Amato v. Oxford Area Community School District No. 7 , 70 Mich. App. 305 ( 1976 )

Beasley, J.

In this case plaintiff teacher served two years as a probationary teacher.

On March 25, 1975, nearing the end of her second year, the school board, with plaintiff present, considered a recommendation from the administrators to grant her a third year of probation.

On April 8, 1975, the school board granted plaintiff a third year of probation, as follows:

"It is hereby resolved that Nancy Amato be granted third year probation for the 1975-76 school year. Further, the Board of Education hereby authorized Clyde C. Fischer, Assistant Superintendent, to notify the Michigan Teacher Tenure Commission and the teacher accordingly. * * * Carried unanimously.”

In accordance with the statute, the school board notified the state tenure commission.

On April 28, 1975, claiming defendant school district had neglected to give definite written notice as to whether or not her work had been satisfactory, plaintiff sought a writ of mandamus to establish her tenure status. She said the statute provided that failure to submit a written statement to a probationary teacher at least 60 days before close of the school year was conclusive evidence that the teacher’s work was satisfactory. The trial court agreed with plaintiff and awarded a summary judgment, the effect of which was to confer tenure upon plaintiff.

Defendant school district appealed, asserting that to require a school board to give written notice to a probationary teacher that her work was unsatisfactory as a condition precedent to a third year probation is an unreasonable and unwise construction of the statute.

The issue here is entirely one of statutory construction.

The relevant portions of the statute provide as follows:

"Section 2. No teacher shall be required to serve more than one probationary period in any one school district or institution: Provided, That a third year of probation may be granted by the controlling board upon notice to the tenure commission.” ¹

"Section 3. At least 60 days before the close of each school year the controlling board shall provide the probationary teacher with a definite written statement as to whether or not his work has been satisfactory. Failure to submit a written statement shall be considered as conclusive evidence that the teacher’s work is satisfactory. Any probationary teacher or teacher not on continuing contract shall be employed for the ensuing year unless notified in writing at least 60 days before the close of the school year that his services will be discontinued.” ²

These sections must be considered together. Grant of a third year’s probation is not a substitute for the written notice provided in § 3. If the school board desired to grant a third year of probation, the statute required written notice to plaintiff that her work had not been satisfactory; otherwise, she was entitled to tenure.

In this case no such written notice was given plaintiff. Consequently, she became entitled to tenure.

The practice of having an administrator advise the teacher in private conference as to whether her work is satisfactory may be a wiser policy, but that is a question for the Legislature rather than this Court. In this case, the trial judge has indicated he believes the defendant "chose not to hurt the feelings of the Plaintiff”. While this may have been comméndable, it was not in compliance with the statute.

This opinion does not decide whether or not a school district and a teacher’s union may resolve this question in a collective bargaining agreement in a manner contrary to this interpretation of the statute, as that question was not here raised.

Affirmed. No costs since this is a public question of first impression.

M. F. Cavanagh, J., concurred.

1 MCLA 38.82; MSA 15.1982.

2 MCLA 38.83; MSA 15.1983.