Lawson v. Wayne Community School District , 63 Mich. App. 57 ( 1975 )

63 Mich. App. 57 (1975) 233 N.W.2d 713

LAWSON
v.
WAYNE COMMUNITY SCHOOL DISTRICT

Docket No. 18178.

Michigan Court of Appeals.

Decided July 24, 1975.

Fieger, Golden & Cousens, for plaintiff.

Tinkham, MacDonald, Jahr, & Steffen, for defendant.

Before: V.J. BRENNAN, P.J., and D.E. HOLBROOK, JR. and O'HARA,^[*] JJ.

PER CURIAM.

This appeal arises out of the suspension and subsequent discharge of the plaintiff, Mary Lawson, by the defendant school board after approximately 20 years as a tenured teacher. After hearings before the controlling school board and the teacher tenure commission, and review in circuit court, leave to appeal was granted.

Plaintiff was notified by a letter dated April 3, 1969, of her dismissal retroactive to February 28, 1969, when she had been relieved of her duties by the school principal. The letter included the following conclusory charges as constituting a breach of contract justifying a discharge:

"1. The health, safety and welfare of the students in your classroom is in jeopardy.

"2. The deficiencies in the total instructional program for your second grade class that have been pointed out to you.

"3. A demonstrated lack of cooperation with the principal and others on a number of occasions and agreements as to future action in the classroom have been ignored by you."

The teacher tenure act provides that:

"Discharge or demotion of a teacher on continuing tenure may be made only for reasonable and just cause, and only after such charges, notice, hearing, and determination thereof, as are hereinafter provided." MCLA 38.101; MSA 15.2001. (Emphasis supplied.)

"All charges against a teacher shall be made in writing, signed by the person making the same, and filed with the secretary, clerk or other designated officer of the controlling board. Charges concerning the character of professional services shall be filed at least 60 days before the close of the school year. The controlling board, if it decides to proceed upon such charges, shall furnish the teacher with a written statement of the charges including a statement of the teacher's rights under this article, and shall, at the option of the teacher, provide for a hearing to take place not less than 30 nor more than 45 days after the filing of such charges." MCLA 38.102; MSA 15.2002. (Emphasis supplied.)

The statute is mandatory, requiring written charges as well as the signature of the party asserting the charges. See, e.g., Wright v Port Huron Area School District, 13 Mich. App. 1; 163 NW2d 673 (1968), Biberstine v Port Austin School District No 9, 51 Mich. App. 274; 214 NW2d 729 (1974), lv den, 392 Mich. 766 (1974). General and conclusory allegations are insufficient to provide the notice intended by the statutory provision.

It is undisputed that the above mentioned letter was the sole communication to plaintiff of the charges and was only signed by the secretary of the defendant, not the person making the charges. Plaintiff consistently argued the defendant's noncompliance with the statute and her arguments were properly sustained by the teacher tenure commission and the circuit court.

The real contention at issue is the nature and extent of the relief to be accorded plaintiff. The commission awarded back pay for the remainder of the school year in which plaintiff was dismissed whereas the circuit court modified the award by allowing the amount of salary for the period extending through the appeal to the commission. MCLA 38.103; MSA 15.2003.

Plaintiff prays for reinstatement, claiming she is entitled to such employment. Defendant maintains that throughout these proceedings, plaintiff has represented she would resign due to the atmosphere of animosity between plaintiff and defendant's other employees. The commission and circuit court did not specifically discuss reinstatement although the circuit court noted the plaintiff attorney's recommendation that she resign.

The record of the proceedings below evidence no indication of plaintiff's intent to resign; her actual resignation; or, a proposed date for termination. The only documentation intimating the possibility of a resignation was in the attorney's closing argument before the commission. Plaintiff's counsel stated:

"I am going to make this final observation. I understand the atmosphere that has been created in that school district, without the fault of Mrs. Lawson, and in my opinion I shall advise my client that it would be foolhardy for her to go back to teach there after what has happened. And I shall advise her, I will expect she will follow my advise [sic], she resign from that school system after she has been reinstated and financially made whole.

"We ask at your hands relief as we think we are justly entitled to." (Emphasis supplied.)

This comment alone could not bind the plaintiff. It merely expressed the attorney's opinion and the substance of what he intended to advise plaintiff. Such argument did not compromise plaintiff's position or rights. Henderson v Great Atlantic & Pacific Tea Co, 374 Mich. 142; 132 NW2d 75 (1965).

Plaintiff's trial attorney has submitted an affidavit averring that the plaintiff had approved such a course of action (resignation) prior to his statements. Nevertheless, the record is insufficient to support a determination that plaintiff authorized such a concession during the hearing and to warrant compelling plaintiff's resignation. It is evident that there has been no meeting of the minds of the parties as to the issue of resignation. Wiljamaa v Board of Education of the City of Flint, 50 Mich. App. 688; 213 NW2d 830 (1973).

The hearing before the controlling school board and resulting discharge violated plaintiff's statutory rights under the teacher tenure act. The appropriate remedy is to award back pay, MCLA 38.103; MSA 15.2003, and order reinstatement. Such a back pay award, however, is subject to mitigation. Shiffer v Board of Education of Gibraltar School District, 393 Mich. 190; 224 NW2d 255 (1974).

Affirmed in part; reversed in part; and remanded for a determination of the appropriate amount of back pay.

NOTES

[*] Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.