*1 Harper Chester Woods Sch Dist 235 v CHESTER HARPER WOODSSCHOOL DISTRICT 6, 1978, Docket No. 77-2499. Submitted June at Detroit. Decided 27, appeal applied November 1978. Leave for. Chester, Joseph Eugene
Plaintiffs Thomas Stevens and Rieckhoff employ are tenured teachers in defendant School District who were laid off in 1972 as a result of a personnel. taught reduction in Mr. had was, elementary physical years education for 21 in and addi- tion, grade subjects certified to teach and all 7th 8th as well as English, history, biology grades through French and 12. teacher, Goodwin, elementary phys-ed Another Mr. was af- layoff fected the 1972 in that he was transferred to an elementary opening elementary classroom. an When arose in education, Goodwin, physical pursuant Mr. to the collective agreement, bargaining reassigned vacancy. to fill the When openings English, two occurred in Mr. Chester was considered approved developmental but not because one involved a lan- guage and lab the other a course drama and it was felt that 21-year English unquali- Mr. Chester’s absence from him made program. Stevens, years fied to handle either Mr. in 14 district, taught general grades defendant school had science in 12, civics, through grade grade history, 9th 11th world 8th grade (shop) grade shop, home mechanics and 9th auto varsity swimming coached football. He was also certified to grade subjects, history teach all 7th and 8th science and grades through physical grades. 12 and education for all Two positions opened up, teaching grade one 7th and 8th science grade chemistry teaching and 11th and 12th and the other 7th grade science, general rejected math and but Mr. Stevens was unqualified Rieckhoff, chemistry. for either math Mr. coming district, was, years, before to defendant school charge junior high program instrumental music [1] [2] [4] [3] [5-9] 68 Am Jur 68 Am Jur 68 Am Jur 68 Am Jur 68 Am Jur 2d, 2d, 2d, 2d, References 2d, Schools Schools Schools Schools Schools §§ §§ §§ §§ §§ for Points in Headnotes 50-55, 138-143. 149-160, 50-55,138-143, 132. 138-143. 202-214. 149-160. taught he school district district. In defendant another school band, high high junior junior music elementary, and senior music, appreciation girls’ which was discontinued vocal *2 8th all 7th and also certified to teach lack of interest. He was grades grades grade in subjects, social studies music in all and elementary opening ap- through music 12. When an vocal peared rejected his vocal music Mr. Rieckhoff was because teaching his in file because of was not his and certification teaching failure in the course before. appealed fill school board’s decisions to teachers the These the tenure commission the with new teachers to qualified alleging they were and for the vacancies that certified deliberately or that the school board entitled them they assignments for which to create vacancies reshuffled class all qualified. The that three not tenure commission found were they for which were certified were denied the first vacancies attempt qualified that the school board did block by manipu- reemployment of Mr. Mr. Stevens the Chester and Court, lating Wayne Roland L. schedules. The Circuit class J., Ozark, appeals. Held: affirmed. Defendant requiring "qualified”, the that a in statute 1. word a of a reduction tenured teacher laid off as result personnel vacancy appointed first is to the which he competency qualified, contemplates some level of certified and certification; beyond the local school above and mere proper body the for that of to establish criteria level binding competency commis- review the tenure which is on sion, showing arbitrary, unrea- absent a that the criteria was promulgated sonable or in bad faith. 2. The tenure commission must determine whether school arbitrary, are unreasonable board’s criteria for whether, faith, not, promulgated applying if bad school standards, complaining qualified for are board’s vacancies, and, not, present they any of the if would qualified been have occurred have for vacancies would finding rescheduling any manipula- had there been no before rescheduling tion in can be made. in- Reversed and remanded the tenure commission with structions. J., part. part He Bronson, concurred and dissented agreed may substitute its own tenure commission not judgment qualifications as to for that of a teacher’s board in the of a the board’s absence determination arbitrary, capricious decision was or done in bad faith