May 31, 2005, Introduced by Rep. Hopgood and referred to the Committee on Education.
A bill to amend 1976 PA 451, entitled
"The revised school code,"
by amending sections 1535a and 1539b (MCL 380.1535a and 380.1539b),
as amended by 2004 PA 51.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 1535a. (1) Subject to subsection (2), if a person who
holds a teaching certificate that is valid in this state has been
convicted of a crime described in this subsection, within 10
working days after receiving notice of the conviction the
superintendent of public instruction shall notify the person in
writing that his or her teaching certificate may be suspended
because of the conviction and of his or her right to a hearing
before the superintendent of public instruction. The hearing shall
be conducted as a contested case under the administrative
procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328. If the
person does not avail himself or herself of this right to a hearing
within 15 working days after receipt of this written notification,
the teaching certificate of that person shall be suspended. If a
hearing takes place, the superintendent of public instruction shall
complete the proceedings and make a final decision and order within
120 working days after receiving the request for a hearing. Subject
to subsection (2), the superintendent of public instruction may
suspend the person's teaching certificate based upon the issues and
evidence presented at the hearing. This subsection applies to any
of the following crimes:
(a) Any felony.
(b) Any of the following misdemeanors:
(i) Criminal sexual conduct in the fourth degree or an attempt
to commit criminal sexual conduct in the fourth degree.
(ii) Child abuse in the third or fourth degree or an attempt to
commit child abuse in the third or fourth degree.
(iii) A misdemeanor involving cruelty, torture, or indecent
exposure involving a child.
(iv) A misdemeanor violation of section 7410 of the public
health code, 1978 PA 368, MCL 333.7410.
(v) A violation of section 115, 141a, 145a, 335a, or 359 of
the Michigan penal code, 1931 PA 328, MCL 750.115, 750.141a,
750.145a, 750.335a, and 750.359, or a misdemeanor violation of
section 81, 81a, or 145d of the Michigan penal code, 1931 PA 328,
MCL 750.81, 750.81a, and 750.145d.
(vi) A misdemeanor violation of section 701 of the Michigan
liquor control code of 1998, 1998 PA 58, MCL 436.1701.
(2) If a person who holds a teaching certificate that is valid
in this state has been convicted of a crime described in this
subsection, the superintendent of public instruction shall find
that the public health, safety, or welfare requires emergency
action and shall order summary suspension of the person's teaching
certificate under section 92 of the administrative procedures act
of 1969, 1969 PA 306, MCL 24.292, and shall subsequently provide an
opportunity for a hearing as provided under that section. This
subsection does not limit the superintendent of public
instruction's ability to order summary suspension of a person's
teaching certificate for a reason other than described in this
subsection. This subsection applies to conviction of any of the
following crimes:
(a) Criminal sexual conduct in any degree, assault with intent
to commit criminal sexual conduct, or an attempt to commit criminal
sexual conduct in any degree.
(b) Felonious assault on a child, child abuse in the first
degree, or an attempt to commit child abuse in the first degree.
(c) Cruelty, torture, or indecent exposure involving a child.
(d) A violation of section 7401(2)(a)(i), 7403(2)(a)(i), 7410,
or 7416 of the public health code, 1978 PA 368, MCL 333.7401,
333.7403, 333.7410, and 333.7416.
(e) A violation of section 83, 89, 91, 145a, 316, 317, or 529
of the Michigan penal code, 1931 PA 328, MCL 750.83, 750.89,
750.91, 750.145a, 750.316, 750.317, and 750.529, or a felony
violation of section 145d of the Michigan penal code, 1931 PA 328,
MCL 750.145d.
(f) Any other crime listed in subsection (1), if the
superintendent of public instruction determines the public health,
safety, or welfare requires emergency action based on the
circumstances underlying the conviction.
(3) The superintendent of public instruction after a hearing
shall not take action against a person's teaching certificate under
subsection (1) or (2) unless the superintendent of public
instruction finds that the conviction is reasonably and adversely
related to the person's present fitness to serve in an elementary
or secondary school in this state or that the conviction
demonstrates that the person is unfit to teach in an elementary or
secondary school in this state. Further, the superintendent of
public instruction may take action against a person's teaching
certificate under subsection (1) or (2) based on a conviction that
occurred before the effective date of the amendatory act that added
this subsection if the superintendent of public instruction finds
that the conviction is reasonably and adversely related to the
person's present fitness to serve in an elementary or secondary
school in this state or that the conviction demonstrates that the
person is unfit to teach in an elementary or secondary school in
this state.
