*1 435 SCHOOLSv PLYMOUTH-CANTONCOMMUNITY STATE TENURE COMMISSION 5). (Calendar 1, Argued May No. Decided 83160. Docket No. post, July Rehearing denied 1244. 1990. suspended Plymouth-Canton Community Board Scott School Kurtz, teacher, finding pay that he a tenured without after had regarding corporal policy the of district’s use violated the a punishment in the of student which resulted in restraint force, through injury the of of the student use unreasonable appealed amounting professional Kurtz to a breach of ethics. Commission, claiming procedures the the State Tenure board, appointing attorney by namely, adopted as the the hearing as the same firm the officer who was a member of law board, process, attorney representing him and the denied due finding just support not of the did and reasonable record discipline. imposition taking After for the additional cause it, hearing testimony before the Tenure Commission found presence hearing superinten- and the during violated due dent’s counsel the board’s deliberations provision subsequent of a de novo and that adequate to of the initial was not remove taint decision tribunal, made arid ordered teacher reinstated biased sought Ingham pay. in the The board review Circuit with back Court, Warren, J., affirmed. The Court of Jack W. which P.J., (E. Hood, Kelly, Oppliger, Appeals, J. and F. Michael part), J., part dissenting concurring .in reversed and the case to the Tenure Coinmission an evaluation remanded 88735). (Docket No. the merits of board’s action appeals. joined Brickley, opinion In an Justice Chief Justice Riley Supreme Griffin, Court and Justices Levin held: attorney The fact that the who sat as officer at public pretermination hearing appellant school teacher’s the local board of education was a member of same represented charging party did firm the who References 186,189,192. 2d, Am Schools §§ Jur Index to Annotations under Teachers Instructors. See the Schls v Tenure procedural process. appellant Such a deny due range adjudicatory to which a full is not a full safeguards procedural attaches. including appellant, employees, are public 1. Tenured *2 hearing pretermination the Due Process under to a entitled available, judicial review are administrative and Clause. Where propriety hearing definitively the of a resolve the need not Rather, against provide discharge. initial check it should an grounds decisions, i.e., there are reasonable mistaken whether charges against true and the teacher are to believe that the provides hearing of support proposed notice action. A which the evidence, opportunity explanation charges, and an an of the the pur- adequate respond charges for constitutional to the is adequate case, poses. appellant the received more than In this him, advantage charges against full of and he took notice of the Thus, opportunity testify even to confront witnesses. the and witnesses, right assuming the to confront the existence of right procedural process appellant’s not violated. due was Nor was was not a decisionmaker. 2. The officer pecuniary in the interest there evidence that he had a alone, Standing relationship hearing. the outcome of the party attorneys unlikely the the officer to favor cause imperil represented by professional the his associate or to rights. process of the Court of The decision teacher’s due Tenure Appeals affirmed and the case remanded on the merits. Commission for review de novo Affirmed. dissenting, joined by Justice Archer, Cavanagh, Justice profes- specific financial and stated that and identifiable relationship officer and counsel sional between charging party of biased likelihood raised substantial adopted by making. procedure the school decision teacher, deprived potential loss of confronted with profession, his case livelihood and his assurance by an arbiter who was would be conducted before and decided predisposed improperly to decide influenced not or otherwise against potential have been avoided him. The for bias could selecting or administrative burden without undue financial legal independent attorney to serve as majority procedure, By approving advisor. of the board’s disregards purpose of level invites abuse at the board minimizing unfair treatment the teacher tenure act of tenured teachers local boards. Boyle only Justice in the result reached Justice concurred Cavanagh. (1988) App 331; affirmed.
166 Mich
Brickley,
question
presents
This case
procedural
public
whether
due
is denied a
school
teacher
accused of misconduct when
*3
the teach-
who sits as
officer at
attorney
the local board
pretermination
er’s
firm
of education is a
of the same law
member
in
charging
the
the
attorney representing
party,
ques-
case
this
superintendent.
this
the
We answer
negative
tion in the
and remand this case to
novo of
State Tenure Commission for review de
appeal.
the merits of the teacher’s administrative
full,
A
not a
pretermination
teacher’s
of
range
to which a full
adjudicatory
procedural
safeguards
As stated
attaches.