as subterfuge protections in order to of the teacher circumvent the Woods Sch Dist finding manipulation tenure act. But he would hold that the finding by of class schedules amounted to a the tenure commis- part deprive sion of bad faith on the of the school board so as to two of the teachers vacancies for which the board had previously they finding determined were and the competent, supported by material and substantial on evidence bargaining whole record. He would hold that a collective agreement rights cannot waive conferred teachers under the act, finding manipulation by would affirm the board with to Chester and Stevens and would remand to the commission for a determination of whether the board acted arbitrarily determining or in bad faith in that Rieckhoff was open position. for the
Opinion of the Court 1. Schools and School Districts —Statutes—Tenured Teachers— Statutory Construction —Certified Qualified Teacher — Teacher. "qualified” contemplates competence
The term some level of beyond governing above and mere certification in a statute *3 filling by of vacancies a tenured teacher and the local school proper body board is to establish the criteria for that level 15.2005). (MCL 38.105; competence of MSA 2. Schools and School Boards —Statutes—Tenured Teachers— Right Reappointment Reviewability—Scope of of — Review. by A claim a tenured teacher who had been laid off due to a personnel reduction in that he had been denied his right provided by of first recall as statute and a school probationary board decision to fill available vacancies with by teachers violated the statute is reviewable the tenure com- mission; novo, while the review is is de tenure commission free (MCL to reexamine the facts as found the school board 2021). 38.105, 38.121; 15.2005, MSA 3. Schools and School School Districts —Teachers—Vacancies in Legislative —School Boards — Function. parameters qualification The establishment of of fill legislative quasi-judicial in a school is a rather than function proper and is the function of the local board. 4. Schools and School Districts —Duties of School Boards —Stat- utes —Criteria of Teachers. of Qualification board, commission, charged by
The local school not the tenure is duty hiring teachers; duly qualified statute with the of there-
fore, the criteria of for the school board to determine is 15.41231). (MCL 380.1231; qualification 5. Commission —Decisions and School Districts —Tenure Schools Tenured Teacher- of School Qualification Boards — Scope of Review. commission, reviewing of a school a determination
The tenure in for an available tenured teacher not that a board apply qualification position, for set the criteria is constrained arbitrary, criteria is either board unless that out the school faith; promulgated a a in bad determination or unreasonable promul- arbitrary, not unreasonable school board which is binding upon gated the tenure commission. in faith is bad 6. and School Districts —School Boards —Tenured Teach- Schools ers —Due Teachers. Qualification Process — process by a examination of is not offended school board’s Due competency” a basis "demonstrated prior hearing filling providing a tenured vacancies without complaining teachers is unaffected the status teachers where adequate provided. prompt, review is administrative by Bronson, J. Part, Part Dissent
Concurrence Boards —Tenure Commis- 7. Districts —School Schools School Scope of Review. sion — manipulate may arbitrarily a or in bad faith A school board off, positions for which laid tenured schedule so as close qualiñed; teachers are the determination subterfuge question for the acted bad faith or as tenure commission. Findings 8. and School Districts —Tenure Commission — Schools Review—Scope of Fact — of Review. findings Appeals, reviewing the The Court of factual commission, independent may determina- not make an conclusions tion of the facts but must see that the commission’s supported by competent, are and substantial evidence material on the whole record. *4 9. and School Schools Districts —Statutes—Contracts—Teacher’s Rights. Conflicting agreement
Rights bargaining which would under a collective rights operate deprive the teacher a of his under (MCL 38.172; yield provisions of the act tenure act must to the 15.2054). Harper 1978] Woods Sch Dist op Opinion the Court Fieger, plaintiffs. Cousens, Golden & LaBarge, Dinning, P.C., & Zatkoff for defendant. P.J., and C. W. Bashara, Before: and Bronson Simon,* JJ.
