LINDA GIFFELS V MILLINGTON COMMUNITY SCHOOLS BD OF EDUCATION
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STATE OF MICHIGAN
COURT OF APPEALS
LINDA GIFFELS,
UNPUBLISHED
February 2, 2010
Petitioner-Appellee,
v
No. 287175
State Tenure Commission
LC No. 07-000030
MILLINGTON COMMUNITY SCHOOLS
BOARD OF EDUCATION,
Respondent-Appellant.
Before: Servitto, P.J., and Fort Hood and Stephens, JJ.
PER CURIAM.
Respondent appeals by leave granted the ruling by the State Tenure Commission (STC)
ordering petitioner suspended without pay until the end of the 2008-2009 school year. The STC
order reversed the preliminary holding by the hearing officer authorizing respondent’s request to
terminate petitioner’s employment. We affirm.
Petitioner was a teacher for Millington Community Schools for 30 years. She was
subject to discipline after attending a driver’s education conference in Mt. Pleasant from
Wednesday, April 25 through Friday, April 27, 2007. Petitioner submitted copies of receipts
from Old Country Buffet seeking reimbursement for breakfast on Thursday and lunch on Friday
of the conference. The copied receipts were different from the original receipts because they did
not contain the date and time of the meal, and omitted the location of the restaurant listed on the
original receipts. At an investigative interview regarding the receipts, petitioner maintained that
she had eaten the Thursday breakfast at Old Country Buffet. However, it was determined that
the receipt submitted for breakfast reimbursement was from a meal on Saturday, April 28 at an
Old Country Buffet near petitioner’s home, and that there was no Old Country Buffet restaurant
in Mt. Pleasant.
Respondent argues on appeal that offenses involving theft and deceit are just cause and
reasonably require dismissal from employment and that the STC had no authority to impose a
different penalty. Respondent also argues that the STC decision was contrary to law and was not
supported by substantial evidence. In light of the applicable standard of review, we affirm the
decision by the STC. We review an appeal from the STC to determine whether the record
contained competent, material, and substantial evidence to support the commission’s findings.
Widdoes v Detroit Pub Schools, 242 Mich App 403, 408; 619 NW2d 12 (2000). “Substantial
evidence is that which a reasonable mind would accept as adequate to support a decision; it is
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more than a scintilla but may be substantially less than a preponderance.” Id. at 408-409
(Further citation omitted.) A final decision of the STC must be upheld if it is not contrary to law,
is not arbitrary, capricious, or a clear abuse of discretion, and is supported by competent,
material, and substantial evidence on the whole record. See Ranta v Eaton Rapids Pub Schools
Bd of Ed, 271 Mich App 261, 265; 721 NW2d 806 (2006). Questions of law are reviewed de
novo. Moore v Secura Ins, 482 Mich 507, 516; 759 NW2d 833 (2008).
The clear legislative intent in passing the Teacher Tenure Act (TTA), MCL 38.71 et seq.,
was to protect teachers from the arbitrary and capricious employment practices of their
employers. VanGessel v Lakewood Pub Schools, 220 Mich App 37, 41; 558 NW2d 248 (1996).
The STC is “vested with such powers as are necessary to carry out and enforce the provisions of
[the TTA].” MCL 38.137; see also Ranta, supra at 266. Tenured teachers may be discharged or
demoted only for reasonable and just cause. MCL 38.101; see also Satterfield v Grand Rapids
Pub Schools Bd of Ed, 219 Mich App 435, 437; 556 NW2d 888 (1996). The burden of
establishing reasonable and just cause rests with the school district. Satterfield, supra.
Reasonable and just cause can only be shown by significant evidence proving that the teacher is
unfit to teach, and the inquiry must include the effect of the teacher’s activity on the students.
Benton Harbor Area Schools Bd of Ed v Wolff, 139 Mich App 148, 154; 361 NW2d 750 (1984).
The STC shall act as a board of review for all cases appealed from the decision of a
controlling board. MCL 38.139(1). The Legislature has vested the STC with decision-making
authority regarding the appropriate penalty for teacher misconduct. Lewis v Bridgman Pub
Schools (On Remand), 279 Mich App 488, 496-497; 760 NW2d 242 (2008). In an appeal to the
STC, the STC reviews de novo all questions of fact and law decided by the school board.
Lakeshore Pub Schools Bd of Ed v Grindstaff (After Second Remand), 436 Mich 339, 354-355;
461 NW2d 651 (1990); accord Lewis, supra at 490. The STC has the power and authority to
take additional testimony and determine as original questions all issues of fact and law decided
by a school board. Birmingham School Dist v Buck, 204 Mich App 286, 293; 514 NW2d 528
(1994). When exceptions are filed, the STC does not take additional evidence but limits its
review to the issues raised in the exceptions and has authority to “adopt, modify, or reverse the
preliminary decision and order” of the hearing officer. MCL 38.104(5)(m); see Lewis, supra at
496.
