Tecumseh Public Schools v. Dept of Education ( 2022 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
TECUMSEH PUBLIC SCHOOLS, UNPUBLISHED
August 25, 2022
Appellant,
v No. 356292
Ingham Circuit Court
DEPARTMENT OF EDUCATION and LC No. 19-000939-AA
SUPERINTENDENT OF PUBLIC INSTRUCTION,
Appellees.
Before: SWARTZLE, P.J., and RONAYNE KRAUSE and GARRETT, JJ.
PER CURIAM.
Plaintiff, Tecumseh Public Schools (the District), appeals by leave granted the circuit
court’s order dismissing its administrative appeal from the final decision of defendant
Superintendent of Public Instruction, which opined that defendant Department of Education (the
Department) properly withheld school aid on the basis that the District improperly employed a
principal. We reverse and remand.
I. FACTUAL BACKGROUND
In 1997, the District hired Carl Lewandowski as a district principal. Lewandowski served
in that position until he resigned in 2019. At the time Lewandowski was hired as a district
principal, MCL 380.1246 provided:
(1) A school district, public school academy, or intermediate school district
shall not employ a person as a superintendent, principal, assistant principal, or other
person whose primary responsibility is administering instructional programs or as
a chief business official unless the person has completed the continuing education
requirements prescribed by state board rule under subsection (2).
(2) The state board shall promulgate rules establishing continuing
education requirements as a condition for continued employment for persons
employed in positions described in subsection (1). The rules shall prescribe a
-1-
minimum amount of continuing education to be completed within a 5-year period.
[1995 PA 289, effective July 1, 1996.]
The above statute was amended, in relevant part, by 2009 PA 205, effective January 4, 2010, to
read as follows:
(1) A school district, public school academy, or intermediate school district
shall not continue to employ a person as a superintendent, principal, assistant
principal, or other person whose primary responsibility is administering
instructional programs or as a chief business official unless the person meets 1 or
more of the following requirements, as applicable:
(a) For a superintendent, principal, assistant principal, or other person
whose primary responsibility is administering instructional programs, or a chief
business official, who was employed as a school administrator in this state on or
before the effective date of the amendatory act that added this subdivision, has
completed the continuing education requirements prescribed by rule under
subsection (2).
(b) Subject to [provisions not relevant to this appeal], for a superintendent,
principal, assistant principal, or other person whose primary responsibility is
administering instructional programs and who is initially employed as a school
administrator in this state after the effective date of the amendatory act that added
this subdivision, possesses a valid Michigan school administrator's certificate
issued under section 1536.
(2) The superintendent of public instruction shall promulgate rules
establishing continuing education requirements as a condition for continued
employment for persons described in subsection (1)(a). The rules shall prescribe a
minimum amount of continuing education that shall be completed within 5 years
after initial employment and shall be completed each subsequent 5-year period to
meet the requirements of subsection (1)(a) for continued employment.
Furthermore, MCL 388.1763 provides, in relevant part, that a school district may not employ a
principal who does not meet the requirements of MCL 380.1246; and it provides that if a school
district does so, the district’s school aid will be reduced by the amount of money paid to such a
principal.
Meanwhile, the Department had originally promulgated Administrative Rule 380.102 in
1988. At the time Lewandowski was hired, it was entitled “Persons eligible to hold certificates,”
and it provided:
Rule 2. A person who has completed a state-board approved administrator
preparation program may be issued an administrator’s certificate and basic
endorsement as determined by the state board in any of the following:
(a) A central office administrator.
-2-
(b) A principal.
(c) An assistant principal. [2008 MR 9, effective May 9, 2008.]
Following the enactment of 2009 PA 205, Rule 380.102 was re-titled “Persons eligible to hold
administrator certificates,” and it was amended to read as follows:
Rule 2. A person who has completed a state-board approved administrator
preparation program or an approved administrator alternate route program may be
issued an administrator’s certificate and basic endorsement as determined by the
superintendent of public instruction under section 1536 of 1976 PA 451, MCL
380.1536 in any of the following:
(a) A central office administrator.
(b) A principal.
