June 21, 2011, Introduced by Senator KAHN and referred to the Committee on Education.
A bill to amend 1937 (Ex Sess) PA 4, entitled
"An act relative to continuing tenure of office of certificated
teachers in public educational institutions; to provide for
probationary periods; to regulate discharges or demotions; to
provide for resignations and leaves of absence; to create a state
tenure commission and to prescribe the powers and duties thereof;
and to prescribe penalties for violation of the provisions of this
act,"
by amending sections 3, 4, 4a, and 5 of article IV, section 1 of
article VI, and section 7 of article VII (MCL 38.103, 38.104,
38.104a, 38.105, 38.121, and 38.137), section 3 of article IV as
amended by 2005 PA 124, section 4 of article IV and section 1 of
article VI as amended by 1993 PA 60, section 4a of article IV as
amended by 1998 PA 326, and section 5 of article IV as amended by
1993 PA 59; and to repeal acts and parts of acts.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
ARTICLE IV
Sec. 3. (1) On the filing of charges in accordance with this
article, the controlling board may suspend the accused teacher from
active performance of duty until 1 of the following occurs:
(a) The teacher fails to contest the decision to proceed upon
the charges within the time period specified in section 4(1) of
this article.
(b)
A preliminary decision and order discharging or demoting
the
teacher is issued by the administrative law judge arbitrator
under
section 4(5)(i) 4 of this article.
(c)
If the preliminary decision and order is to reinstate the
teacher,
a final decision and order is rendered by the tenure
commission
under section 4(5)(m) of this article.
(2) If a teacher is suspended as described in subsection (1),
the teacher's salary shall continue during the suspension. However,
if the teacher is convicted of a felony that is not a listed
offense or of a misdemeanor that is a listed offense, the
controlling board may discontinue the teacher's salary effective
upon the date of the conviction. If the teacher is convicted of a
felony that is a listed offense, the controlling board shall
discontinue the teacher's salary effective upon the date of
conviction. As used in this subsection, "listed offense" means that
term as defined in section 2 of the sex offenders registration act,
1994 PA 295, MCL 28.722.
(3)
If a preliminary decision and order discharging a teacher
is
issued by the administrative law judge and the tenure commission
subsequently
reverses the preliminary decision and order of the
administrative
law judge, the tenure commission may order back pay.
Sec. 4. (1) A teacher on continuing tenure may contest the
controlling board's decision to proceed upon the charges against
the
teacher by filing a claim of appeal with the tenure commission
demand for arbitration with the Michigan employment relations
commission
and serving a copy of the claim of
appeal demand for
arbitration on the controlling board not later than 20 days after
receipt
of the controlling board's decision. The controlling board
shall
file its answer with the tenure commission and serve a copy
of
the answer on the teacher not later than 10 days after service
of
the claim of appeal. The
Michigan employment relations
commission shall select an arbitrator for the arbitration using its
procedure for the selection of an arbitrator for a grievance
arbitration. If the teacher does not contest the controlling
board's decision in the time and manner specified in this
subsection, the discharge or demotion specified in the charges
takes effect and the teacher shall be considered to have waived any
right to contest the discharge or demotion under this act.
(2)
An administrative law judge described in subsection (3)
The arbitrator shall furnish to each party without undue delay a
notice of hearing fixing the date and place of the hearing. The
hearing date shall not be less than 10 days after the date the
notice
of hearing is furnished and shall not be more than 60 90
days
after service of the controlling board's answer the selection
of
the arbitrator unless the tenure
commission Michigan
employment
relations commission grants a delay for good cause shown by the
teacher or controlling board.
(3)
The hearing shall be conducted by an administrative law
judge
who is an attorney licensed to practice law in this state and
is
employed by the department of education. An administrative law
judge
who conducts hearings under this section shall not advise the
tenure
commission or otherwise participate in a tenure commission
review
of an administrative law judge's preliminary decision and
order
under this section.
(3) (4)
Except as otherwise provided in
this section, the
hearing shall be conducted in accordance with chapter 4 of the
administrative
procedures act of 1969, Act No. 306 of the Public
Acts
of 1969, being sections 24.271 to 24.287 of the Michigan
Compiled
Laws, 1969 PA 306, MCL
24.271 to 24.287, and in accordance
with
rules promulgated by the tenure commission.Michigan employment
relations commission.