Therefore, the STC has the authority to reduce the level of discipline for a tenured teacher
from discharge imposed by a school board to suspension where it determines that the charged
misconduct, while proven, was not reasonable and just cause for discharge. Respondent argues
that, because petitioner was found to commit a theft against the school district, that reasonable
and just cause to terminate her did exist and the STC was without authority to reinstate her
employment. See MCL 38.101; Satterfield, supra at 437 (tenured teachers may be discharged or
demoted for reasonable and just cause).
Here, the hearing officer concluded that respondent “established reasonable and just
cause to discipline [petitioner] and that the appropriate measure of discipline is discharge.”
Petitioner filed exceptions to the hearing officer’s decision. After considering the exceptions to
the hearing officer’s decision, the STC found merit in one of petitioner’s ten exceptions—the
level of discipline determined by the hearing officer despite affirming the hearing officer’s
finding that petitioner was intentionally deceptive. The STC confirmed the seriousness of the
charges, particularly in light of a teacher’s position of influence on students, and endorsed
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“significant discipline.” However, the STC also noted that petitioner had not been disciplined
for similar conduct in her 30 years as a teacher, and discussed the positive contributions of
petitioner’s work as a “successful teacher” and her involvement in extracurricular activities for
students. The STC conducted a balancing of all relevant factors to conclude that the penalty of
discharge was excessive and a one-year suspension without pay was appropriate under the
circumstances.
Respondent urges that, as a matter of law, this finding that petitioner engaged in theft or
dishonesty was just cause for her discharge. Respondent cites seven STC cases where
employees of school districts were apparently discharged for dishonesty or theft and five
arbitration cases where employees were apparently discharged for even small instances of theft,
including discharge for taking a candy bar from a vending machine. Respondent states that a
presumption exists that an administrative agency will follow precedent from prior decisions
unless the departure is explained. Atchison, Topeka & Santa Fe Railway Co v Wichita Bd of
Trade, 412 US 800, 807; 93 S Ct 2367; 37 L Ed 2d 350 (1973).
In Satterfield, supra at 436-437, this Court upheld a teacher’s dismissal from his school
employment after having been convicted of embezzling from his other employment in retail.
The STC found that the teacher’s conviction of a crime involving moral turpitude raised a
presumption that his conduct made him unfit to teach, and that retention of appellant after his
embezzlement conviction would have an adverse effect on the school, parents, and children. Id.
at 436-437, 439-440. This Court found that the STC’s findings were supported by competent,
substantial, and material evidence on the whole record. Id. at 439-440.
In Lewis, supra at 489-490, 498, this Court upheld the STC’s decision to reduce the
discharge of a teacher, as recommended by the hearing officer, to a one-year suspension without
pay. In Lewis the teacher had given a student an air gun, a replica of a semi-automatic weapon,
as a gift on school grounds, and had prior lapses in judgment as well. Id. at 490, 493-494. The
STC disagreed with the hearing officer’s conclusions only with regard to the appropriate level of
discipline. Id. at 497. The STC cited several reasons for its decision to modify the hearing
officer’s recommendation and impose a less severe penalty, such as application of progressive
discipline principles, and the teacher’s record of significant contributions as a teacher and
involvement in the community. Id. at 495-498.
In Lakeshore, supra at 342-343, our Supreme Court reversed this Court and affirmed the
STC’s reduction of a teacher’s discharge to a suspension where the STC found there was not a
reasonable and just cause for termination.
The teacher had four charges including
insubordination, leaving class unattended, and two previous suspensions. Id. at 344. The STC
discussed the importance of stern discipline of insubordination in attempt to maintain the proper
environment for students and staff. Id. at 346. The teacher’s penalty was reduced due to the
STC’s consideration of the importance of a progressive discipline policy, and the lengthy and
positive teaching contributions of an outstanding teacher. Id. Notably, the STC said that
insubordination may constitute a just and reasonable cause for discharge, but did not
automatically justify discharge in all cases. Id. at 345-346. The STC concluded that discharge
was simply too severe for the conduct of the particular teacher. Id. at 346.
The case law indicates that, despite inappropriate conduct, the STC has the power to
examine all of the facts and circumstances surrounding the discipline of the teacher against the
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teacher’s past history and school contributions to impose a graduated level of punishment.
Indeed, the STC has the power and authority to determine all issues of fact and law decided by a
school board as original questions. Birmingham School Dist, supra at 292-293; Lakeshore,
supra at 354-355. No law has been cited on appeal that requires a teacher to be terminated for
offenses involving dishonesty. If dishonesty offenses were per se cause for discharge, the STC’s
review would be reduced to “indulge in idle ceremonies.” Lakeshore, supra at 354.
