HB-4625, As Passed House, June 9, 2011

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, 2,

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

38.82, 38.83, 38.83a, 38.91, 38.92, 38.93, and 38.104), sections 1

and 2 of article II and section 2 of article III 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 3b and 3c to article II, section 1a to article III, and

section 1b to article IV; and to repeal acts and parts of acts.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

ARTICLE II

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

of this article, and section 1a of article III, 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(2) 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 Except as otherwise provided in section 1a of

article III, 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. 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~~

House Bill No. 4625 (H-7) as amended June 8, 2011

~~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.

(3) If a teacher who is in a probationary period is rated as

ineffective on 2 annual year-end performance evaluations over a 2-

school-year period under section 1249 of the revised school code,

1976 PA 451, MCL 380.1249, the controlling board shall dismiss the

teacher from his or her employment.

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 and 1 other performance evaluation 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 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 better 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 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 3 full school years of employment in a

probationary period, the teacher shall be considered to have

successfully completed the probationary period.

Sec. 3c. For a teacher who had continuing tenure and was

placed in an additional probationary period under section 1a of

article III, all of the following apply:

(a) The teacher shall not be considered to have successfully

completed the additional probationary period unless the teacher has

been rated as effective or better on his or her 2 most recent

annual year-end performance evaluations under section 1249 of the

revised school code, 1976 PA 451, MCL 380.1249.

(b) If the teacher fails to achieve a rating as effective or

better on 2 consecutive annual year-end performance evaluations

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

380.1249, during his or her additional probationary period, the

controlling board shall dismiss the teacher from his or her

employment.

exceed 5 full school years of employment. If a teacher does not

successfully complete the additional probationary period by the end

of this 5-full-school-year period, the controlling board shall

dismiss the teacher from his or her employment.

(d) A controlling board shall not place the teacher in an

additional probationary period more than once.

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. Subject to sections 1a and 1b of this

article, 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 a teacher employed other than as a classroom teacher,

including but not limited to, a superintendent, assistant

superintendent, principal, department head or director of

curriculum, made with the teacher after the completion of the

probationary period, that the teacher shall not 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

House Bill No. 4625 (H-7) as amended June 8, 2011

tenure in that other capacity, but shall be considered to have been

granted continuing tenure 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. 1a. (1) If a teacher who is on continuing tenure is rated

as ineffective on [2 consecutive annual year-end performance evaluations]

under

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

then the controlling board shall require the teacher to serve an

additional probationary period under article II.

(2) If a teacher who is on continuing tenure is rated as

minimally effective on [2 consecutive annual year-end performance

evaluations]

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

380.1249, then the controlling board may require the teacher to

serve an additional probationary period under article II.

(3) A teacher who is placed in an additional probationary

period under subsection (1) or (2) is a probationary teacher during

that additional probationary period for all purposes under this act

and shall not be considered to be on continuing tenure during that

additional probationary period for any purpose under this act.

Sec. 2. If Except if the teacher is placed in an additional

probationary period under section 1a of this article, if a teacher

on continuing tenure is employed by another controlling board, the

teacher is not subject to another probationary period of more than

2 years beginning with the date of employment , and may at the

option of the controlling board be placed immediately on continuing

tenure. A notice provided under section 3 of article 2 II shall be

given not later than 60 days before the completion of the

probationary period. If a teacher on continuing tenure becomes an

employee of another controlling board as a result of school

district annexation, consolidation or other form of school district

reorganization, the teacher shall be placed on continuing tenure

within 30 days unless the controlling board, by a 2/3 vote on an

individual basis, places the teacher on not more than 2 years'

probation. However, if such a teacher is under contract but not on

continuing tenure with the employing board as of ~~the effective date~~

~~of the amendatory act that added this sentence~~ June 11, 1993, the

teacher is not subject to another probationary period of more than

1 year beginning with the date of employment.

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 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~~

~~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. 1b. If a teacher on continuing tenure holds a particular

teaching certificate, endorsement on the teaching certificate, or

grade level certification included in the teaching certificate at

the time he or she achieves continuing tenure and subsequently

allows to lapse or nullifies that teaching certificate, endorsement

on the teaching certificate, or grade level certification included

in the teaching certificate, the controlling board may dismiss the

teacher from his or her employment if either of the following

circumstances exists:

(a) The controlling board does not have available a teaching

position for which the teacher currently holds a valid teaching

certificate, endorsement on the teaching certificate, or grade

level certification included in the teaching certificate.

(b) The position to which the officials of the controlling

board want to assign the teacher is a position that requires a

valid teaching certificate, endorsement on the teaching

certificate, or grade level certification included in the teaching

certificate that the teacher has allowed to lapse or has nullified.

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 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.

represented by legal counsel.

(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 60 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.