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10/18/93 BOARD EDUCATION ANN ARBOR PUBLIC SCHOOLS

October 18, 1993

BOARD OF EDUCATION OF THE ANN ARBOR PUBLIC SCHOOLS, PETITIONER-APPELLEE,
v.
MORRIS ABRAHAMS, RESPONDENT-APPELLANT, AND MICHIGAN FEDERATION OF TEACHERS, AMICUS CURIAE.



Before: Holbrook, Jr., P.j., and Taylor and D.a. Roberson,* JJ.

The opinion of the court was delivered by: Roberson

D.A. ROBERSON, J.

Respondent, Morris Abrahams, appeals as of right from the trial court's order reversing the order of the State Tenure Commission. The commission voted two to two concerning the issue whether the petitioner, the Board of Education of the Ann Arbor Public Schools, was justified in discharging respondent for improper conduct. One member of the commission abstained. The commission subsequently ruled that the legal effect of the tie vote was that the board had failed to sustain its burden of proof and ordered that respondent be reinstated. The trial court, however, agreed with the two members who found that the discharge was justified and reversed the commission's ruling. We reverse the decision of the trial court.

Respondent was a tenured teacher and girls' basketball coach at a high school in Ann Arbor. On or about September 24, 1980, the school board charged respondent with unprofessional conduct with respect to six female students. Hearings were held before the board on November 6, 13, and 17 and December 8 of 1980, at which five of the six students testified. Respondent presented witnesses who contradicted the students' testimony, but he did not testify at the hearings. On December 17, 1980, the board issued its decision, unanimously finding reasonable and just cause to discharge respondent.

On January 13, 1981, respondent appealed the board's decision to the State Tenure Commission and requested a hearing before the commissioners. On October 22, 1981, the board filed a motion to prevent respondent from testifying or subpoenaing the female students. On July 30, 1982, the commission denied the motion. The board appealed to the circuit court, which found that the appeal was premature because it did not come within the exception to the prohibition of interlocutory appeals from administrative agencies. On May 2, 1984, this Court remanded the case for a determination of the merits of the issue. On August 7, 1985, the circuit court affirmed the commission's ruling. The board did not appeal this decision.

The commission held hearings from May 2, 1986, to April 15, 1987. Four of the five student witnesses testified before the commission. Respondent's deposition was taken at the state prison in Jackson, where he was serving a sentence for an unrelated charge that arose in 1984. *fn1 Respondent was also allowed to testify at the hearing. On August 22, 1988, the commission issued two separate decisions. Two commissioners, Leonard Porterfield and Jon Schuster, ruled that respondent's discharge was not for reasonable and just cause, finding that the testimony of the five student witnesses lacked credibility. Two commissioners, Wilbur Hass and Patricia Montgomery, found the testimony of the five students more credible than the testimony of respondent and ruled that the board had reasonable and just cause to discharge respondent. The fifth commissioner, Anne Patton, abstained from voting because of a conflict. *fn2

On October 19, 1988, respondent filed a motion for clarification of the legal effect of the tie vote. On July 7, 1989, the commission issued its decision, concluding that the discharge could not be upheld because there was not a majority vote in favor of the discharge and the board had failed to meet its burden of proof.

On September 5, 1990, the trial court issued its opinion and order, reversing the July 7 order of the commission. The trial court reviewed the commission's Rule 47(1), 1979 AC, R 38.177(1), and determined that because a majority of the commissioners did not vote to reinstate the teacher, the order was ineffective. However, instead of remanding the case to the commission, the trial court stated that it would review the entire record to determine whether there was competent, material, and substantial evidence to support either set of findings. The trial court, without explanation, held that the Porterfield findings were not supported by competent, material, and substantial evidence. The trial court, again without explanation, held that the Hass findings were supported by competent, material, and substantial evidence.

This Court must review first the commission's determination regarding the legal effect of the tie vote. Legal rulings of an agency should be set aside only if they are in violation of the constitution or a statute or are affected by a substantial and material error of law. Amalgamated Transit Union v SEMTA, 437 Mich 441, 450; 473 NW2d 249 (1991). This Court gives great deference to the construction placed on a statute by the agency legislatively chosen to enforce it. Cantu v Grand Rapids Public Schools Bd of Ed, 186 Mich App 488, 491; 464 NW2d 900 (1990). Great deference must also be given to the expertise of the commission where there are gaps in the statutory scheme. Tomiak v Hamtramck School Dist, 426 Mich 678, 690; 397 NW2d 770 (1986).