(4) (5)
The hearing and tenure
commission review shall be
conducted in accordance with the following:
(a) The hearing shall be public or private at the option of
the teacher.
(b) The hearing shall be held at a convenient place in the
county in which all or a portion of the school district is located
or,
if mutually agreed by the parties, at the tenure commission
Michigan employment relations commission offices in Lansing. The
administrative
law judge's arbitrator's fees
and necessary travel
expenses
associated with conducting the hearing outside Lansing and
rendering
a decision shall be borne equally by
the tenure
commission
Michigan employment relations
commission and the
controlling board.
(c) Both the teacher and the controlling board may be
represented by legal counsel.
(d) Testimony at the hearing shall be on oath or affirmation.
(e)
A At the request of either
the teacher or the controlling
board, a stenographer shall make a full record of the proceedings
of the hearing. The cost of employing the stenographer and of
providing
the record shall be borne equally by the tenure
commission
and the controlling board.by
the party requesting the
stenographer. The party that did not request the stenographer may
purchase a copy of the transcript from the stenographer.
(f)
The administrative law judge arbitrator
may subpoena
witnesses and documentary evidence on his or her own motion, and
shall do so at the request of the controlling board or the teacher.
If a person refuses to appear and testify in answer to a subpoena
issued
by the administrative law judge, arbitrator, the party on
whose behalf the subpoena was issued may file a petition in the
circuit court for the county in which the hearing is held for an
order requiring compliance. Failure to obey such an order of the
court may be punished by the court as contempt.
(g)
The hearing shall be concluded not later than 90 120 days
after
the teacher's claim of appeal demand
for arbitration was
filed
with the tenure commission.Michigan
employment relations
commission.
(h)
The administrative law judge arbitrator
shall make the
necessary orders to ensure that the case is submitted for decision
not
later than 50 30 days after the hearing is concluded.
(i)
Not later than 60 35 days after submission of the case for
decision,
the administrative law judge arbitrator
shall serve a
preliminary decision and order in writing upon each party or the
party's
attorney and the tenure commission. Michigan employment
relations
commission. The preliminary decision
and order shall
grant, deny, or modify the discharge or demotion specified in the
charges.
(j)
Not later than 20 days after service of the preliminary
decision
and order, a party may file with the tenure commission a
statement
of exceptions to the preliminary decision and order or to
any
part of the record or proceedings, including, but not limited
to,
rulings on motions or objections, along with a written brief in
support
of the exceptions. The party shall serve a copy of the
statement
of exceptions and brief upon each of the other parties
within
the time limit for filing the exceptions and brief. If there
are
no exceptions timely filed, the preliminary decision and order
becomes
the tenure commission's final decision and order.
(k)
Not later than 10 days after being served with the other
party's
exceptions and brief, a party may file a statement of
cross-exceptions
responding to the other party's exceptions or a
statement
in support of the preliminary decision and order with the
tenure
commission, along with a written brief in support of the
cross-exceptions
or of the preliminary decision and order. The
party
shall serve a copy of the statement of cross-exceptions or of
the
statement in support of the preliminary decision and order and
a
copy of the brief on each of the other parties.
(l) A matter that is not included in a statement of
exceptions
filed
under subdivision (j) or in a statement of cross-exceptions
filed
under subdivision (k) is considered waived and cannot be
heard
before the tenure commission or on appeal to the court of
appeals.
(m)
If exceptions are filed, the tenure commission, after
review
of the record and the exceptions, may adopt, modify, or
reverse
the preliminary decision and order. The tenure commission
shall
not hear any additional evidence and its review shall be
limited
to consideration of the issues raised in the exceptions
based
solely on the evidence contained in the record from the
hearing.
The tenure commission shall issue its final decision and
order
not later than 60 days after the exceptions are filed.
(5) (6)
After giving the party notice and
an opportunity to
comply,
the administrative law judge or the tenure commission
arbitrator
may dismiss an appeal a demand for arbitration or deny a
discharge or demotion for a party's lack of progress or for a
party's repeated failure to comply with the procedures specified in
this
section or the tenure commission's Michigan employment
relations commission rules.
