HB-4625, As Passed House, June 30, 2011

 

 

 

 

 

 

 

 

 

 

 

 

SENATE SUBSTITUTE FOR

 

HOUSE BILL NO. 4625

 

 

 

 

 

 

 

 

 

 

 

 

     A bill to amend 1937 (Ex Sess) PA 4, entitled

 

"An act relative to continuing tenure of office of certificated

teachers in public educational institutions; to provide for

probationary periods; to regulate discharges or demotions; to

provide for resignations and leaves of absence; to create a state

tenure commission and to prescribe the powers and duties thereof;

and to prescribe penalties for violation of the provisions of this

act,"

 

by amending sections 1, 2, 3, and 3a of article II, sections 1 and

 

3 of article III, and section 4 of article IV (MCL 38.81, 38.82,

 

38.83, 38.83a, 38.91, 38.93, and 38.104), sections 1 and 2 of

 

article II as amended and section 3a of article II and section 3 of

 

article III as added by 1993 PA 59, section 1 of article III as

 

amended by 1996 PA 282, and section 4 of article IV as amended by

 

1993 PA 60, and by adding sections 2a and 3b to article II; and to

 

repeal acts and parts of acts.


House Bill No. 4625 as amended June 30, 2011

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

ARTICLE II

 

     Sec. 1. (1) Subject to subsections (2) and (3) and section

 

<<3B>> of this article, a teacher is in a probationary period during

 

his or her first 4 5 full school years of employment.

 

     (2) A Subject to section <<3b>> of this article, a teacher

 

under contract but not on continuing tenure as of the effective

 

date of the amendatory act that added this subsection 2011

 

amendatory act that amended this subsection is in a probationary

 

period during his or her first 2 4 full school years of employment.

 

     (3) A teacher on continuing tenure as of the effective date of

 

the amendatory act that added this subsection 2011 amendatory act

 

that amended this subsection continues to be on continuing tenure

 

even if the teacher has not served for at least 4 5 full school

 

years of employment.

 

     Sec. 2. A teacher shall not be required to serve more than 1

 

probationary period in any 1 school district or institution.

 

However, upon notice to the tenure commission, the controlling

 

board may grant a third year of probation to a teacher described in

 

section 1(2) of this article.

 

     Sec. 2a. A probationary teacher who is rated as effective or

 

highly effective on his or her most recent annual year-end

 

performance evaluation under section 1249 of the revised school

 

code, 1976 PA 451, MCL 380.1249, is not subject to being displaced

 

by a teacher on continuing tenure solely because the other teacher

 

has continuing tenure.

 

     Sec. 3. (1) At least 60 days before Before the close end of


 

each school year, the controlling board shall provide the

 

probationary teacher with a definite written statement as to

 

whether or not his or her work has been satisfactory. Failure to

 

submit a written statement shall be considered as conclusive

 

evidence that the teacher's work is satisfactory. Any effective.

 

Subject to subsection (2), a probationary teacher or teacher not on

 

continuing contract shall be employed for the ensuing year unless

 

notified in writing at least 60 15 days before the close end of the

 

school year that his or her services will be discontinued.

 

     (2) A teacher who is in a probationary period may be dismissed

 

from his or her employment by the controlling board at any time.

 

     Sec. 3a. (1) If a probationary teacher is employed by a school

 

district for at least 1 full school year, the The controlling board

 

of the a probationary teacher's employing school district shall

 

ensure that the teacher is provided with an individualized

 

development plan developed by appropriate administrative personnel

 

in consultation with the individual teacher and that the teacher is

 

provided with at least an annual year-end performance evaluation

 

each year during the teacher's probationary period. The annual

 

year-end performance evaluation shall be based on , but is not

 

limited to, at least 2 classroom observations held at least 60 days

 

apart, unless a shorter interval between the 2 classroom

 

observations is mutually agreed upon by the teacher and the

 

administration, and shall include at least an assessment of the

 

teacher's progress in meeting the goals of his or her

 

individualized development plan. This subsection does not prevent a

 

collective bargaining agreement between the controlling board and


House Bill No. 4625 as amended June 30, 2011

 

the teacher's bargaining representative under Act No. 336 of the

 

Public Acts of 1947, being sections 423.201 to 423.216 of the

 

Michigan Compiled Laws, from providing for more performance

 

evaluations or classroom observations in addition to those required

 

under this subsection. Except as specifically stated in this

 

subsection, this section does not require a particular method for

 

conducting a performance evaluation or classroom observation or for

 

providing an individualized development plan.The controlling board

 

shall determine the format and number of the classroom observations

 

in consultation with teachers and school administrators. A

 

performance evaluation shall be conducted in accordance with

 

section 1249 of the revised school code, 1976 PA 451, MCL 380.1249.