Bd of
in Cleveland
Supreme
United States
Court
Loudermill,
Ed
v
532, 545-546;
105 S Ct
470 US
(1985),
of
purpose
definitively propriety resolve the provide] against an initial check mistaken [but essentially, a determination of whether decisions— there are reasonable grounds to believe Plymouth-Canton Tenure Schls v Opinion of the Court support and are true employee charges against action.[1] proposed I PROCEEDINGS FACTS AND has been who teacher Kurtz is a tenured Scott Community employed by In November 1976. since School District Middle Central teaching Kurtz was while district of the school School, superintendent him, that he alleging charges against filed written of the use regarding policy the district’s violated eleven-year- of an restraint force in the physical adopted of education The board old student. in proceed and to charges accept resolution ten- of the teacher the provisions with accordance alleged the resolution charges and act.2 The ure corporal punishment use inappropriate cause and just to reasonable Kurtz amounted Kurtz provided The board suspension. sus- resolution charges, the board’s copy him, hearing. a notice pending the hear- hearing, and private requested The board 15, 1982. on December ing commenced Dennis appointing adopted a resolution3 purpose be- marked difference fails to heed the The dissent proceedings, hearings errone- pre- post-termination tween complained analyze ously, if the conduct this case as full, post-termination adjudicatory, place taken at a teacher had proceeding. MCL 38.71 et The resolution seq.; MSA 15.1971 et stated, part: seq. *4 Whereas, or otherwise is an on the Board no one ruling evidentiary of law that other issues on and
trained in
hearing;
may arise at such a
therefore,
Now,
the rules of evidence
that
be it resolved
hearing
set forth
be those
in this
shall
followed
that shall be
Act
through
Procedures
the Administrative
78 of
Sections
for the State
Michigan.
During several Kurtz and regarding incident which testified witnesses gave charges. present At the conclusion rise to proposed parties hearing, submitted both findings of law conclusions fact and deliberations, board’s attended Pollard board. posed questions individual answered members, pare pre- used to notes, he which took draft decision. deci- February 1983, issued its the board On initiated that Kurtz found The board sion.5 and that physical the student with confrontation attempt alternate to use available no made Kurtz means, directing leave the to the student as such telephone using the classroom or classroom request concluded The board assistance. corporal policy on the use of school Kurtz violated punishment profes- to a breach that amounted mem permit of the board examinations voir dire The motion to against charges Kurtz because were filed that criminal indicates bers proceed superintendent these with led of the incident charges matory subject of inflam of a number incident was and that the published newspaper in the commu prejudicial articles opinion Board of Education states that "the nity. Pollard’s written through attorney, its Respondent, to voir dire [sic] allow will permit only However, scope inquiry will be limited members. questions prejudice designed a result of knowl or as to uncover bias present proceedings.” edge gained outside of matter, introductory in its decision the board stated As an during for the sole deliberations board’s was Pollard requested. The providing legal when advice to the board purpose of states: decision offer, opinion requested, did he nor Counsel be drawn from inferences should
judgment
to what
appropriate.
evidence,
discipline
Consistent
would be
what
nor
counsel,
appointing
has reserved
Board
with its resolution
exercising
responsibility
alone. Consistent
to itself
such
that
prior
reviewed the evidence
responsibility,
Board member
each
the deliberations.
Additional was taken at a April held before the Tenure Commission on acknowledged 1983. Pollard that the school district years had been a client of his firm for several and opined, Superintendent as did Hoben, John the board members were aware that he and Al- bertson were members of the same law firm. Al- though charges against Pollard did not draft the provided Kurtz, he a letter of advice to the regarding legal charges ramifications of the pre- and pared overview of the tenure outlining the resolution the role of the adopted by officer which was later board. explained prior that,