MCL 38.104(b); MSA 15.2004(b) provided at the time of the hearings in this matter *fn3 that the hearing before the school board was to be conducted in accordance with certain enumerated rules, including:

No action shall be taken resulting in the demotion or dismissal of a teacher except by a majority vote of the members of the controlling board.

This provision was made applicable to hearings before the tenure commission by MCL 38.121; MSA 15.2021, which directed the tenure commission to conduct its hearing on appeal in the same manner as provided in MCL 38.104; MSA 15.2004. See also Long v Royal Oak Twp and Oak Park Bd of Ed, Dist No 1, Fractional, 350 Mich 324, 327; 86 NW2d 275 (1957). Construing these provisions of the teacher tenure act together, it is clear that the commission cannot uphold the discharge of a teacher unless a majority of the members vote to discharge the teacher.

Furthermore, on appeal to the commission, the burden of proof remains with the school district of showing reasonable and just cause for discharging the tenured teacher. Nolte v Port Huron Area School Dist Bd of Ed, 152 Mich App 637, 646-647; 394 NW2d 54 (1986); Comstock Public Schools v Wildfong, 92 Mich App 279, 284; 284 NW2d 527 (1979). The board failed to sustain its burden of proof, because it did not convince a majority of the commission that its discharge of the teacher was justified.

This Court rejects the board's argument that the effect of the tie vote was to affirm the board's decision to discharge respondent, which is the same effect of a tie vote in this Court, MCL 600.313; MSA 27A.313, and in the Supreme Court, MCL 600.230; MSA 27A.230. MCL 38.139; MSA 15.2039 provides that the commission shall act as a board of review for all cases appealed from the decision of a controlling board. However, the commission's procedure and review is not similar to that of this Court or the Supreme Court. The commission has the power and authority to take additional testimony and determine anew as original questions all issues of fact and law decided by the school board. Lakeshore Bd of Ed v Grindstaff (After Second Rem), 436 Mich 339, 353-354; 461 NW2d 651 (1990). Moreover, the commission reviews all questions of fact and law de novo. Id., p 354; Long, supra, p 326; Comstock Public Schools, supra, pp 283-284. Because the commission's review is not similar to that of an appellate court, an analogy to the tie vote effect in the appellate tribunals cannot be drawn.

The trial court, however, ruled that the commission's decision and order violated the provisions of the commission's Rule 47(1), which provides:

A decision or order of the commission shall be effective only if voted upon by a majority of the members of the commission; however, during the course of the hearing, the rulings of the chairperson of the commission are final.

Respondent argues that this rule must be construed as a rule of quorum, whereby only a majority of members must vote in order to have a valid decision. The board argues that the rule requires any decision made by the commission for or against the teacher must have a majority vote of its members. We reject respondent's argument that this rule is a quorum requirement. However, the commission ordered reinstatement by its subsequent July 7, 1989, order, which determined that the effect of the tie vote was that the board failed to sustain its burden of proof and reinstated respondent. This decision was voted upon by a majority of the members of the commission and therefore is effective under Rule 47(1).

The board further asserts that the commission's findings are not supported by the evidence. Because the commission ordered reinstatement of respondent, this Court will review the Porterfield decision, the findings of which support respondent's reinstatement, and the entire record. Although the board argues that the Court should review both decisions and find in favor of the Hass decision, and thereby reject the Porterfield decision, it is not this Court's function to cast the deciding vote.

The power of this Court in reviewing a decision by the commission is limited. Hagerty v State Tenure Comm, 179 Mich App 109, 117; 445 NW2d 178 (1989); Tomczik v State Tenure Comm, 175 Mich App 495, 499; 438 NW2d 642 (1989). This Court must determine from the whole record whether there was competent, material, and substantial evidence received by the school board or the tenure commission, or both, to support the commission's finding that there was not reasonable and just cause to reverse the teacher's dismissal. Id.; Const 1963, art 6, ยง 28; MCL 24.306(1)(d); MSA 3.560(206)(1)(d). "Substantial evidence" is evidence that a reasonable mind would accept as sufficient to support a Conclusion. Tomczik, supra, p 499. The commission's findings of fact are conclusive, and an appellate court cannot decide questions of fact that were before the commission. Farrimond v ...


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