 

     (2) Failure of a school district to comply with subsection (1)

 

with respect to an individual teacher in a particular school year

 

is conclusive evidence that the teacher's performance for that

 

school year was satisfactory.

 

     Sec. 3b. (1) Except as otherwise provided in subsection (2), a

 

teacher shall not be considered to have successfully completed the

 

probationary period unless the teacher has been rated as effective

 

or highly effective on his or her 3 most recent annual year-end

 

performance evaluations under section 1249 of the revised school

 

code, 1976 PA 451, MCL 380.1249, and has completed <<at least>>

5 full school

 

years of employment in a probationary period.

 

     (2) If a teacher has been rated as highly effective on 3

 

consecutive annual year-end performance evaluations under section

 

1249 of the revised school code, 1976 PA 451, MCL 380.1249, and has

 

completed at least 4 full school years of employment in a


 

probationary period, the teacher shall be considered to have

 

successfully completed the probationary period.

 

                             ARTICLE III

 

     Sec. 1. (1) After the satisfactory completion of the

 

probationary period, a teacher is considered to be on continuing

 

tenure under this act. A teacher on continuing tenure shall be

 

employed continuously by the controlling board under which the

 

probationary period has been completed , and shall not be dismissed

 

or demoted except as specified in this act. Continuing tenure is

 

held only in accordance with this act.

 

     (2) If a teacher employed in a program operated by a

 

consortium of school districts was previously on continuing tenure

 

in a school district that participates in the consortium, the

 

teacher shall be considered to be on continuing tenure only in that

 

school district.

 

     (3) If a teacher employed in a program operated by a

 

consortium of school districts was not previously on continuing

 

tenure in a school district that participates in the consortium and

 

satisfactorily completes the probationary period, the teacher shall

 

be considered to be on continuing tenure only in the school

 

district that is the fiscal agent for the consortium. However, if

 

there is a written agreement between the teacher and another

 

participating school district that provides that the teacher will

 

have continuing tenure in that school district, the teacher shall

 

be considered to be on continuing tenure only in that school

 

district and shall not be considered to be on continuing tenure in

 

the school district that is the fiscal agent for the consortium.


 

     (4) If a teacher employed in a public school academy

 

established under the revised school code, Act No. 451 of the

 

Public Acts of 1976, being sections 380.1 to 380.1852 of the

 

Michigan Compiled Laws 1976 PA 451, MCL 380.1 to 380.1852, is on

 

leave of absence from a school district and was on continuing

 

tenure in the school district at the time he or she began the leave

 

of absence, the teacher retains continuing tenure in that school

 

district during the period he or she is employed in the public

 

school academy.

 

     (5) If a teacher satisfactorily completes the probationary

 

period as an adult education teacher, the teacher shall be

 

considered to be on continuing tenure in the school district only

 

for adult education and shall not by virtue of completing the

 

probationary period as an adult education teacher be considered to

 

be on continuing tenure in the school district for elementary and

 

secondary education.

 

     (6) If a teacher satisfactorily completes the probationary

 

period as an elementary or secondary education teacher, the teacher

 

shall be considered to be on continuing tenure in the school

 

district only for elementary and secondary education and shall not

 

by virtue of completing the probationary period as an elementary or

 

secondary education teacher be considered to be on continuing

 

tenure in the school district for adult education.

 

     (7) If the controlling board provides in a contract of

 

employment of For a teacher employed in a capacity other than as a

 

classroom teacher, including but not limited to, a superintendent,

 

assistant superintendent, principal, department head or director of


 

curriculum, under a contract of employment made with the teacher

 

after the completion of the probationary period, a controlling

 

board shall not provide in the contract of employment that the

 

teacher shall not be will be considered to be granted continuing

 

tenure in that other capacity by virtue of the contract of

 

employment. , then the teacher shall not be granted tenure in that

 

other capacity, but Such a teacher shall be considered to have been

 

granted continuing tenure only as an active classroom teacher in

 

the school district. Upon the termination of such a contract of

 

employment, if the controlling board does not reemploy the teacher

 

under contract in the capacity covered by the contract, the teacher

 

shall be continuously employed by the controlling board as an

 

active classroom teacher. Failure of a controlling board to

 

reemploy a teacher in any such capacity upon the termination of any

 

such contract of employment described in this subsection shall not

 

be considered to be a demotion under this act. The salary in the

 

position to which the teacher is assigned shall be the same as if

 

the teacher had been continuously employed in the newly assigned

 

position. Failure of a controlling board to so provide in any such

 

contract of employment of a teacher in a capacity other than a

 

classroom teacher shall be considered to constitute the employment

 

of the teacher on continuing contract in the other capacity and

 

subject to this act.as an active classroom teacher.