W.C. J. Plaintiffs are three schoolteach- Simon, employ ers tenure in the of defendant school among they district. In 1972 were those laid off drop a when district revenue caused an ruling millage property adverse precipitated tax a defeat personnel. a reduction in improved, however, When financial conditions new positions ap- created, were but the school board pointed probationary new, to fill teachers the va- cancies. taught elementary physical
Mr. Chester had education in the Woods School District for years. subjects He was all certified teach at eighth grade history, levels, the seventh and English, biology grades through French and elementary physical 12. While he and another teacher, Goodwin, education Mr. were both af- layoff, being assigned fected the latter to an elementary classroom, Goodwin, Mr. because of request pursuant bargaining made a collective agreement between the school district and the reassigned association, to fill the vacancy physical elementary which later arose openings Eng- education. When two occurred lish, Mr. Chester was considered both but not approved developmental because one involved a language lab and the It other course in drama. 21-year felt the school his English teaching secondary absence from at the * judge, sitting Appeals by assignment. Circuit on Court *5 App 235 87 Opinion Court of the to either unqualified him handle level rendered to implemented. were programs these with the Har- Mr. Stevens had been associated 14 years, variously School District for per Woods 12, grades through teaching general science for 8th civics, history, 11th world grade 9th grade grade shop, 9th auto grade home mechanics and He coaching swimming and football. varsity and 7th and all at subjects was to teach certified levels, grades history 8th science and grade grades kin- through physical and education positions opened, 12. two dergarten through When 11th teaching grade one 7th and 8th science and teaching grade 12th and the other chemistry and science, he general 7th grade mathematics unqualified rejected both was considered for but Mr. in and mathematics. Stevens’ chemistry both general to science and endorsement restricted undergraduate prepa- he had mathematics had no ration. Woods, Rieckhoff, coming Harper
Mr. before instrumental charge high had of the junior been program years. in Benton Harbor music School Dis- employed by Harper While Woods taught junior he as well as elementary trict band, appreciation high junior high senior music girls’ vocal music. vocal one semester program music was scheduled for another semes- ter disinterest but discontinued because of student He certified program. instructor’s grades music and teach all 7 and subjects grades through social studies in 12 and music through vacancy kindergarten grade. 6th When level teaching elementary vocal music at arose, unquali- he was considered but determined Mr. fied. RieckhoiFs certification Apparently, file his at teach vocal music was not within 1978] Sch Dist Opinion the Court and the nonsuccess of decision the board’s time of teaching prior attempt the course caused at his competent in the that he was not conclude them to area. to fill each new teachers were hired
After *6 plaintiffs appealed vacancies, the board’s decisions charging commission, the action that tenure to the violated the teachers’ of the school board seq. They seq.; et MSA 15.1971 act. MCL 38.71 et argued alternatively they either certi- that were thereby, under MCL for and fied and positions 15.2005, to the entitled 38.105; MSA not, deliber- created, or, the school board if that assignments ately so as to create reshuffled class qualified. they were not for which dissenters, commission, with two The tenure In the board. the the reversed decisions controlling opinion stated: opportunity aware of are "These Commissioners inclined, have, to circum- they if are so school boards juggling Tenure Act provisions of the vent offerings in a manipulating course assignments and or block the recall layoff cause the manner which would action The result of such of a tenured teacher. without observ- of a tenured teacher effective dismissal appeal, Upon process provisions of the Act. ing the due complaint if a any determine we will scrutinize such faith, good will dis- were made board’s actions when new teacher courage employment any layoff. on tenured teachers are cause, Appellee finding, present "It is our Chester, appellants and Rieckhoff deny did Stevens quali- vacancy’ they were certified 'first for which teach, re-employ- attempt block the fied did * * * by manipulating (and) ment Stevens of Chester class schedules.” upheld by Wayne
And, this decision was App 235 87 Mich Opinion of the Court on the tenure The dissenters Circuit Court. County were either plaintiffs had held that commission in the school to teach or not not certified opined: They established. as was year program "(T)he the recall of teachers in which manner deliberate, studied, process by systematic effected was a background and the teachers facets of which all [sic] on recall prior to a decision experience considered were being made. Commissioners rule "These and is properly executed its duties District has School 38.105; compliance with in exerting teachers on nel.” 15.2005] [MCL in the recall of as to its discretion person- due to original.) reduction lay off (Emphasis conflict which is primary relate a opinions
These appeal, here on the central issue raised to review has jurisdiction the tenure commission *7 of a school board de novo decisions teachers to vacan- of tenured reappointment reduction cies which arise after layoff. has caused their personnel teaching Plaintiffs’ claim to the 15.2005; pro- 38.105; MSA upon MCL based vides: services permanent on tenure whose "Any teacher necessary reduction of a
are terminated because personnel school vacancy in appointed to the first shall be qualified.” and district for which he is certified context, however, "certified” Even this term terms. The "qualified” are not synonymous competence level "qualified” contemplates some certification, the criteria mere beyond above school board. which must be established Woods Sch Dist Opinion of the Court Farmer, Holton Public Schools v 765, Mich App (1977) (M.B. 772; 259 NW2d 219 J., Breighner, concurring). Accord, 380.1231(1); MCL MSA 15.41231(1) (formerly 340.569; MCL 15.3569); MSA Anderson v Harper Dist, Woods Public School (1977). 227; NW2d 718
Where a school board is acting in its quasi-judi-
capacity
cial
for removal of
cause,
powers are greatly circumscribed by the teachers’
tenure act. "Discharge or demotion of a teacher on
continuing tenure
be
may
made
only
reasona-
cause,”
just
ble and
38.101;
15.2001,
MCL
after
providing a hearing which accords
38.102;
with MCL
MSA 15.2002 and MCL 38.104;
Further,
MSA 15.2004.