(4) After the completion of a person's sentence, the person
may request a hearing before the superintendent of public
instruction on reinstatement of his or her teaching certificate.
Based upon the issues and evidence presented at the hearing, the
superintendent of public instruction may reinstate, continue the
suspension of, or permanently revoke the person's teaching
certificate. The superintendent of public instruction shall not
reinstate a person's teaching certificate unless the superintendent
of public instruction finds that the person is currently fit to
serve in an elementary or secondary school in this state and that
reinstatement of the person's teaching certificate will not
adversely affect the health, safety, and welfare of pupils.
(5) All of the following apply to a person described in this
section whose conviction is reversed upon final appeal:
(a) The person's teaching certificate shall be reinstated upon
his or her notification to the superintendent of public instruction
of the reversal.
(b) If the suspension of the person's teaching certificate
under this section was the sole cause of his or her discharge from
employment, the person shall be reinstated, upon his or her
notification to the appropriate local or intermediate school board
of the reversal, with full rights and benefits, to the position he
or she would have had if he or she had been continuously employed.
(6) Not
Except as otherwise provided
in this subsection, not
later than 15 days after the date of the conviction, the
prosecuting attorney in charge of a case in which a person who
holds a teaching certificate was convicted of a crime described in
subsection (1) or (2) and the court that convicted the person shall
notify the superintendent of public instruction, and any public
school, school district, intermediate school district, or nonpublic
school in which the person is employed, of that conviction, of the
name and address of the person convicted, and of the sentence
imposed on the person. A prosecuting attorney in charge of a case
in which a person is convicted of a crime described in subsection
(1) or (2) and a court that convicts a person of a crime described
in subsection (1) or (2) shall inquire whether the person holds a
teaching certificate. This subsection does not apply after the
department has notified the attorney general and the state court
administrative office that the automated program described in
subsection (15) has been developed and implemented, as provided
under subsection (15).
(7) Not later than 5 working days after receiving notification
of a person's conviction from the prosecuting attorney or the court
under subsection (6) or learning of a person's conviction through
the program developed under subsection (15) or through an
authoritative source, the superintendent of public instruction
shall request the court that convicted the person to provide a
certified copy of the judgment of conviction and sentence to the
superintendent of public instruction and shall pay any fees
required by the court. The court shall provide this certified copy
within 5
working 7 days after receiving the request and fees
under this section, even if the court is maintaining the judgment
of conviction and sentence as a nonpublic record.
(8) If the superintendent of a school district or intermediate
school district, the chief administrative officer of a nonpublic
school, the president of the board of a school district or
intermediate school district, or the president of the governing
board
of a nonpublic school is notified
by a prosecuting attorney
or
court or learns through an authoritative source that a
person
who holds a teaching certificate and who is employed by the school
district, intermediate school district, or nonpublic school has
been convicted of a crime described in subsection (1) or (2), the
superintendent, chief administrative officer, or board president
shall notify the superintendent of public instruction of that
conviction within 15 days after learning of the conviction.
(9) For the purposes of this section, a certified copy of the
judgment of conviction and sentence is conclusive evidence of
conviction of a crime described in this section. For the purposes
of this section, conviction of a crime described in this section is
considered to be reasonably and adversely related to the ability of
the person to serve in an elementary or secondary school and is
sufficient grounds for suspension or revocation of the person's
teaching certificate.
(10) For any hearing under subsection (1), if the
superintendent of public instruction does not complete the hearing
procedures and make a final decision and order within 120 working
days after receiving the request for the hearing, as required under
subsection (1), the superintendent of public instruction shall
submit a report detailing the reasons for the delay to the standing
committees and appropriations subcommittees of the senate and house
of representatives that have jurisdiction over education and
education appropriations. The failure of the superintendent of
public instruction to complete the hearing procedures and make a
final decision and order within this 120 working day time limit, or
the failure of any other official or agency to meet a time limit
prescribed in this section, does not affect the validity of an
action taken under this section affecting a person's teaching
certificate.
(11)
Beginning 3 months after the effective date of the
amendatory
act that added this subsection July
1, 2004, the
superintendent of public instruction shall submit to the
legislature a quarterly report of all final actions he or she has
taken under this section affecting a person's teaching certificate
during the preceding quarter. The report shall contain at least all
of the following with respect to each person whose teaching
certificate has been affected:
(a) The person's name, as it appears on the teaching
certificate.
(b) The school district, intermediate school district, public
school academy, or nonpublic school in which the person was
employed at the time of the conviction, if any.
(c) The offense for which the person was convicted and the
date of the offense and date of the conviction.
