HB-5476, As Passed House, February 17, 2004
SUBSTITUTE FOR
HOUSE BILL NO. 5476
(As amended February 17, 2004)
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 1995 PA 289; and to repeal acts and
parts of acts.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
1 Sec. 1535a. (1) Subject to subsection (2), if a person who
2 holds a teaching
certificate that is valid in this state is has
3 been convicted of a crime described in this subsection, [within 5 working days after receiving notice of the conviction] the
4 state board superintendent of public instruction shall
notify
5 the person in writing that his or her teaching certificate may be
6 suspended because of the conviction and of his or her right to a
7 hearing before the state
board superintendent of public
8 instruction. The hearing shall be conducted as a contested case
9 under the administrative procedures act of 1969, 1969 PA 306, MCL
1 24.201 to 24.328. If the person does not avail himself or herself
2 of this right to a
hearing within 30 15 working days after
3 receipt of this written notification, the teaching certificate of
4 that person shall be suspended. If a hearing takes place, the
5 state board superintendent of public instruction shall
complete
6 the proceedings and make a final decision and order within 20
7 working days after receiving the request for a hearing. Subject
8 to subsection (2), the superintendent of public instruction may
9 suspend the person's teaching certificate based upon the issues
10 and evidence presented at the hearing. This subsection applies
11 to any of the following crimes:
12 (a) Any felony.
13 (b) Any of the following misdemeanors:
14 (i) Criminal sexual conduct in the fourth degree or an
15 attempt to commit criminal sexual conduct in the fourth degree.
16 (ii) Child abuse in the third or fourth degree or an attempt
17 to commit child abuse in the third or fourth degree.
18 (iii) A misdemeanor involving cruelty, torture, or indecent
19 exposure involving a child.
20 (iv) A misdemeanor violation of section 7410 of the public
21 health code, Act No.
368 of the Public Acts of 1978, being
22 section 333.7410 of
the Michigan Compiled Laws 1978
PA 368, MCL
23 333.7410.
24 (v) A violation of section 115, 141a, 145a, 335a, or 359 of
25 the Michigan penal code, Act
No. 328 of the Public Acts of 1931,
26 being sections
750.115, 750.141a, 750.145a, and 750.359 of the
27 Michigan Compiled Laws
1931 PA 328, MCL 750.115,
750.141a,
1 750.145a, 750.335a, and 750.359, or a misdemeanor violation of
2 section 81, 81a, or 145c
of Act No. 328 of the Public Acts of
3 1931, being sections
750.81, 750.81a, and 750.145c of the
4 Michigan Compiled Laws
145d of the Michigan penal code,
1931 PA
5 328, MCL 750.81, 750.81a, and 750.145d.
6 (vi) A misdemeanor violation of section 33 of the
Michigan
7 liquor control act,
Act No. 8 of the Public Acts of the Extra
8 Session of 1933, being
section 436.33 of the Michigan Compiled
9 Laws 701 of the Michigan liquor control code of 1998,
1998 PA
10 58, MCL 436.1701.
11 (2) If a person who holds a teaching certificate that is
12 valid in this state is
has been convicted of a crime described
13 in this subsection, the state
board superintendent of public
14 instruction shall find that the public health, safety, or welfare
15 requires emergency action and shall order summary suspension of
16 the person's teaching certificate under section 92 of the
17 administrative procedures
act of 1969, Act No. 306 of the Public
18 Acts of 1969, being
section 24.292 of the Michigan Compiled Laws
19 1969 PA 306, MCL 24.292.
However, if a person convicted of a
20 crime described in
this subsection is incarcerated in a state
21 correctional facility,
the state board may delay ordering the
22 summary suspension
until not later than 10 work days after the
23 person is released
from secure confinement. This
subsection does
24 not limit the state
board's superintendent of public
25 instruction's ability to order summary suspension of a person's
26 teaching certificate for a reason other than described in this
27 subsection. This subsection applies to conviction of any of the
House Bill No. 5476 (H-4) as amended February 17, 2004
1 following crimes:
2 (a) Criminal sexual conduct in any degree, assault with
3 intent to commit criminal sexual conduct, or an attempt to commit
4 criminal sexual conduct in any degree.