38.137;
MCL
MSA 15.2037
vests the tenure commission with such powers as
are necessary to
out
carry
and enforce the act’s
provisions, and
38.139;
MCL
MSA 15.2039 charges
it with the
duty
standing "as a board of review
for all cases appealed from the decision of a con-
trolling board”. Review is de novo. Long v Board of
Education,
1, Fractional,
Dist No
Oak
Royal
Twp
and City
Park,
of Oak
324;
350 Mich
244
Opinion
the
of
Court
capricious
employment
"to eliminate
which is
protect
practices by school boards
dismissals”.
arbitrary
unreasonable
from
Education, 72
Board of
Harper Woods
Pounder v
(1976), modi
723; 250 NW2d
Mich App
den,
(1977),
reh
fied, 402 Mich
91;
NW2d 287
(1978).
whether,
however,
question is
be
Where,
the
necessity,
particular
a
cause of economic
instance,
not
off
the first
he is
laid
in
should be
against him
charges
entitled to either notice
board.
controlling
the
hearing
or a
before
nei
gesture
since
Such would constitute
useless
called
being
performance
ther his conduct nor
of
of
City
v School Dist
the
question. Steeby
into
Park,
395; 224
Highland
App
56 Mich
NW2d
(1974).
the
Here,
tenure
commission
review
[controlling]
the
limited to "whether
would be
education,
of a
guise
'necessary
under
board of
used
methods
personnel’,
circuitious
reduction
from its school
removing
system
[teacher]
protections
without
afforded
teachers’
Big
Freiberg
v Board of Education of
act”.
Dist,
De
404, 416;
Bay
Noc School
App
61 Mich
(1975).
Goodwin v Board of Educa
NW2d
Kalamazoo,
School
City
tion
Dist
(1978).