Additionally, an administrative agency is generally free to reexamine its prior decisions and
depart from its precedents if it explains the departure. Melvindale-Northern Allen Park
Federation of Teachers, Local 1051 v Melvindale-Northern Allen Park Pub Schools, 216 Mich
App 31, 37-38; 549 NW2d 6 (1996).
In the present case, the STC found that dismissal was an excessive penalty for
petitioner’s particular offense. In other words, petitioner’s deceptions, although serious, were
not just and reasonable cause for discharge. Even though the Lakeshore and Lewis cases
discussed above did not involve instances of theft or dishonesty, they involved serious
infractions that affected the staff and students of the schools and discharge was not determined to
be the appropriate remedy. The Legislature has vested the STC with decision-making authority
regarding the appropriate penalty for teacher misconduct. Lewis, supra at 496-497. De novo
review means and requires that the STC determine any penalty to be imposed, and the STC was
empowered to substitute its judgment for that of the school board and hearing officer regarding
the discipline to be imposed as an issue of law and fact. Lakeshore, supra at 348, 357.
Alternatively, respondent argues that the STC’s decision was not supported by law or by
substantial evidence. A final decision of the STC must be upheld if it is not contrary to law, is
not arbitrary, capricious, or a clear abuse of discretion, and is supported by competent, material,
and substantial evidence on the whole record. Ranta, supra at 265. Review of the STC’s
decision involves a degree of qualitative and quantitative evaluation of all the evidence that was
considered, rather than just those portions of the record supporting the STC’s decision. Lewis,
supra at 496. Even though the decisions of the STC are not binding on this Court, we may
choose to give them some deference. Parker, supra at 570. The reviewing court may not
substitute its judgment for that of the agency in the absence of fraud or jurisdictional defect.
Ranta, supra at 265.
As discussed above, the STC was authorized to determine the appropriate level of
discipline as an issue of law and fact. Lakeshore, supra at 348, 357; Lewis, supra at 496-497.
Further, if an agency decision is an explained departure from precedent, appellate review is
limited to whether the rationale is so unreasonable as to be arbitrary and capricious. MelvindaleNorthern Allen Park Federation of Teachers, Local 1051, supra at 37-38.
Respondent argues that the STC’s reduction in discipline was unsupported by competent,
material, and substantial evidence on the whole record. The STC’s decision affirmed that
petitioner’s misconduct was serious and could have resulted in discharge. The STC agreed with
the hearing officer that petitioner was dishonest in submitting the receipts, during the
investigative interview, and during the administrative hearing, and had not taken responsibility
for her conduct. The STC only disagreed with the extent of the penalty for petitioner’s
infractions. It was concluded that the misconduct was an aberration in petitioner’s long career
and that there was no evidence that it is likely to recur. The STC cited evidence of petitioner’s
many extracurricular activities and mentioned evaluations of petitioner describing many positive
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contributions to students, helping at-risk students, and petitioner’s caring relationships with
students and cooperative spirit in solving problems at school. Petitioner’s most recent evaluation
provided that she was an excellent teacher and an asset to the school. Her school principal stated
in the evaluation that petitioner was “involved in many aspects of the school,” “always available
to help students,” and “displaying a hard working attitude” and a “high level of enthusiasm for
her professional responsibilities.”
In light of the excellent performance reviews and the fact that there was no evidence of
prior misconduct in petitioner’s thirty year career, the STC reduced the penalty ordered by the
hearing officer, concluding that discharge was excessive, and a suspension without pay until the
end of the 2008-2009 school year was the appropriate level of discipline.
Respondent characterized the STC’s decision as disturbing because it makes it impossible
to terminate a teacher for theft, exposes the school to education given by someone who has been
found a thief, and ignores that petitioner continues to seek to take money from the district,
presumably in the form of petitioner’s civil lawsuit against the district.1 This argument was
presented to the STC and rejected when the commission balanced the gravity of petitioner’s
misconduct against her performance over the past thirty years.
The record demonstrates that the STC considered and validated the interests presented by
respondent, and also considered evidence of petitioner’s value to the students beyond the
deception that she perpetrated. The STC imposed a significant penalty of suspension without
pay until after the 2008-2009 school year. This Court gives deference to the expertise of an
administrative agency, and will not “invade the province of exclusive administrative fact-finding
by displacing an agency’s choice between two reasonably differing views.” Widdoes, supra at
286. The decision was not arbitrary, capricious, or a clear abuse of discretion, and is supported
by competent, material, and substantial evidence. See Ranta, supra at 265.
Affirmed.
/s/ Deborah A. Servitto
/s/ Karen M. Fort Hood
/s/ Cynthia D. Stephens
1
On appeal in Docket No. 286785.
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