating the Changes

  12. Layoff and Recall Under the TTA The Commission said WHAT?

  13. 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 • STCreverses the ALJ

  14. 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.”

  15. 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 • STCreverses 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

  16. 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).

  17. So, at least now we know that recall is off the table for the STC, right? • Not so fast, my friends!

  18. 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 • STCreverses the ALJ

  19. 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.”

  20. 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

  21. 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

  22. 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

  23. Layoff and Recall Under the RSC

  24. 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

  25. Garden City Educ Assn v Garden City Public Schools • No standing for private right of action under 1249 • See also – Karabajakian and Valdezv Madison District Public Schools, STCNos 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

  26. One Note About the PERA • Pontiac School District, MERC Case NosC11 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 SD • Union must pay costs – including attorney fees – associated with grievance

  27. Recent Decisions from the STC on Other Topics

  28. 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

  29. 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)

  30. 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.”

  31. 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.”

  32. Discipline or Discharge for Misconduct • Halliburton v River Rouge Public Schools, STC No11-64 (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

  33. 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.

  34. 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

  35. Discharge for Incompetency or Ineffective Teaching • SD takes exception to holding on necessity of IDP • STCreverses 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 IDPmay 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

  36. Questions? Robert T. Schindler RSchindler@LuskAlbertson.com (248) 988-5696 Lusk & Albertson, PLC 40950 Woodward Ave, Suite 350 Bloomfield Hills, MI 48304 Twitter: @LuskAlbertson