(d) Whether the action taken by the superintendent of public
instruction was a summary suspension, suspension due to failure to
request a hearing, suspension, revocation, or reinstatement of the
teaching certificate.
(12)
Not later than 6 months after the effective date of the
amendatory
act that added this subsection October
1, 2004, the
superintendent of public instruction shall submit to the
legislature an inventory report with information on all final
actions taken under this section for the time period from March 30,
1988
until the effective date of the amendatory act that added
this
subsection April 1, 2004. The report shall contain at least
all of the information required in the quarterly report under
subsection (11) with respect to each person whose teaching
certificate was affected during that time period. If the
superintendent of public instruction determines that the
information required for the report is not available for any
portion of that time period, the superintendent of public
instruction shall include with the report a detailed explanation of
the information that is not available and the reasons why the
information is not available.
(13) This section does not do any of the following:
(a) Prohibit a person who holds a teaching certificate from
seeking monetary compensation from a school board or intermediate
school board if that right is available under a collective
bargaining agreement or another statute.
(b) Limit the rights and powers granted to a school district
or intermediate school district under a collective bargaining
agreement, this act, or another statute to discipline or discharge
a person who holds a teaching certificate.
(14) The superintendent of public instruction may promulgate,
as necessary, rules to implement this section pursuant to the
administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to
24.328.
(15) The department of information technology shall work with
the department and the department of state police to develop and
implement an automated program that does a monthly comparison of
the department's list of individuals holding a teaching certificate
or state board approval with the conviction information received by
the department of state police, including convictions contained in
a nonpublic record. After this automated program has been developed
and implemented, the department promptly shall notify the attorney
general and the state court administrative office that the
automated program has been developed and implemented.
(16) (15)
As used in this section:
(a) "Conviction" means a judgment entered by a court upon a
plea of guilty, guilty but mentally ill, or nolo contendere or upon
a jury verdict or court finding that a defendant is guilty or
guilty but mentally ill.
(b) "Prosecuting attorney" means the prosecuting attorney for
a county, an assistant prosecuting attorney for a county, the
attorney general, the deputy attorney general, an assistant
attorney general, a special prosecuting attorney, or, in connection
with the prosecution of an ordinance violation, an attorney for the
political subdivision that enacted the ordinance upon which the
violation is based.
Sec. 1539b. (1) Subject to subsection (2), if a person who
holds state board approval has been convicted of a crime described
in this subsection, within 10 working days after receiving notice
of the conviction the superintendent of public instruction shall
notify the person in writing that his or her state board approval
may be suspended because of the conviction and of his or her right
to a hearing before the superintendent of public instruction. The
hearing shall be conducted as a contested case under the
administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to
24.328. If the person does not avail himself or herself of this
right to a hearing within 15 working days after receipt of this
written notification, the person's state board approval shall be
suspended. If a hearing takes place, the superintendent of public
instruction shall complete the proceedings and make a final
decision and order within 120 working days after receiving the
request for a hearing. Subject to subsection (2), the
superintendent of public instruction may suspend the person's state
board approval, based upon the issues and evidence presented at the
hearing. This subsection applies to any of the following crimes:
(a) Any felony.
(b) Any of the following misdemeanors:
(i) Criminal sexual conduct in the fourth degree or an attempt
to commit criminal sexual conduct in the fourth degree.
(ii) Child abuse in the third or fourth degree or an attempt to
commit child abuse in the third or fourth degree.
(iii) A misdemeanor involving cruelty, torture, or indecent
exposure involving a child.
(iv) A misdemeanor violation of section 7410 of the public
health code, 1978 PA 368, MCL 333.7410.
(v) A violation of section 115, 141a, 145a, 335a, or 359 of
the Michigan penal code, 1931 PA 328, MCL 750.115, 750.141a,
750.145a, 750.335a, and 750.359, or a misdemeanor violation of
section 81, 81a, or 145d of the Michigan penal code, 1931 PA 328,
MCL 750.81, 750.81a, and 750.145d.
(vi) A misdemeanor violation of section 701 of the Michigan
liquor control code of 1998, 1998 PA 58, MCL 436.1701.
(2) If a person who holds state board approval has been
convicted of a crime described in this subsection, the
superintendent of public instruction shall find that the public
health, safety, or welfare requires emergency action and shall
order summary suspension of the person's state board approval under
section 92 of the administrative procedures act of 1969, 1969 PA
306, MCL 24.292, and shall subsequently provide an opportunity for
a hearing as required under that section. This subsection does not
limit the superintendent of public instruction's ability to order
summary suspension of a person's state board approval for a reason
other than described in this subsection. This subsection applies to
conviction of any of the following crimes:
(a) Criminal sexual conduct in any degree, assault with intent
to commit criminal sexual conduct, or an attempt to commit criminal
sexual conduct in any degree.