5 (b) Felonious assault
on a child[,
child abuse in any degree,
6 or an
attempt to commit child abuse in any degree.]
7 (c) Cruelty, torture, or indecent exposure involving a
8 child.
9 (d) A violation of section 7401(2)(a)(i), 7403(2)(a)(i),
10 7410, or 7416 of the
public health code, Act No. 368 of the
11 Public Acts of 1978,
being sections 333.7401, 333.7403, 333.7410,
12 and 333.7416 of the
Michigan Compiled Laws 1978 PA
368, MCL
13 333.7401, 333.7403, 333.7410, and 333.7416.
14 (e) A violation of section 83, 89, 91, [145a, 145d,] 316, 317, or 529 of
15 the Michigan penal code, Act
No. 328 of the Public Acts of 1931,
16 being sections 750.83,
750.89, 750.91, 750.316, 750.317, and
17 750.529 of the
Michigan Compiled Laws 1931 PA
328, MCL 750.83,
18 750.89, 750.91, [750.145a, 750.145d,] 750.316, 750.317, and 750.529.
19 (f) Any other crime listed in subsection (1), if the
20 superintendent of public instruction determines the public
21 health, safety, or welfare requires emergency action based on the
22 circumstances underlying the conviction.
23 [(3) The superintendent of public instruction shall not take action
24 against a person's teaching certificate under subsection (1) or (2)
25 solely because of a conviction that occurred before the effective date of
26 the amendatory act that added this subsection unless the superintendent
27 of public instruction finds that the conviction is reasonably and
House Bill No. 5476 (H-4) as amended February 17, 2004
1 adversely related to the person's present fitness to serve in an
2 elementary or secondary school in this state.
3 ]
4 (4) (3) After
the completion of a person's sentence, the
5 person may request a
hearing before the state board
6 superintendent of public instruction on reinstatement of his or
7 her teaching certificate. Based upon the issues and evidence
8 presented at the hearing,
the state board superintendent of
9 public instruction may reinstate, continue the suspension of, or
10 permanently revoke the person's teaching certificate. The
11 superintendent of public instruction shall not reinstate a
12 person's teaching certificate unless the superintendent of public
13 instruction finds that the person is currently fit to serve in an
14 elementary or secondary school in this state and that
15 reinstatement of the person's teaching certificate will not
16 adversely affect the health, safety, and welfare of pupils.
17 (5) (4) All
of the following apply to a person described in
18 this section whose conviction is reversed upon final appeal:
19 (a) The person's teaching certificate shall be reinstated
20 upon his or her
notification to the state board superintendent
21 of public instruction of the reversal.
22 (b) If the suspension of the person's teaching certificate
23 under this section was the sole cause of his or her discharge
24 from employment, the person shall be reinstated, upon his or her
25 notification to the appropriate local or intermediate school
26 board of the reversal, with full rights and benefits, to the
27 position he or she would have had if he or she had been
1 continuously employed.
2 (6) (5) The
prosecuting attorney of the county in charge
3 of a case in which a person who holds a teaching certificate was
4 convicted of a crime described in subsection (1) shall notify the
5 state board superintendent of public instruction, and any
6 public school, school district, intermediate school district, or
7 nonpublic school in which the person is employed, of that
8 conviction and of the
sentence imposed on the person. The A
9 prosecuting attorney of
each county shall inquire of each person
10 convicted in the
county in charge of a case in
which a person is
11 convicted of a crime described in subsection (1) shall inquire
12 whether the person holds a teaching certificate.
13 (7) (6) If
the superintendent of a school district or
14 intermediate school district, the chief administrative officer of
15 a nonpublic school, the president of the board of a school
16 district or intermediate school district, or the president of the
17 governing board of a nonpublic school is notified by a
18 prosecuting attorney or learns through an authoritative source
19 that a person who holds a teaching certificate and who is
20 employed at the time by
the school district, intermediate
21 school district, or nonpublic school has been convicted of a
22 crime described in subsection (1), the superintendent, chief
23 administrative officer, or board president shall notify the
24 state board superintendent of public instruction of that
25 conviction.