Pollard to the board’s de- provided liberations, board members were copies transcripts copies as well as with proposed findings of fact and conclusions of law Schls v Tenure Court During by parties. deliberations, prepared charging party’s notes, took discussed Pollard legal proof, board on and advised burden points conclu- that the Pollard stated which arose. were arrived reached after sions solely by Following delibera- the board’s the board. adopted, prepared, and the board tions, Pollard findings. on the board’s based draft decision testimony of the board of of the members deposition by and submitted taken was education following hearing. Board commission only Kirchgatter that Pollard testified member participated asked when in the board’s discussion clarify point McClen- of law. Board member engaged was because a that Pollard don stated competent carry forth a needed hearing. proper the board He further stated spent testimony through lot went time discussing case, the decision findings consistent with Pollard was drafted made the board and was reviewed the board *7 adopted. that it McClendon testified was strength on the did comment Pollard not suggest credibility witnesses, of or the evidence appropriate discipline. He that "cer- concluded tainly fact and what was the at what was arrival operation purely of a function and not fact was Education, not done Mr. of was the Board that member Thomas testified Pollard.” Board guided the deliberation was while series of board’s questions by Pollard, Pollard formulated participate in the discussion or resolution not did questions. of those its decision on Tenure Commission issued
The that the 8,1984. The commission stated November had met in a dual role not counsel use of approval, unqualified permitted school boards are but that employ in a dual role in one counsel 435 Mich the of Court adjudicative proceedings. The commission con- cluded, however, the because board members were that Pollard and were mem- aware Albertson presence firm, bers of same law Pollard’s during controlling board’s deliberations vio- process. lated due The commission also concluded subsequent provision that the of a de novo adequate was not to remove the taint of initial decision made biased tribunal and that Kurtz paid salary must be reinstated and all lost. The question commission did not reach the whether just the record established cause to reasonable support discipline imposed by the board. petition
The board education filed a for review Ingham Following hearing, Circuit Court. opinion concluding court issued a written that the commission’s decision Mr. "that Kurtz did not receive a fair was not a substantial and material error law.” The court did not address presented sup- whether the evidence to the board ported discipline imposed. Appeals Court reversed and remanded
the case to the Tenure Commission. The Court stated: Ed, In Niemi v Bd of Kearsley App 103 Mich 818, 821-823; (1981), NW2d regularly
who controlling served school represented board’s charging advisor party in proceedings disciplinary deciding fair, before the same board. In practice whether this was inherently un- recognized we the attorney’s dual role of representing charging party advising potential it carried with prejudice, practice but concluded that one principles violated per due se. *8 App 821-822. again We decline to hold the involvement from attorneys single the same firm in admin- Schls v Tenure Opinion of the Court acting in attorney proceeding, istrative with one acting capacity and the other advisory per constitutes a representative capacity, in violation of due se law. Since we find nothing stantiate the circuit court order as particular in record to otherwise sub- this unfairness, Kurtz’ claim of we reverse a matter of Pollard law. decisionmaker, as the control- did not serve as power ling the merits. Kurtz does the retained the to decide the case on bias on allege actual part of an individual board member or on the part of the board as a whole. There is no evidence pecuniary Pollard had a interest in to show that the outcome or is enmeshed other matters involving App the school district. [166 (1988).] 419 NW2d The Court remanded the case to the Tenure Commission for an evaluation of the merits of the Id., pp action taken the board. 339- disciplinary 340. (1988), granted appeal, leave to Mich 905
We now affirm the of the Court of judgment Appeals.
ii
Loudermill,
Court held
supra,
Supreme
In
must
afforded
public employees
tenured
pretermination
hearing.
some sort of
The Court
must
qualities
then considered the
such a
possess, given
availability
comprehensive
postremoval
procedures,
satisfy
order
right
due
employee’s
process.
tenured
public
is entitled to oral
employee
The tenured
him,
charges against
notice of the
or written
evidence,
employer’s
and an
explanation of
opportunity to
story.
To
his side
prior
than this
to termination would
require more
govern-
on the
intrude to an unwarranted extent
*9