(6) (7)
A party aggrieved by a final decision
and order of the
tenure
commission may appeal arbitrator
may seek to vacate the
decision
and order to the court of appeals in accordance with the
Michigan
court rules within 20 days after the date of the decision
and
order. of the arbitrator by filing
an action to vacate the
decision and order in the circuit court for the county of Ingham
within 20 days after the date of the decision and order of the
arbitrator. A party may seek vacation of the decision and order
only for a reason that an arbitrator's award in a grievance
arbitration may be vacated under law. If the court denies the
request to vacate the decision and order, the court shall order
enforcement of the arbitrator's order. After the time for filing an
action to vacate the decision and order has expired without the
filing of such an action, a party may file an action in the circuit
court for the county of Ingham to enforce the order of the
arbitrator. In an action to enforce the order of the arbitrator,
upon finding that the period for seeking vacation of the order has
expired without an action to vacate having been filed, the court
promptly shall issue an order of enforcement.
Sec. 4a. (1) As used in this section:
(a) "Developmental disability" means that term as defined in
section 100a of the mental health code, 1974 PA 258, MCL 330.1100a
except that, for the purposes of implementing this section,
developmental disability includes only a condition that is
attributable to a mental impairment or to a combination of mental
and physical impairments, and does not include a condition
attributable to a physical impairment unaccompanied by a mental
impairment.
(b) "Witness" means an alleged victim under subsection (2) who
is either of the following:
(i) A person under 16 years of age.
(ii) A person 16 years of age or older with a developmental
disability.
(2) This section only applies to a hearing held under this
article in which a witness testifies as an alleged victim of
sexual, physical, or psychological abuse. As used in this
subsection, "psychological abuse" means an injury to the witness's
mental condition or welfare that is not necessarily permanent but
results in substantial and protracted, visibly demonstrable
manifestations of mental distress.
(3) If pertinent, the witness shall be permitted the use of
dolls or mannequins, including, but not limited to, anatomically
correct dolls or mannequins, to assist the witness in testifying on
direct and cross-examination.
(4) A witness who is called upon to testify shall be permitted
to have a support person sit with, accompany, or be in close
proximity to the witness during his or her testimony. A notice of
intent to use a support person shall name the support person,
identify the relationship the support person has with the witness,
and give notice to all parties to the proceeding that the witness
may request that the named support person sit with the witness when
the witness is called upon to testify during any stage of the
proceeding. The notice of intent to use a named support person
shall
be served upon all parties to the proceeding. The controlling
board
arbitrator shall rule on any objection to the use of a named
support person prior to the date at which the witness desires to
use the support person.
(5) In a hearing under this section, all persons not necessary
to the proceeding shall be excluded during the witness's testimony.
(6) This section is in addition to other protections or
procedures afforded to a witness by law or court rule.
Sec. 5. For a period of 3 years after the effective date of
the termination of the teacher's services, a teacher on continuing
tenure whose services are terminated because of a necessary
reduction in personnel shall be appointed to the first vacancy in
the school district for which the teacher is certificated and
qualified.
However, for a teacher on continuing tenure in a school
district
whose services were terminated before the effective date
of
the amendatory act that added this sentence, the teacher's right
under
this section to be appointed to the first vacancy in the
school
district for which the teacher is certificated and qualified
shall
continue for a period of 3 years after the effective date of
the
amendatory act that added this sentence. This section does not
prevent a school district from reemploying after the 3-year period
specified in this section a teacher described in this section who
was previously employed in that school district.
ARTICLE VI
Sec. 1. A teacher who has achieved continuing tenure status
may
appeal to the tenure commission arbitration
any decision of a
controlling board under this act, other than a decision governed by
article IV on discharge or demotion of a teacher on continuing
tenure, within 20 days from the date of the decision or within 20
days of receiving from the controlling board notice of the right to
appeal that decision under this act, whichever is later, by filing
a demand for arbitration with the Michigan employment relations
commission
and serving a copy on the controlling board. The tenure
commission
shall provide for a hearing on the appeal. Michigan
employment relations commission shall select an arbitrator for the
arbitration using the same procedure as under section 4 of article
IV. Notice and conduct of the hearing shall be the same as provided
in
article IV and in rules promulgated by the tenure
commission.Michigan employment relations commission.
ARTICLE VII
Sec.
7. The tenure commission is hereby Michigan employment
relations
commission is vested with such the powers
as that are
necessary to carry out and enforce the provisions of this act.
Enacting section 1. Sections 1, 2, 3, 4, 5, 6, 8, 9, and 10 of
article VII of 1937 (Ex Sess) PA 4, MCL 38.131, 38.132, 38.133,
38.134, 38.135, 38.136, 38.138, 38.139, and 38.140, are repealed.