26 (7) If a person
convicted of a crime described in subsection
27 (2) is incarcerated in
a state correctional facility and the
1 state board delays
summary suspension as described in subsection
2 (2), the state board
shall contact the department of corrections
3 and request to be
notified before the person is released from
4 secure confinement.
Upon receipt of that request, the department
5 of corrections shall
notify the state board at least 30 work days
6 before the person is
released from secure confinement.
7 (8) For the purposes of this section, a certified copy of the
8 court record is conclusive evidence of conviction of a crime
9 described in this section. For the purposes of this section,
10 conviction of a crime
described in this subsection section is
11 considered to be reasonably and adversely related to the ability
12 of the person to serve in an elementary or secondary school and
13 is sufficient grounds for suspension or revocation of the
14 person's teaching certificate.
15 (9) Beginning 3 months after the effective date of the
16 amendatory act that added this subsection, the superintendent of
17 public instruction shall submit to the legislature a quarterly
18 report of all final actions he or she has taken under this
19 section affecting a person's teaching certificate during the
20 preceding quarter. The report shall contain at least all of the
21 following with respect to each person whose teaching certificate
22 has been affected:
23 (a) The person's name, as it appears on the teaching
24 certificate.
25 (b) The school district, intermediate school district, public
26 school academy, or nonpublic school in which the person was
27 employed at the time of the conviction, if any.
House Bill No. 5476 (H-4) as amended February 17, 2004 (1 of 2)
1 (c) The offense for which the person was convicted and the
2 date of the offense.
3 (d) Whether the action taken by the superintendent of public
4 instruction was a summary suspension, suspension due to failure
5 to request a hearing, suspension, revocation, or reinstatement of
6 the teaching certificate.
[(10) Not later than 6 months after the effective date of the amendatory act that added this subsection, 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 the date this section was added to this act until the effective date of the amendatory act that added this subsection. The report shall contain at least all of the information required in the quarterly report under subsection (9) with respect to each person whose teaching certificate was affected during that time period.
7 (11)] (9) This
section does not do any of the following:
8 (a) Prohibit a person who holds a teaching certificate from
9 seeking monetary compensation from a school board or intermediate
10 school board if that right is available under a collective
11 bargaining agreement or another statute.
12 (b) Limit the rights and powers granted to a school district
13 or intermediate school district under a collective bargaining
14 agreement, this act, or another statute to discipline or
15 discharge a person who holds a teaching certificate.
16 (c) Exempt a person who holds a teaching certificate from the
17 operation of section 1539a if the person also holds a school
18 administrator's certificate.
19 [(12)] (10) The state board superintendent
of public
20 instruction may promulgate, as necessary, rules to implement this
21 section pursuant to the administrative procedures act of 1969,
22 Act No. 306 of the
Public Acts of 1969, being sections 24.201 to
23 24.328 of the Michigan
Compiled Laws 1969 PA 306, MCL
24.201 to
24 24.328.
25 [(13)] (11) As used in this section:
26 (a) "Conviction" means a judgment entered by a court upon a
27 plea of guilty, guilty but mentally ill, or nolo contendere or
House Bill No. 5476 (H-4) as amended February 17, 2004
1 upon a jury verdict or court finding that a defendant is guilty
2 or guilty but mentally ill.
3 (b) "State
correctional facility" means a correctional
4 facility under the
jurisdiction of the department of corrections
5 "Prosecuting attorney" means the prosecuting attorney for a
6 county, an assistant prosecuting attorney for a county, the
7 attorney general, the deputy attorney general, an assistant
8 attorney general, a special prosecuting attorney, or, in
9 connection with the prosecution of an ordinance violation, an
10 attorney for the political subdivision that enacted the ordinance
11 upon which the violation is based.