need discharge. definitively resolve propriety It should against be initial check mistaken essentially, a determination decisions — of whether there are grounds reasonable to believe charges against employee are true [Id., support proposed pp action. 545-546. omitted; emphasis supplied.] Citations Inc, Brock v Roadway Express, See also 481 US provides public may The teacher tenure act school teachers discharged cause, "only just be or demoted for reasonable and notice, only are hereinafter charges, hearing, thereof, after such and determination as provided.” 38.101; 38.104; MCL MSA 15.2001. MCL except by majority MSA 15.2004 forbids demotion or dismissal vote may appealed of school board members. The decision of the board 38.121; to the State Tenure Commission. MCL MSA 15.2021. If the level, commission reverses the decision at the board the teacher is salary suspension.” entitled to "all lost as a result of such MCL 38.103; MSA 15.2003. encompasses De novo review before the Tenure Commission more than the mere review of the record created before the board. Commis- regulations provide party may "appear sion that a at a person by legal call, examine, may counsel and and cross-examine documentary witnesses and introduce into the record or other evi- AC, regulations evidentiary dence.” 1979 rules and R 38.172. The also address require subpoenas request party. the issuance of on of a AC, 38.173(1). 38.172, R Schls Tenure v op the Court (1987) 252, (emphasizing 263; 107 S Ct 95 L Ed 2d pretermination " against than 'initial check expeditious need be no more ” decisions’ where review is mistaken available) J.). (plurality opinion, Marshall, that the Defendant has not demonstrated engagement mere of Pollard process rights pretermination due un- violated der Loudermill.7 He has not shown that because of *10 participation inadequate he an Pollard’s received explanation against him, of the case or that Pol- evidentiary rulings in fact so in lard’s favor of the provided were skewed (Kurtz)
charging party that he was not present "opportunity an to his side of the p story.” quite Id., 546. It is clear from the record adequate that Kurtz received more than notice of charges ample against provided him and was respond charges. opportunity to to those assuming Furthermore, that the Loudermill re- quirements expanded should be when factual dis- putes provide employee are in involved order to discharge pro- opportunity with "a fair contrary testimony, or duce confront records or even accuser in front (Brennan, p .,” id., J., decisionmaker curring . . con- part part), dissenting in in it cannot advantage be denied that Kurtz full took opportunity testify and to confront witnesses. (Brennan, Roadway Express, supra, p See also concurring part dissenting part). J., in
hi Notwithstanding pretermi- the fact that Kurtz’ hearing comported nation standards set argument process We assume for the sake of the same is due Kurtz, employee temporarily suspended, before an like Mr. or permanently discharged, Express, Roadway like Mr. Loudermill. See J.). Marshall, supra, pp (plurality opinion, 262-265 435 Mich op the Coukt argues Loudermill, that Kurtz forth dissent not of law nevertheless was afforded due "right impartial he to an because was denied his agree decisionmaker.”8 We with the conclusion of Appeals, however, Pollard, the Court of leged al- against to be the "decisionmaker” biased simply Kurtz, was in this not decisionmaker case.
A
presented
testimony
Uncontroverted
to the Ten-
ure Commission shows that Pollard and the board
clearly
judgment
members
the
understood that the
on
charges against
Kurtz was to be made
board alone. Kurtz
not
has
shown that Pollard’s
ability
actions so interfered with Kurtz’
his version of the
facts
board was "not
'capable
judging
particular
controversy
[the]
”9
fairly on the basis of its own circumstances.’
For
example, Kurtz
has
demonstrated that Pol-
rulings
evidentiary
precluded
lard’s
the board
being
fairly adjudicate
from
able to
the matter
(with
attempted
it,
before
without
nor that Pollard
*11
success)
persuade
board to decide
(Likewise,
against Kurtz.
does
contend
requirement
statutory
of the teacher
may only
tenure act that a tenured teacher
be
upon
majority
dismissed or demoted
vote of
by
board members10was in effect violated
Pollard’s
votes.)
manipulation
overt or covert
Before the
vehemently
having
commission, Pollard
denied
expressed
opinion
to board members that
the
substantiated the
evidence adduced at the
8 Post, p 95.
Ed,
353, 376;
Ferrario v
Bd
Escanaba
426 Mich
Ass’n,
(1976).
2308;
426 US
96 S Ct
offered, opportunity of the to set out his version incident charges sum, In from which the proof arose. there is no participated actually that Pollard in the board’s decision.
B urge Mr. Kurtz and the dissent in effect us to treat Pollard as a constructive decisionmaker. In opinion, evidentiary advisory Pollard’s our activities,
standing justify adop- alone, do not tion of this fiction.
According
dissent,
to the
[tjhere
simply
way
no
to determine the extent to
participation
which
officer’s
the
have influenced the
making may
board’s decision
ultimate decision of the board. The deliberations of
controlling
improper
board must be free from
party.
either
influence
Once
participated
attended and
in the
delibera-
board’s
advice,
legal
offering
potential
tions
was
bias
remote nor insubstantial.
neither
independence
Such a threat
decision-making body by
with a direct
charging party
connection to the
fair
does not further
adjudicative procedures,
they
mandated
constitution,
certainly
does little to
statute
11See section i.