559;
82 Mich
In this is reviewable to the board’s decision with squarely by It within falls the tenure commission. language 15.2021, "deci- 38.121; MSA of MCL controlling Accord, under this act”. board sion of a Big Bay Freiberg De Noc Board of Education v Long supra. However, while as in Dist, School Rehberg, novo, the tenure be de review would the facts as free to reexamine commission is may redefine It no more the school board. found "qualification” the board set the criteria of of "certification” outline new standards than parameters the state. To set the board a function of the school fill vacancies is usurped by may commis- the tenure not be which quasi-judicial legislative than a It rather sion. function. gov- though agencies, districts, are State
"School controlling locally are their boards erned Rehberg Board of chosen the electorate.” Twp Melvindale, School Dist Ecorse Education of County, Wayne 541, 547; 48 330 Mich No (1951). It is the school NW2d qualification, criteria of teacher determines supra, Farmer, because Holton Public Schools v board, Tenure Commis- not the State is the local sion, hiring duly charged duty of with the who 87 Mich op Opinion the Court layoff, initially and after teachers both (formerly MSA MCL MCL 380.1231; 15.41231 15.3569); Anderson v 340.569; supra. opinion, Dist, In construc- our Public School harmony the ex- law in tion of the tenure protect legislative policy pressed arbitrary from practices per- does and unreasonable entirely destroy mit so liberal as to a construction right independently deter- of a local board policy matters of in the administration mine local school affairs. mination of a school board is *10 reviewing
Thus, in the deter- that a tenured teacher position, the ten- for an available apply the criteria is constrained to ure commission qualifications school board unless of set out the arbitrary, unreasonable that criteria is either itself expand promulgated in To or bad faith. further jurisdiction the of the commission would be legislator qualification render it the of all teacher Legislature expense If at the of local control. the legis- deprive governing of intended to bodies local qualification, control over teachers’ lative intent should have been tenure definitely in the stated Rehberg Cf., v Board of of act. Education Twp Wayne Melvindale, Ecorse School Dist No County, supra. regard adopted by
Here, the with the criteria dissenting board, school commission noted that: members of the tenure personnel procedure "Dr. testified Babich that a was of the formulated to assist him and other members making in He fur- administrative staff such decisions. procedure uniformly ther testified that was qualifications consistently determining in followed determining vacancy. of all for a In qualified, certified and consideration was was certification, given to such items as the teacher’s pur- degree, teacher had teacher’s whether or not the Woods Sch Dist Opinion of the Court successfully specific subject sued curricula areas for assignment, potential teaching en- teacher’s appropriate agency, dorsement from an state evidence endorsement, original of further reinforcement competency assigned demonstrated within his or her level within the school district.” disre- majority completely commission garded this basis favor its own. Without ever crite- considering adopted ria arbitrary, unreasona- faith, ble promulgated bad the majority erroneously chose to view qualification purely Indeed, from a perspective teaching experience. with opinion replete reference to "new to- For rees”. example, Mr. Chester they state: English dispute "The two were filled hired, newly newly graduated
two Surely teachers. Chester was at least as new hiree who teaching experience.” had no This we feel improper. unsuitable,
While we do not hold its criterion *11 the tenure commission failed to accord the board’s determination qualification of it the deference novo, the facts is de due. Although of review the commission is not free to of substitute idea qualification for of the local board. Where the board’s definition is neither arbitrary, unreasona- ble faith, nor promulgated binding bad it is upon the tenure Only may commission. the facts be found anew.
Moreover, (for- 380.1282; MCL MSA 15.41282 15.3583) merly MCL 340.583; provides: "The board of a school district shall establish and Opinion op the Court schools, departments it deems grades, carry on the im- for the maintenance or desirable schools, the courses of provement of the determine attending pupils study pursued, to be and cause taught in the schools or district be expedient.” departments the board deems qualification, this of unlike the determination Not authority grant with it carries the local board by power will be exercised commitment that duly the school the voters of those elected finding that a decision of the Absent a district. scheduling was arbi- class board trary, may faith, or made bad unreasonable overturned the tenure commission. not be opinion bar, of the tenure case at In arbi- infers that class schedules were commission re-employ- plaintiffs’ trarily manipulated to block finding upon predicated ment, an erro- but such any qualification. Before neous determination finding manipulation made, it first must can the school board’s criteria be determined whether arbitrary, unreasonable are either ap- promulgated not, whether, faith; in bad if complain- plying ing standards, school board’s any present are of the they vacancies; and, not, if have have would qualified for been would rescheduling. occurred there no Since had been finding any made, such determinations were not manipulation premature. Therefore, proper disposition of this case to reverse remand to the tenure commission for a determina- setting whether, tion of their standards reappointment, arbitrarily, the school board acted unreasonably not, or in bad If the criteria faith. adopted the school should resolu- control subsequent tion issues.
1978] Woods Sch Dist Bronson, Partial Dissent J. Finally, it is of no moment that the school board competency” examined as a "demonstrated basis affording prior hearing. without for Where, complaining here, the status of the prompt, adequate is unaffected and teachers ministrative review is ad- provided, 38.121; MCL MSA process 15.2021, due is not offended. Fusari v Steinberg, 379; 533; US 95 S Ct 42 L Ed 2d (1975), den, 955; 1340; reh 420 US 43 L S Ct Ed (1975). 2d
Reversed and remanded to the tenure commis- opin- sion for reconsideration with consistent this ion.