12 Sec. 1539b. (1) Subject to subsection (2), if a person who
13 holds state board
approval is has been convicted of a crime
14 described in this
subsection, [within 5 working days
after receiving notice of the conviction] the state board superintendent of
15 public instruction shall notify the person in writing that his or
16 her state board approval may be suspended because of the
17 conviction and of his or
her right to a hearing before the state
18 board superintendent of public instruction. The
hearing shall
19 be conducted as a contested case under the administrative
20 procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328. If the
21 person does not avail himself or herself of this right to a
22 hearing within 30 15
working days after receipt of this written
23 notification, the person's state board approval shall be
24 suspended. If a hearing
takes place, the state board
25 superintendent of public instruction shall complete the
26 proceedings and make a final decision and order within 20 working
27 days after receiving the request for a hearing. Subject to
1 subsection (2), the superintendent of public instruction may
2 suspend the person's state board approval, based upon the issues
3 and evidence presented at the hearing. This subsection applies
4 to any of the following crimes:
5 (a) Any felony.
6 (b) Any of the following misdemeanors:
7 (i) Criminal sexual conduct in the fourth degree or an
8 attempt to commit criminal sexual conduct in the fourth degree.
9 (ii) Child abuse in the third or fourth degree or an attempt
10 to commit child abuse in the third or fourth degree.
11 (iii) A misdemeanor involving cruelty, torture, or indecent
12 exposure involving a child.
13 (iv) A misdemeanor violation of section 7410 of the public
14 health code, Act No.
368 of the Public Acts of 1978, being
15 section 333.7410 of
the Michigan Compiled Laws 1978
PA 368, MCL
16 333.7410.
17 (v) A violation of section 115, 141a, 145a, 335a, or 359 of
18 the Michigan penal code, Act
No. 328 of the Public Acts of 1931,
19 being sections
750.115, 750.141a, 750.145a, and 750.359 of the
20 Michigan Compiled Laws
1931 PA 328, MCL 750.115,
750.141a,
21 750.145a, 750.335a, and 750.359, or a misdemeanor violation of
22 section 81, 81a, or 145c
of Act No. 328 of the Public Acts of
23 1931, being sections
750.81, 750.81a, and 750.145c of the
24 Michigan Compiled Laws
145d of the Michigan penal code,
1931 PA
25 328, MCL 750.81, 750.81a, and 750.145d.
26 (vi) A misdemeanor violation of section 33 of the
Michigan
27 liquor control act,
Act No. 8 of the Public Acts of the Extra
House Bill No. 5476 (H-4) as amended February 17, 2004
1 Session of 1933, being
section 436.33 of the Michigan Compiled
2 Laws 701 of the Michigan liquor control code of 1998,
1998 PA
3 58, MCL 436.1701.
4 (2) If a person who
holds state board approval is has been
5 convicted of a crime
described in this subsection, the state
6 board superintendent of public instruction shall
find that the
7 public health, safety, or welfare requires emergency action and
8 shall order summary suspension of the person's state board
9 approval under section 92 of the administrative procedures act of
10 1969, Act No. 306 of
the Public Acts of 1969, being
11 section 24.292 of the
Michigan Compiled Laws 1969 PA
306, MCL
12 24.292. However, if
a person convicted of a crime described in
13 this subsection is
incarcerated in a state correctional facility,
14 the state board may
delay ordering the summary suspension until
15 not later than 10 work
days after the person is released from
16 secure confinement. This subsection does not limit the state
17 board's superintendent of public instruction's ability
to order
18 summary suspension of a person's state board approval for a
19 reason other than described in this subsection. This subsection
20 applies to conviction of any of the following crimes:
21 (a) Criminal sexual conduct in any degree, assault with
22 intent to commit criminal sexual conduct, or an attempt to commit
23 criminal sexual conduct in any degree.
24 (b) Felonious assault
on a child[,
child abuse in any degree,
25 or an
attempt to commit child abuse in any degree.]
26 (c) Cruelty, torture, or indecent exposure involving a
27 child.