*12
justice will not tolerate such a Imputing probability "improper influence” presence, Pollard’s where the record not only to suggest fails such a state of affairs plainly but it, disproves might be on if justified policy grounds (1) one could assume local boards are weak (2) susceptible influence, that Machia- strong vellian officers have some incentive place the actual outcome of the above ethical and professional considerations and are therefore to abuse their likely positions to influ- proceedings ence the for the charg- benefit of the ing party represented professional the officer’s affiliate. (1),
Regarding such an assumption appears odds with the dissent’s own belief that one can expect a school approach board to impartially charges tenure brought which are superin- its tendent, notwithstanding ongoing relationship between school superintendents, boards and notwithstanding probable the board’s prior knowl- edge employment dispute which has not prior been resolved proceedings.13 removal apparent inconsistency lies the dissent’s willing- ness to assume both that board members can remain appropriately detached from the entreaties of the very superintendent chosen the board as its source expertise of educational and information events, about school related while at the same time assuming that the board in this case could not resist the influence of its officer.
Even assuming, however that board members [12] Post, pp 100-101. Commission, Before the Tenure Pollard referred to criminal
charges hearing brought against prior which had been to the tenure proceedings very and stated that the criminal "were much in press locally.” *13 Schls v Tenure Opinion of the Court improper likely to outside to be vulnerable are accept assump- persuaded influence, to we are (2) a officer affiliated tion above—that superintendent representing is likely sinister motives. to have appears had to contend that Pollard
The dissent pecuniary of Kurtz’ interest in the outcome a suggests hearing. that The dissent there exists "potential for the officer’s advice clear being pecuniary interest the board in colored his continuing good school relations between the true, firm.”14 It is as the dissent his attorneys pecuniary observes,15 had a that participating hearing. However, interest this fact does not entail attorneys
that the had proposi- given in a outcome. The financial interest tion that charging needed to aid the with the officer curry party in order favor implies already the board had board itself disposi- intent or communicated to the officer an charging party, tion to rule for the ting thus undercut- again once the dissent’s assertion school approach can matters boards be trusted tenure impartially. compelling addition, not offer In the dissent does might why
reasons "the independent likely adjudi- have been more than an argument cator to advise the board that evidence meet partner presented by his was sufficient to legal or factual burdens.”16 agree Appeals We with the Court of there support the is no evidence in the record to sion that Pollard conclu- pecuniary had interest in the hearing. Kurtz’ outcome of opinion, relationship In our between the to cause the attorneys, standing unlikely alone,
14 Post, p 100.
15 Post, p 99.
16 Post, p 100.
20 Post, p 101. Schls v Tenure op the Court procedures constitutionality fol- affect disagree hearing. Although we Mr. Kurtz’ lowed at opinion dissenting suggestion in the upon hypothesize reason us it incumbent is attorneys,21 we board’s choice for the school for clients it not uncommon observe attorneys who, relations with business continue gained through prior service, the clients’ have and confidence. trust
Furthermore, the fact we are unmoved paid attorneys,22 entity retained and both the same superinten- representing attorneys any two paid by appointed and the board will be dent and school district —whether source—the the same strang- professional attorneys total affiliates or are ers. together several sum, has chained
In the dissent presumptions unjustified the conclu- en route to per participation se worked that Pollard’s sion process. has not iden- The dissent violation of due compelling reason, envision nor can we tified presumed any, why to have been Pollard should be financially the hear- in the outcome of interested explained why ing. adequately Pollard It has not presumed to have been a decisionmaker should be testimony the Tenure Commission when *15 clearly therefore, not, and, he shows that any bias has failed to make case dissent whatsoever, "unconstitutional” bias let alone presumed Indeed, if in this should be case. part likely on the of Messrs. to exist "bias” Albertson, their common it is toward Pollard and Attorneys do not have school district. client —the partners partners; they have clients to serve their clients. to serve their
21Post, p 101.
22Post, p 99. 435 Mich Opinion op the Court
IV years ago, Less four than we considered claim public challenged by a school teacher who procedure employed pretermination at his process grounds. before the school board on due Ed, v Bd of Ferrario Escanaba (1986). NW2d plaintiff Ferrario,
In we determined that the had not established a constitutional violation. Al- though postdated Loudermill, Ferrario we did not mention Loudermill plaintiff’s in our discussion of the process
due claim. notwith- Loudermill standing, suggested plaintiff alleging we that a part might bias on the of the school board estab- process pretermination lish a due violation at the phase proceeding showing of a teacher tenure high intolerably that "the risk of unfairness was probability high or that the of unfairness is too supra, p constitutionally Ferrario, tolerable.” question just high probability 380. The how bias unfairness must rise before a tenure hear- ing before the board will be deemed to have right proce- worked a violation of a teacher’s answered; dural due was not Ferrario did precisely any, circumstances, not define what if support conclusion, could such a because the rec- ord did not substantiate Ferrario’s claim of uncon- stitutional bias.