(b) Felonious assault on a child, child abuse in the first
degree, or an attempt to commit child abuse in the first degree.
(c) Cruelty, torture, or indecent exposure involving a child.
(d) A violation of section 7401(2)(a)(i), 7403(2)(a)(i), 7410,
or 7416 of the public health code, 1978 PA 368, MCL 333.7401,
333.7403, 333.7410, and 333.7416.
(e) A violation of section 83, 89, 91, 145a, 316, 317, or 529
of the Michigan penal code, 1931 PA 328, MCL 750.83, 750.89,
750.91, 750.145a, 750.316, 750.317, and 750.529, or a felony
violation of section 145d of the Michigan penal code, 1931 PA 328,
MCL 750.145d.
(f) Any other crime listed in subsection (1), if the
superintendent of public instruction determines the public health,
safety, or welfare requires emergency action based on the
circumstances underlying the conviction.
(3) The superintendent of public instruction after a hearing
shall not take action against a person's state board approval under
subsection (1) or (2) unless the superintendent of public
instruction finds that the conviction is reasonably and adversely
related to the person's present fitness to serve in an elementary
or secondary school in this state or that the conviction
demonstrates that the person is unfit to teach in an elementary or
secondary school in this state. Further, the superintendent of
public instruction may take action against a person's state board
approval under subsection (1) or (2) based on a conviction that
occurred before the effective date of the amendatory act that added
this subsection if the superintendent of public instruction finds
that the conviction is reasonably and adversely related to the
person's present fitness to serve in an elementary or secondary
school in this state.
(4) After the completion of the person's sentence, the person
may request a hearing before the superintendent of public
instruction on reinstatement of his or her state board approval.
Based upon the issues and evidence presented at the hearing, the
superintendent of public instruction may reinstate, continue the
suspension of, or permanently revoke the person's state board
approval. The superintendent of public instruction shall not
reinstate a person's state board approval unless the superintendent
of public instruction finds that the person is currently fit to
serve in an elementary or secondary school in this state and that
reinstatement of the person's state board approval will not
adversely affect the health, safety, and welfare of pupils.
(5) All of the following apply to a person described in this
section whose conviction is reversed upon final appeal:
(a) The person's state board approval shall be reinstated upon
his or her notification to the superintendent of public instruction
of the reversal.
(b) If the suspension of the state board approval was the sole
cause of his or her discharge from employment, the person shall be
reinstated upon his or her notification to the appropriate local or
intermediate school board of the reversal, with full rights and
benefits, to the position he or she would have had if he or she had
been continuously employed.
(6) Not
Except as otherwise provided
in this subsection, not
later than 15 days after the date of the conviction, the
prosecuting attorney in charge of a case in which a person who
holds state board approval was convicted of a crime described in
subsection (1) or (2) and the court that convicted the person shall
notify the superintendent of public instruction, and any public
school, school district, intermediate school district, or nonpublic
school in which the person is employed, of that conviction, of the
name and address of the person convicted, and of the sentence
imposed on the person. A prosecuting attorney in charge of a case
in which a person is convicted of a crime described in subsection
(1) or (2), and a court that convicts a person of a crime described
in subsection (1) or (2) shall inquire whether the person holds
state board approval. The superintendent of public instruction
shall make available to prosecuting attorneys and courts a list of
school occupations that commonly require state board approval. This
subsection does not apply after the department has notified the
attorney general and the state court administrative office that the
automated program described in subsection (15) has been developed
and implemented, as provided under subsection (15).
(7) Not later than 5 working days after receiving notification
of a person's conviction from the prosecuting attorney or the court
under subsection (6) or learning of a person's conviction through
the program developed under subsection (15) or through an
authoritative source, the superintendent of public instruction
shall request the court that convicted the person to provide a
certified copy of the judgment of conviction and sentence to the
superintendent of public instruction and shall pay any fees
required by the court. The court shall provide this certified copy
within 5
working 7 days after receiving the request and fees
under this section, even if the court is maintaining the judgment
of conviction and sentence as a nonpublic record.
(8) If the superintendent of a school district or intermediate
school district, the chief administrative officer of a nonpublic
school, the president of the board of a school district or
intermediate school district, or the president of the governing
board
of a nonpublic school is notified
by a prosecuting attorney
or
court or learns through an authoritative source that a
person
who holds state board approval and who is employed by the school
district, intermediate school district, or nonpublic school has
been convicted of a crime described in subsection (1) or (2), the
superintendent, chief administrative officer, or board president
shall notify the superintendent of public instruction of that
conviction within 15 days after learning of the conviction.