House Bill No. 5476 (H-4) as amended February 17, 2004
1 (d) A violation of section 7401(2)(a)(i), 7403(2)(a)(i),
2 7410, or 7416 of the
public health code, Act No. 368 of the
3 Public Acts of 1978,
being sections 333.7401, 333.7403, 333.7410,
4 and 333.7416 of the
Michigan Compiled Laws 1978 PA
368, MCL
5 333.7401, 333.7403, 333.7410, and 333.7416.
6 (e) A violation of section 83, 89, 91, [145a, 145d,] 316, 317, or 529 of
7 the Michigan penal code, Act
No. 328 of the Public Acts of 1931,
8 being sections 750.83,
750.89, 750.91, 750.316, 750.317, and
9 750.529 of the
Michigan Compiled Laws 1931 PA
328, MCL 750.83,
10 750.89, 750.91, [750.145a, 750.145d,] 750.316, 750.317, and 750.529.
11 (f) Any other crime listed in subsection (1), if the
12 superintendent of public instruction determines the public
13 health, safety, or welfare requires emergency action based on the
14 circumstances underlying the conviction.
15 [(3) The superintendent of public instruction shall not take action
16 against a person's state board approval under subsection (1) or (2)
17 solely because of a conviction that occurred before the effective date of
18 the amendatory act that added this subsection unless the superintendent
19 of public instruction finds that the conviction is reasonably and
20 adversely related to the person's present fitness to serve in an
21 elementary or secondary school in this state.
22 ]
23 (4) (3) After
the completion of the person's sentence, the
24 person may request a
hearing before the state board
25 superintendent of public instruction on reinstatement of his or
26 her state board approval. Based upon the issues and evidence
27 presented at the hearing,
the state board superintendent of
1 public instruction may reinstate, continue the suspension of, or
2 permanently revoke the person's state board approval. The
3 superintendent of public instruction shall not reinstate a
4 person's state board approval unless the superintendent of public
5 instruction finds that the person is currently fit to serve in an
6 elementary or secondary school in this state and that
7 reinstatement of the person's state board approval will not
8 adversely affect the health, safety, and welfare of pupils.
9 (5) (4) All
of the following apply to a person described
10 in this section whose conviction is reversed upon final appeal:
11 (a) The person's state board approval shall be reinstated
12 upon his or her
notification to the state board superintendent
13 of public instruction of the reversal.
14 (b) If the suspension of the state board approval was the
15 sole cause of his or her discharge from employment, the person
16 shall be reinstated upon his or her notification to the
17 appropriate local or intermediate school board of the reversal,
18 with full rights and benefits, to the position he or she would
19 have had if he or she had been continuously employed.
20 (6) (5) The
prosecuting attorney of the county in charge
21 of a case in which a person who holds state board approval was
22 convicted of a crime described in subsection (1) shall notify the
23 state board superintendent of public instruction, and any
24 public school, school district, intermediate school district, or
25 nonpublic school in which the person is employed, of that
26 conviction and of the sentence
imposed on the person. The A
27 prosecuting attorney of
each county shall inquire of each person
1 convicted in the
county in charge of a case in
which a person is
2 convicted of a crime described in subsection (1) shall inquire
3 whether the person holds
state board approval. The state board
4 superintendent of public instruction shall make available to
5 prosecuting attorneys a list of school occupations that commonly
6 require state board approval.
7 (7) (6) If
the superintendent of a school district or
8 intermediate school district, the chief administrative officer of
9 a nonpublic school, the president of the board of a school
10 district or intermediate school district, or the president of the
11 governing board of a nonpublic school is notified by a
12 prosecuting attorney or learns through an authoritative source
13 that a person who holds state board approval and who is employed
14 at the time by the school district, intermediate school
15 district, or nonpublic school has been convicted of a crime
16 described in subsection (1), the superintendent, chief
17 administrative officer, or board president shall notify the
18 state board superintendent of public instruction of that
19 conviction.
20 (7) If a person
convicted of a crime described in
21 subsection (2) is
incarcerated in a state correctional facility
22 and the state board
delays summary suspension as described in
23 subsection (2), the
state board shall contact the department of
24 corrections and
request to be notified before the person is
25 released from secure
confinement. Upon receipt of that request,
26 the department of
corrections shall notify the state board at
27 least 30 work days
before the person is released from secure
1 confinement.