Bashara, P.J., concurred. (concurring part, dissenting J.
Bronson, part). indepen- The tenure commission made two findings dent of fact this case which must be separately. contrary First, found, examined finding, plaintiffs defendant board’s were teaching positions for certain which be- open beginning came school at of the 1973-1974
year. Secondly, it found that defendant manipulated, board had class and teachers’ sched- plaintiffs ules so as to exclude Stevens and Chester positions they from for which would have been rescheduling. but for the finding, agree In to the first I majority and would reverse the decision of the By statute, tenure commission. the teachers. the school board is body qualifications authorized to set the for its 15.41231, 380.1231;
MCL
Holton
Farmer,
765, 772;
Public Schools v
77 Mich
(1977) (M. Breighner,
J.,
The qualifications decision as to the teachers’ for however, the open positions, end does not commission’s inquiry. Assuming arguendo that the school properly board had found that plaintiffs qualified were not the open positions, for the tenure empowered commission is still to deter- mine whether the school board manipulated class schedules in deprive such a way plaintiffs as to positions for which the board had determined they qualified. were A school board cannot through do indirection prohibited what it is doing from di- rectly. Just as the board not may arbitrarily or in bad determine faith that tenured teachers are unqualified open positions, may also arbitrarily manipulate bad faith the sched- ule1 so positions close for which the laid-off Freiberg Bay Big The case of v Board of Education of de Noc District, 404; (1975), School 61 Mich NW2d instructive point. alleged on this The teacher which that case there no necessity required employment, economic termination of his juggled but instead class schedules were This to eliminate him. Court jurisdiction found that the tenure commission hear had this complaint. holding This Court on based one of the deleterious Sch Dist Bronson, Partial Dissent J. are qualified. determination board acted in bad faith or as a subterfuge question for the tenure commis Freiberg, sion. Cf. supra, Goodwin v Board of Education of the School Dist of the of Kala City mazoo, (1978). App 559; NW2d case, present
In the the tenure commission made such a determination of bad faith. It held that school board had itself plaintiff determined qualified Stevens was to teach certain but subjects, had purposefully rearranged the schedule in such a manner as to combine the subjects which he subjects which he was not deprive plaintiff so as to into reentry *14 the school system.
In reviewing the factual
findings of the tenure
commission,
this Court’s function is not
to make
an independent
facts,
determination
of the
but
merely to see whether
the commission’s
conclu-
sions are "supported
by competent, material
(Em-
substantial
evidence on the whole record”.
omitted.)
Beebee v
phasis
Schools,
Haslett Public
718,
66 Mich App
720;
(1976),
Mr. Stevens had undergraduate an major practices sought prevent, namely, the teacher tenure act to discharge of ing the teachers "in order to effect economies either diminish- increasing number of teachers and the amount of work assigned retained, by creating to those vacancies to be filled salaried, inexperienced lower employees.” 37 Mich L Rev (1939), quoted Freiberg, supra at 413. present merely The Freiberg. case is the reverse of Instead of juggling teacher, charge the schedule to terminate a here is that juggled keep returning. the schedule was the teacher from In case, empowered ques- either tion of the tenure commission is to decide the manipulation. Bronson, Partial Dissent J.
general general science. He was certified teach grades through taught science in 12 and had general science in defendant school district for the previous years primarily grades through 12. Defendant school board conceded that he was general to teach science. He year rehired for the 1973-1974 school because the open position called for someone who could teach chemistry four science courses and one course and plaintiff Stevens was not deemed to teach chemistry. During year the 1972-1973 school there taught teachers, were two general one who five courses in taught science, and one who four chemis- try courses and one science course. Before the year start of the 1973-1974 the school district chemistry decided to transfer one course from the chemistry give teacher and to the science allegedly teacher because it was dissatisfied with chemistry rescheduling teacher. It was this subterfuge that the tenure commission found as a deprive plaintiff reentry Stevens of into the system. finding I cannot hold this erro- neous. chemistry taught teacher had for defendant many years,
school district
but
it was
plaintiff
sought
when
Stevens
to be rehired that
away
defendant school district decided to take
one
chemistry
Secondly,
of the teacher’s
classes.
if
*15
truly
defendant
school district was
dissatisfied
way
taught chemistry
with the
the teacher
and
improve
quality
made the
to
transfer
of educa-
why
only
chemistry
tion,
did it transfer
one
class?