 

     (8) Continuing tenure does not apply to an annual assignment

 

of extra duty for extra pay.

 

     Sec. 3. (1) The controlling board of the school district

 

employing a teacher on continuing tenure shall ensure that the


 

teacher is provided with a an annual year-end performance

 

evaluation at least once every 3 years and, if in accordance with

 

section 1249 of the revised school code, 1976 PA 451, MCL 380.1249.

 

If the teacher has received a less than satisfactory a rating of

 

ineffective or minimally effective on an annual year-end

 

performance evaluation, the school district shall provide the

 

teacher with an individualized development plan developed by

 

appropriate administrative personnel in consultation with the

 

individual teacher. The individualized development plan shall

 

require the teacher to make progress toward individual development

 

goals within a specified time period, not to exceed 180 days. The

 

annual year-end performance evaluation shall be based on , but is

 

not limited to, at least 2 multiple classroom observations

 

conducted during the period covered by the evaluation and , if the

 

teacher has an individualized development plan, shall include, in

 

addition to the factors required under section 1249 of the revised

 

school code, 1976 PA 451, MCL 380.1249, at least an assessment of

 

the teacher's progress in meeting the goals of his or her

 

individualized development plan. This section does not prevent a

 

collective bargaining agreement between the controlling board and

 

the teacher's bargaining representative under Act No. 336 of the

 

Public Acts of 1947, being sections 423.201 to 423.216 of the

 

Michigan Compiled Laws , from providing for more performance

 

evaluations or classroom observations in addition to those required

 

under this section. Except as specifically stated in this

 

subsection, this section does not require a particular method for

 

conducting a performance evaluation or classroom observation or for


House Bill No. 4625 as amended June 30, 2011

 

providing an individualized development plan.The controlling board

 

shall determine the format and number of the classroom observations

 

in consultation with teachers and school administrators.

 

     (2) Failure of a school district to comply with subsection (1)

 

with respect to an individual teacher in a particular 3-year period

 

is conclusive evidence that the teacher's performance for that

 

period was satisfactory.

 

                              ARTICLE IV

 

     Sec. 4. (1) A teacher on continuing tenure may contest the

 

controlling board's decision to proceed upon the charges against

 

the teacher by filing a claim of appeal with the tenure commission

 

and serving a copy of the claim of appeal on the controlling board

 

not later than 20 days after receipt of the controlling board's

 

decision. The controlling board shall file its answer with the

 

tenure commission and serve a copy of the answer on the teacher not

 

later than 10 days after service of the claim of appeal. If the

 

teacher does not contest the controlling board's decision in the

 

time and manner specified in this subsection, the discharge or

 

demotion specified in the charges takes effect and the teacher

 

shall be considered to have waived any right to contest the

 

discharge or demotion under this act.

 

     (2) An administrative law judge described in subsection (3)

 

shall furnish to each party without undue delay a notice of hearing

 

fixing the date and place of the hearing. The hearing date shall

 

not be less than 10 days after the date the notice of hearing is

 

furnished and shall not be more than <<60 45>> days after service of the

 

controlling board's answer unless the tenure commission grants a


 

delay for good cause shown by the teacher or controlling board.

 

     (3) The hearing shall be conducted by an administrative law

 

judge who is an attorney licensed to practice law in this state and

 

is employed by the department of education. An administrative law

 

judge who conducts hearings under this section shall not advise the

 

tenure commission or otherwise participate in a tenure commission

 

review of an administrative law judge's preliminary decision and

 

order under this section.

 

     (4) Except as otherwise provided in this section, the hearing

 

shall be conducted in accordance with chapter 4 of the

 

administrative procedures act of 1969, Act No. 306 of the Public

 

Acts of 1969, being sections 24.271 to 24.287 of the Michigan

 

Compiled Laws, 1969 PA 306, MCL 24.271 to 24.287, and in accordance

 

with rules promulgated by the tenure commission.