2 (8) For the purposes of this section, a certified copy of
3 the court record is conclusive evidence of conviction of a crime
4 described in this section. For the purposes of this section,
5 conviction of a crime
described in this subsection section is
6 considered to be reasonably and adversely related to the ability
7 of the person to serve in an elementary or secondary school and
8 is sufficient grounds for suspension or revocation of the
9 person's state board approval.
10 (9) Beginning 3 months after the effective date of the
11 amendatory act that added this subsection, the superintendent of
12 public instruction shall submit to the legislature a quarterly
13 report of all final actions he or she has taken under this
14 section affecting a person's state board approval during the
15 preceding quarter. The report shall contain at least all of the
16 following with respect to each person whose state board approval
17 has been affected:
18 (a) The person's name, as it appears on the state board
19 approval.
20 (b) The school district, intermediate school district,
21 public school academy, or nonpublic school in which the person
22 was employed at the time of the conviction, if any.
23 (c) The offense for which the person was convicted and the
24 date of the offense.
25 (d) Whether the action taken by the superintendent of public
26 instruction was a summary suspension, suspension due to failure
27 to request a hearing, suspension, revocation, or reinstatement of
House Bill No. 5476 (H-4) as amended February 17, 2004 (1 of 2)
1 the state board approval.
[(10) Not later than 6 months after the effective date of the amendatory act that added this subsection, 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 the date this section was added to this act until the effective date of the amendatory act that added this subsection. The report shall contain at least all of the information required in the quarterly report under subsection (9) with respect to each person whose state board approval was affected during that time period.
2 (11)] (9)
This section does not do any of the following:
3 (a) Prohibit a person who holds state board approval from
4 seeking monetary compensation from a school board or intermediate
5 school board if that right is available under a collective
6 bargaining agreement or another statute.
7 (b) Limit the rights and powers granted to a school district
8 or intermediate school district under a collective bargaining
9 agreement, this act, or another statute to discipline or
10 discharge a person who holds state board approval.
11 (c) Exempt a person who holds state board approval from the
12 operation of section 1535a or 1539a, or both, if the person holds
13 a certificate subject to 1 or both of those sections.
14 (d) Limit the ability of a state licensing body to take
15 action against a person's license or registration for the same
16 conviction.
17 [(12)] (10) The state board superintendent
of public
18 instruction may promulgate, as necessary, rules to implement this
19 section pursuant to the administrative procedures act of 1969,
20 Act No. 306 of the
Public Acts of 1969, being sections 24.201 to
21 24.328 of the Michigan
Compiled Laws 1969 PA 306, MCL
24.201 to
22 24.328.
23 [(13)] (11) As used in this section:
24 (a) "Conviction" means a judgment entered by a court upon a
25 plea of guilty, guilty but mentally ill, or nolo contendere or
26 upon a jury verdict or court finding that a defendant is guilty
27 or guilty but mentally ill.
1 (b) "Prosecuting attorney" means the prosecuting attorney
2 for a county, an assistant prosecuting attorney for a county, the
3 attorney general, the deputy attorney general, an assistant
4 attorney general, a special prosecuting attorney, or, in
5 connection with the prosecution of an ordinance violation, an
6 attorney for the political subdivision that enacted the ordinance
7 upon which the violation is based.
8 (c) (b) "State
board approval" means a license,
9 certificate, endorsement, permit, approval, or other evidence of
10 qualifications to hold a particular position in a school district
11 or intermediate school district or in a nonpublic school, other
12 than a teacher's
certificate subject to section 1535a, or a
13 school administrator's
certificate subject to section 1539a,
14 that is issued to a person by the state board or the
15 superintendent of public instruction under this act or a rule
16 promulgated under this act.
17 (c) "State
correctional facility" means a correctional
18 facility under the
jurisdiction of the department of
19 corrections.
20 Enacting section 1. Section 1539a of the revised school
21 code, 1976 PA 451, MCL 380.1539a, is repealed.