The transfer of one class would be
to
sufficient
deprive plaintiff
reentry,
Stevens
but it would
upgrade
chemistry pro-
not be sufficient to
gram.
allegedly
chemistry
The
deficient
charge
chemistry program
would still be in
Sch Dist
Chester
Bronson,
J.
Partial Dissent
majority
have to
would still
students
and the
tiny minority
Only
chemistry
him.
from
take
given
opportunity to have a
would be
students
supposedly
reasoning
superior
The school district’s
teacher.
arbitrary
best,
seems
and at worst
at
plaintiff
deprive
of a
to
effort
to be
concerted
system.
to
chance
reenter
arbitrary
going
admit to
to
No administrator
can
be
Such decisions
or bad faith decisions.
viewing
of each
the circumstances
determined
body
is the
The
commission
case.
individual
disputes.
expertise in the field of teacher
with the
Community
Lipka
City
Schools, 59
v Brown
See
(1975),
App 175; 229
modified 399
NW2d
Mich
(1977),
gtd 400
704;
reh
Mich
board’s failure rehire prior 1972-1973 school off to the Chester laid year district when due economic necessities physical totally education had to eliminate program. lay plaintiff had off Prior to his taught physical dis- education defendant years. concedes The school board trict he physical Due education. teach *16 87 Bronson, Partial Dissent J. to the improved picture financial of the school district for the school year 1973-1974 the district reinstated its physical program education although on a more limited scale.
The program reinstallation created one in the vacancy physical education department. The gave position Goodwin, Mr. experience teacher with six years’ at the school formerly taught who physical education with Mr. Chester but who was transferred to another de- partment when original cut back was made. The school board gave Mr. Goodwin the vacancy claiming that it was contractually bound by the terms of the collective bargaining agreement assign any position in a reopened department to a teacher who had been transferred out of the de- partment requested but to be transferred back. Mr. Goodwin request. made such a
The school board claims that there was no va- cancy because it was obligated contractually reinstate Mr. Goodwin. This is incorrect. A va- cancy created when the physical education program question reinstated. becomes what is the interrelation between the teacher tenure act and the collective bargaining agree- ment. The teacher tenure act specifically states that a tenured teacher laid off due to necessary reduction in personnel must be appointed to the first vacancy which he is qualified. certified and 38.105; MCL MSA 15.2005. The act also states that the rights conferred act cannot be waived by contract. 38.172; MCL provi- 15.2054. This sion would indicate the teacher act precedence takes over any contract collective bargaining agreement. rights When the under the collective bargaining agreement would operate in such a manner deprive as to a teacher rights of his act, under the tenure the collective Sch Dist Bronson, J. Partial Dissent bargaining rights yield.2 must Since the reinstate- physical program education ment created a plaintiff vacancy qualified, for which Chester was *17 position provi- he was entitled to the under the sions of teacher tenure act. The collective bargaining contract cannot be used as a means of depriving plaintiff rights of his under the statute.
Conclusion affirm would the tenure commission’s second finding manipulation plaintiffs as to Stevens and Chester and order them reinstated. The ten- overstepped authority ure commission pendently determining in inde- qualifications
teacher open positions portion and this of their deci- plaintiffs sion is reversed. Since Stevens and Ches- finding, ter would be reinstated under the second the commission need only decide on remand arbitrarily the school board acted or in determining plaintiff bad faith Rieckhoff open position. was not for the currently employed This does not mean that a could never given right assignment. right only be of first It means that this granted deny only cannot be position ployed if it would a laid-off teacher of the qualified. example, currently for which he is For em given vacancy teacher could be for which the laid-off vacancy teacher was if there is another for which the qualified. assignment right teacher was also The first would when, here, assignment denied in those cases would close the only position qualified. for which the laid-off teacher is