(9) For the purposes of this section, a certified copy of the
judgment of conviction and sentence is conclusive evidence of
conviction of a crime described in this section. For the purposes
of this section, conviction of a crime described in this section is
considered to be reasonably and adversely related to the ability of
the person to serve in an elementary or secondary school and is
sufficient grounds for suspension or revocation of the person's
state board approval.
(10) For any hearing under subsection (1), if the
superintendent of public instruction does not complete the hearing
procedures and make a final decision and order within 120 working
days after receiving the request for the hearing, as required under
subsection (1), the superintendent of public instruction shall
submit a report detailing the reasons for the delay to the standing
committees and appropriations subcommittees of the senate and house
of representatives that have jurisdiction over education and
education appropriations. The failure of the superintendent of
public instruction to complete the hearing procedures and make a
final decision and order within this 120 working day time limit, or
the failure of any other official or agency to meet a time limit
prescribed in this section, does not affect the validity of an
action taken under this section affecting a person's state board
approval.
(11)
Beginning 3 months after the effective date of the
amendatory
act that added this subsection July
1, 2004, the
superintendent of public instruction shall submit to the
legislature a quarterly report of all final actions he or she has
taken under this section affecting a person's state board approval
during the preceding quarter. The report shall contain at least all
of the following with respect to each person whose state board
approval has been affected:
(a) The person's name, as it appears on the state board
approval.
(b) The school district, intermediate school district, public
school academy, or nonpublic school in which the person was
employed at the time of the conviction, if any.
(c) The offense for which the person was convicted and the
date of the offense and date of the conviction.
(d) Whether the action taken by the superintendent of public
instruction was a summary suspension, suspension due to failure to
request a hearing, suspension, revocation, or reinstatement of the
state board approval.
(12)
Not later than 6 months after the effective date of the
amendatory
act that added this subsection October
1, 2004, the
superintendent of public instruction shall submit to the
legislature an inventory report with information on all final
actions taken under this section for the time period from June 23,
1992
until the effective date of the amendatory act that added
this
subsection April 1, 2004. The report shall contain at least
all of the information required in the quarterly report under
subsection (11) with respect to each person whose state board
approval was affected during that time period. If the
superintendent of public instruction determines that the
information required for the report is not available for any
portion of that time period, the superintendent of public
instruction shall include with the report a detailed explanation of
the information that is not available and the reasons why the
information is not available.
(13) This section does not do any of the following:
(a) Prohibit a person who holds state board approval from
seeking monetary compensation from a school board or intermediate
school board if that right is available under a collective
bargaining agreement or another statute.
(b) Limit the rights and powers granted to a school district
or intermediate school district under a collective bargaining
agreement, this act, or another statute to discipline or discharge
a person who holds state board approval.
(c) Exempt a person who holds state board approval from the
operation of section 1535a if the person holds a certificate
subject to that section.
(d) Limit the ability of a state licensing body to take action
against a person's license or registration for the same conviction.
(14) The superintendent of public instruction may promulgate,
as necessary, rules to implement this section pursuant to the
administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to
24.328.
(15) The department of information technology shall work with
the department and the department of state police to develop and
implement an automated program that does a monthly comparison of
the department's list of individuals holding a teaching certificate
or state board approval with the conviction information received by
the department of state police, including convictions contained in
a nonpublic record. After this automated program has been developed
and implemented, the department promptly shall notify the attorney
general and the state court administrative office that the
automated program has been developed and implemented.
(16)
(15) As
used in this section:
(a) "Conviction" means a judgment entered by a court upon a
plea of guilty, guilty but mentally ill, or nolo contendere or upon
a jury verdict or court finding that a defendant is guilty or
guilty but mentally ill.
(b) "Prosecuting attorney" means the prosecuting attorney for
a county, an assistant prosecuting attorney for a county, the
attorney general, the deputy attorney general, an assistant
attorney general, a special prosecuting attorney, or, in connection
with the prosecution of an ordinance violation, an attorney for the
political subdivision that enacted the ordinance upon which the
violation is based.
(c) "State board approval" means a license, certificate,
approval not requiring a teaching certificate, or other evidence of
qualifications to hold a particular position in a school district
or intermediate school district or in a nonpublic school, other
than a teacher's certificate subject to section 1535a, that is
issued to a person by the state board or the superintendent of
public instruction under this act or a rule promulgated under this
act.