Because we conclude that Pollard was not a that, decisionmaker in this case for the rea- above, sons set forth the risk of unfairness pretermination hearing Kurtz’ was not of constitu- magnitude, help tional Ferrario is of no to Mr. day Kurtz. We therefore save for another question whether, extent, and to what Loudermill Ferrario are conflict. *16 Schls Tenure v Opinion by Dissenting Cavanagh, J.
V above, For the set forth we reasons conclude deprived property that Kurtz was not est in continued of of his inter- process employment without due law. We affirm decision of Court of Appeals and remand this case to the State Tenure Commission for review the merits de novo. Riley, C.J., JJ., Griffin, and Levin and con- J. Brickley, curred (dissenting). respectfully J. We dis-
Cavanagh, right sent. Kurtz his Defendant was denied to an hearing.1 unbiased decisionmaker at the board i years ago, Less than four this Court examined a challenge today. similar to the one us In Ed, Ferrario v Bd Escanaba 426 Mich (1986), alleged NW2d 195 a teacher the bias presiding pretermina- of the school board over hearing right tion him denied his constitutional process. due The Court in that assumed case that right the constitutional due law right impartial included to an decisionmaker hearing, board articulated test to be determining right used in whether the had been applied Although violated, and that test. the Court specify right did for whether basis Michigan’s Constitution, United States interpret- both, Constitution, it cases relied on ing the federal constitution._ sought hearing, At the Kurtz voir dire of the board both members and the for bias. officer allowed the voir members, dire questioned. present, the board but refused to allow himself to be questioning After each of the board seven members challenged three bias. The members challenges. officer denied these officer’s Kurtz does not contest rulings regarding the board in this Court. members 435 Dissenting Opinion Cavanagh, *17 challenge any by despite
Today, the absence point history parties, case, this in the the at right recognized viability in the to source or the applied adopted there, the test Ferrario the reasoning impliedly majority discards much the in that case. " process majority that 'all the that is finds ” at Kurtz’ due’ under the federal constitution pretermination hearing in Bd is defined Cleveland 1487; 105 S Ct 84 of Ed v US Loudermill (1985), only includes notice of L charges, 2d Ed explanation charging party’s an of the pp opportunity respond. Ante, evidence, to and an majority 78-79, that Louder- 85-86. The concludes requirements in case before mill’s were met this right reaching question to even the Kurtz’ whether Clearly, impartial an was denied.2 decisionmaker opinion, right majority’s an im- to under the partial pretermination decisionmaker act, in to the tenure assumed Ferrario be under part by constitution, not federal is mandated of protections. Because the federal constitution’s explain right majority goes why on to Kurtz’ impartial to under Ferrario has decisionmaker pp may yet denied, ante, 94, it not see be been right prepared recognize to has its source perhaps elsewhere, in or the the state constitution majority’s applica- However, act earlier itself.3 2Ante, pretermi pp ("Notwithstanding 87-88. the fact that Kurtz’ Loudermill, hearing comported with the standards set forth nation the process argues afforded due dissent that Kurtz nevertheless was not 'right impartial to an of law because he was denied ”) decisionmaker.’ argue Although parties to alternate in this case failed basis true, right, majority we note that even if it were contends, that due affords teacher no more than the a tenured right termination, appear prior heard the local board to his to grants act itself him much more than that. tenure act, charges written Under the a teacher is entitled to notice against thirty prepare days him and at least in which a defense Schls v Tenure by Dissenting Opinion Cavanagh, tion of Loudermill belies later it is its claim is right deciding this case whether n of the Part preserved the federal constitution. its con opinion irreconcilable with majority’s question sentence avoid cluding purporting requirements of due federal constitutional whether process under Loudermill require conflict with Ferrario. ments of Court,