 

     (5) The hearing and tenure commission review shall be

 

conducted in accordance with the following:

 

     (a) The hearing shall be public or private at the option of

 

the teacher.

 

     (b) The hearing shall be held at a convenient place in the

 

county in which all or a portion of the school district is located

 

or, if mutually agreed by the parties, at the tenure commission

 

offices in Lansing. The administrative law judge's necessary travel

 

expenses associated with conducting the hearing outside Lansing

 

shall be borne equally by the tenure commission and the controlling

 

board.

 

     (c) Both the teacher and the controlling board may be

 

represented by legal counsel.


House Bill No. 4625 as amended June 30, 2011

 

     (d) Testimony at the hearing shall be on oath or affirmation.

 

     (e) A stenographer shall make a full record of the proceedings

 

of the hearing. The cost of employing the stenographer and of

 

providing the record shall be borne equally by the tenure

 

commission and the controlling board.

 

     (f) The administrative law judge may subpoena witnesses and

 

documentary evidence on his or her own motion, and shall do so at

 

the request of the controlling board or the teacher. If a person

 

refuses to appear and testify in answer to a subpoena issued by the

 

administrative law judge, the party on whose behalf the subpoena

 

was issued may file a petition in the circuit court for the county

 

in which the hearing is held for an order requiring compliance.

 

Failure to obey such an order of the court may be punished by the

 

court as contempt.

 

     (g) The hearing shall be concluded not later than <<90 75>> days

 

after the teacher's claim of appeal was filed with the tenure

 

commission.

 

     (h) The administrative law judge shall make the necessary

 

orders to ensure that the case is submitted for decision not later

 

than 50 days after the hearing is concluded.

 

     (i) Not later than 60 days after submission of the case for

 

decision, the administrative law judge shall serve a preliminary

 

decision and order in writing upon each party or the party's

 

attorney and the tenure commission. The preliminary decision and

 

order shall grant, deny, or modify the discharge or demotion

 

specified in the charges.

 

     (j) Not later than 20 days after service of the preliminary


 

decision and order, a party may file with the tenure commission a

 

statement of exceptions to the preliminary decision and order or to

 

any part of the record or proceedings, including, but not limited

 

to, rulings on motions or objections, along with a written brief in

 

support of the exceptions. The party shall serve a copy of the

 

statement of exceptions and brief upon each of the other parties

 

within the time limit for filing the exceptions and brief. If there

 

are no exceptions timely filed, the preliminary decision and order

 

becomes the tenure commission's final decision and order.

 

     (k) Not later than 10 days after being served with the other

 

party's exceptions and brief, a party may file a statement of

 

cross-exceptions responding to the other party's exceptions or a

 

statement in support of the preliminary decision and order with the

 

tenure commission, along with a written brief in support of the

 

cross-exceptions or of the preliminary decision and order. The

 

party shall serve a copy of the statement of cross-exceptions or of

 

the statement in support of the preliminary decision and order and

 

a copy of the brief on each of the other parties.

 

     (l) A matter that is not included in a statement of exceptions

 

filed under subdivision (j) or in a statement of cross-exceptions

 

filed under subdivision (k) is considered waived and cannot be

 

heard before the tenure commission or on appeal to the court of

 

appeals.

 

     (m) If exceptions are filed, the tenure commission, after

 

review of the record and the exceptions, may adopt, modify, or

 

reverse the preliminary decision and order. The tenure commission

 

shall not hear any additional evidence and its review shall be


 

limited to consideration of the issues raised in the exceptions

 

based solely on the evidence contained in the record from the

 

hearing. The tenure commission shall issue its final decision and

 

order not later than 60 days after the exceptions are filed.

 

     (6) After giving the party notice and an opportunity to

 

comply, the administrative law judge or the tenure commission may

 

dismiss an appeal or deny a discharge or demotion for a party's

 

lack of progress or for a party's repeated failure to comply with

 

the procedures specified in this section or the tenure commission's

 

rules.

 

     (7) A party aggrieved by a final decision and order of the

 

tenure commission may appeal the decision and order to the court of

 

appeals in accordance with the Michigan court rules within 20 days

 

after the date of the decision and order.

 

     Enacting section 1. Section 5 of article IV of 1937 (Ex Sess)

 

PA 4, MCL 38.105, is repealed.

 

     Enacting section 2. This amendatory act does not take effect

 

unless all of the following bills of the 96th Legislature are

 

enacted into law:

 

     (a) House Bill No. 4626.

 

     (b) House Bill No. 4627.

 

     (c) House Bill No. 4628.