Ferrario of this unanimous decision today’s opinion. joined majority author of parties, the majority prompting Without constitu- out undermine the federal now reaches Regardless of whether roots of that case.5 tional *18 full, 102, hearing charges, public presented a before to at § those the local by or affirmation and the he board, right representation at has to which the teacher hearing, given attorney, testimony 104. is under oath an At the § right parties to have the and board proceeding stenographic subpoena A record is witnesses. full of provided parties, of the and written decision made and hoard, hearing, days prepared must within fifteen of which by majority in of the board. be concurred a Id. must " against mistaken not the 'an initial check These are attributes of ” J.). Ante, Rather, proceed p they (Bbickley, 86 describe a decisions.’ ing nature, impar right quasi-judicial in and while the that is plainly provided proceeding not at that is tial decisionmaker statute, right implied. procedural Such elaborate such must be prior wholly unnecessary if safeguards to termination would be hearing, Legislature actually only of the one fair in front intended Commission, discharge after or demotion. The existence Tenure safeguards, a fair stated NW2d therefore, provide legislative clearly intent to indicates before, after, hearing only As we also action. but such Dist, 678, 688; 397 in Tomiak v 426 Mich Hamtramck School discharge (1986), right and a before 770 to notice protection A "primary is the act’s a tenured teacher.” or demotion decisionmaker, however, protection no a biased before all. 4 majority’s mínimums are lower conclusion that due setting post-termination, also pretermination, opposed the conflicts with distinction, reasoning. no such Ferrario’a Ferrario made pre- post-termination relying on cases. impartial right recognition to an 5 This Court’s of a constitutional hearing subject predeprivation novo review to de at a decisionmaker extends heavily, upon relied beyond which the Ferrario Court Ferrario. A case 347; State, Crampton 352 Dep’t 395 Mich 235 NW2d v (1975), predeprivation alleged at a risk of bias involved involving board the school a driver’s Like the license. 435 Mich Dissenting Cavanagh, reasoning by majority Ferrario’s is still shared today, the Court it should not be revisited without adequate briefing argument parties. from the agree completely
We therefore that we should day question "save whether, for another and to extent, what Loudermill and Ferrario are in con- majority flict.” It is unfortunate that the is unable addressing anyway. to resist it
ii Setting aside debate over it whether is stare decisis, constitution, the federal the state constitu- requires tion, or the statute itself that that we apply right in this case Ferrario’s test for the impartial hearing, decisionmaker at the board majority’s we dissent from the conclusion that the right was not denied here. presence
Ferrario set out the test to detect the impermissible hearing. Contrary bias aat majority’s analysis, pp ante, see 88- explicitly rejected proposition 89, we that ac supra, pp tual Ferrario, bias must be shown. 379- recognized Instead, 380. we that in some situations probability may even the risk or of bias be consti tutionally unacceptable. p (citing Cramp Id., Dep’t State, ton v 235 NW2d [1975]). Crampton stated, im Ferrario plied, provide showing pecuniary in some cases interest can *19 imputed
a basis for bias even without a Crampton, supra, pp of actual bias. 351- supra, pp 352; Ferrario, 374, 380. We believe the case before us is such a case._ n act, hearing Crampton Crampton under the tenure was reviewed de novo another applied decisionmaker. Yet the Court predeprivation hearing impartial the constitutional standards for an Supreme decisionmaker the United States Court had enunciated subject for decisionmakers who are not to de novo review. The majority’s opinion sponte Crampton sua undermines as well. Schls v Tenure Dissenting Opinion Cavanagh, Testimony before the Tenure Commission estab- lished that each counsel’s law firm had been em- ployed by many years the local school district for hearing before the case arose. The officer monthly testified that the school district was billed expended by for the time members of the firm and that the district was billed for the total number of partner hours he and his with no the different roles worked on this matter separate billing or breakdown to reflect
performed by each. Because of joint billing procedure, the firm’s the two attor- neys essentially paid by were both retained and employment the local school district. The of both attorneys furthered their financial interests and the financial interests of their firm. law hearing, upon
The officer was called to rule on procedural evidentiary objections motions and raised an with whom he had an on- going professional relationship. financial and After proofs, prepared the close of officer disputed outline factual issues for the school during board to consider the deliberations. He ques- then deliberations, attended the answered legal points, tions on notes, and took which he used to draft the board’s decision.
Although agree majority we with the that review of the record this case demonstrates that profes- .the officer conducted himself in sional manner bias, with no overt we are unable to procedure conclude with confidence that guarantee satisfied of a fair estab- Crampton. procedure lished in Ferrario and The generated appearance probability both and a making unfairness and biased decision inconsistent with the guarantee impartial of an guaran- decisionmaker, whether the basis tee abe constitution or the tenure act itself. majority concludes that *20 by Dissenting Opinion Cavanagh, J. participation his not decisionmaker because
was of the board decision in the deliberations improperly outcome influenced the not have could apparently hearing. based is Its conclusion hearing the officer influence on its belief that have could not on the board’s decisions exerted improper, was, and, it even if the board been able to "resist” that influence. potential view, offi-
In our being by his colored cer’s to board advice good continuing pecuniary relations interest and his firm is obvious. between the school board might instance, have been officer For independent adjudicator likely more than argument or evidence advise presented partner by to meet was sufficient legal or factual burdens. disagree majority’s suggestion
We also with the have resist school board should person for one influence of a affiliated counsel parties during deliberating process. simply way no the extent to There determine participation in the which the board’s decision officer’s
making may have influenced ultimate decision of a board. deliberations controlling improper free from board must be party. influence either Once participated in the delibera- attended and board’s offering legal potential advice, the for bias tions was neither nor remote insubstantial. independence of the deci- Such threat sion-making body by with a direct charging party does further connection to the procedures, adjudicative they fair mandated certainly constitution, does little statute preserve appearance system of fairness.6 Our commented, 6 As the of a recent Yale Law Journal article authors Schls v Tenure Dissenting Opinion by Cavanagh, justice will not tolerate such a risk.7 significant particularly Furthermore, it we find easily the board could have eliminated the *21 threat of if it substantial selected an law firm to serve as its bias this case had
independent attorney from another legal officer and imagine legitimate It is advisor. son difficult to rea- prefer for a local school board to to select represents officer from the firm that one parties independent rather than from an majority suggest source, fails to one. If a attorney local school board decides to hire an to legal serve as officer or advisor in a hear- ing act, under the tenure and we do not intend anything doing opinion discourage in this to boards from attorney independent
so,8 that should be of charging the counsel for the party._ severely judicial process situations more threaten trust in the "[f]ew perception litigant than the decisionmaker & due that a never had a chance because the may special have owed the other side favors.” Redish Marshall, Adjudicatory independence procedural and the values of (1986). process, 95 Yale L J 483 (1972). Schlossberg, 389; 7 Cf. In re 388 Mich 200 219 NW2d Al case, though Schlossberg, this unlike did not come to this Court on appeal Board, from the State Bar Grievance reference to the Rules of appropriate. Professional Conduct is no less 1.10, imputed disqualifi- The comment to MRPC which concerns the attorneys, imputed cation of states "rule of disqualification client gives principle loyalty . . . effect to the of applies practice lawyers it to who in a law firm. Such premise lawyers situations can be considered from the firm of essentially lawyer purposes governing is loyalty one for of the rules premise lawyer vicariously the client or from the that each is bound by obligation loyalty by lawyer of owed each with whom the lawyer is associated.” duty loyalty premise In view of the and the that "a firm of lawyers lawyer,” 1.7, essentially addressing one MRPC conflicts of interest, is also relevant. employed by quasi- Because board counsel was the board in a role, judicial Conduct, Canon 3 of the Code of Judicial which admon- judges perform judicial impartially ishes and the duties of their offices diligently, applies. also 8 380.1253; (authorizing See MCL MSA 15.41253 the board to em ploy represent the school district or board and to district). legal render other service for welfare of the school Mich 76 Dissenting Opinion Cavanagh,
III
the majority’s
disagreement
our
Despite
of impermis-
about
the teacher’s claim
conclusions
bias,
agree
remedy
that can
only
sible
we
is a remand
the State
be afforded
teacher
the merits de
for review of
Tenure Commission
a procedural
on
pay
novo. An award
back
based
the board
commission
error at
suspended
the teacher
determines whether
precedent.
past
cause
be inconsistent with
would
Ed,
Ferrario;
Bd
Harper
Pounder v
Woods
See
Shiffer v
91;
(1977);
NW2d
Schools,
Gibraltar
393 Mich
IV In specific this case identifiable financial Schls v Tenure Dissenting Opinion by Cavanagh, J. professional relationship between charging party officer and for the counsel raised a making. likelihood substantial of biased decision procedure adopted by The prived the school board de- potential teacher, confronted with the profession, loss of his livelihood and his assurance that his case would be conducted before predisposed and decided an arbiter who is not improperly or otherwise influenced to decide against potential him. The for bias in this case could have been avoided without undue finan- by selecting cial or administrative burden pendent attorney an inde- to serve as officer and legal By approving proce- advisor. of the board’s majority dure, the invites abuse at the board level disregards purpose minimizing the act’s unfair treatment of tenured teachers local boards.
Consequently, we would reverse decision of Appeals the Court of and remand the case to the Tenure Commission for a review de novo of the merits. Cavanagh,
Archer, J., concurred with J. Boyle, only J., concurred in the result reached Cavanagh,