(c) An assistant principal. [2012 MR 6, effective March 19, 2012.]
In 2011, the Department issued guidance stating, in relevant part, that “[i]f employed as a school
administrator before January 4, 2010, and the person has completed the continuing education
requirements, he or she is not required to hold administrator certification.” Michigan Department
of Education Clarification of Administrator Certification for Assistant Superintendents, October
31, 2011.1
However, a few years later, the Department amended Rule 380.102 further, re-titling it
“Certificate and permit requirements for school administrators,” and amending it to read as
follows:
Rule 2. (1) The following school administrator certificates may be issued
under these rules:
(a) School administrator (1246(1)(a)) certificate.
(b) School administrator (1246(1)(b)) certificate.
(2) An individual who was employed by a school district in this state on or
before January 4, 2010, as a superintendent, principal, assistant principal, other
person whose primary responsibility was administering instructional programs, or
chief business official must hold a school administrator (1246(1)(a)) certificate
under R 380.103.
(3) An individual who was initially employed by a school district in this
state after January 4, 2010, as a superintendent, principal, assistant principal, or
other person whose primary responsibility is administering instructional programs
1
See < https://www.msbo.org/sites/default/files/clarification_memo.pdf >.
-3-
must hold a valid Michigan school administrator (1246(1)(b)) certificate with the
appropriate PK-12 building or central office endorsement under R 380.104, R
380.105, or R 380.106.
(4) A school district that employs a superintendent, principal, assistant
principal, or other person whose primary responsibility is administering
instructional programs who does not hold a valid school administrator certificate
with the appropriate endorsement under these rules must obtain a full-year school
administrator substitute permit under R 380.116. [2017 MR 21, effective
November 15, 2017.2]
As of the 2017 amendments, Rule 380.103 provided, in relevant part, that the superintendent
shall issue a school administrator (1246(1)(a)) certificate to an individual who was
employed by a school district in this state on or before January 4, 2010, as a . . .
assistant principal . . . if, during the 5-year period immediately preceding the
issuance of the certificate, the individual completed any combination of education-
related professional learning hours, as defined in R 380.101, totaling 150 hours.
[2017 MR 21, effective November 15, 2017.3]
A significant issue in this matter is whether the 2017 version of Rule 380.102 exceeded the
Department’s rulemaking authority.
On March 8, 2018, the Department issued a memorandum reciting, in relevant part, that
pursuant to the current version of MCL 380.1246, the Legislature had “recognized three categories
of school administrators for certification purposes,” the first of which was individuals employed
prior to January 4, 2010. Those individuals were required to “complete continuing education
requirements.” It stated that the Department had amended Rule 380.102 to describe a “new
‘1246(1)(a) certificate’ that is given to individuals who are in the first” category. The memo
explained that “[i]ssuance of a ‘1246(1)(a) certificate’ enables the Department of Education to
track the statutorily required continuing education hours of individuals who are in the first
category.” Michigan Department of Education Memorandum re School Administrator
Certification and Chief Business Officials, March 8, 2018.4 On June 28, 2018, the Department
issued another memorandum expressly stating that “[b]eginning September 1, 2018, all School
Administrators must have a Michigan School Administrator Certificate or a Michigan School
Administrator Permit before employment.” It further explained that administrators who were
“ ‘Grand-Parented’ Under MCL 380.1246(2)” were required to “obtain an Experience-Based
2
In 2019, Rule 380.102 was further amended in largely non-substantive ways, and the 2019
version is not pertinent to this appeal.
3
In 2019, Rule 380.103 was likewise further amended in ways not at issue in this appeal.
4
See < https://www.michigan.gov/documents/mde/SAC_SBO_616769_7.pdf >.
-4-
School Administrator Certificate prior to placement or to continue employment.” Michigan
Department of Education Memorandum re School Administrator Certification, June 28, 2018.5
On January 14, 2019, Lewandowski submitted an application to the Department for a
school administrator certificate. However, part of the “Administrator Experience-Based
Verification” form required Lewandowski’s employer to verify the date of his initial employment,
and that verification was not provided until March 1, 2019. The Department issued Lewandowski
a School Administrator Certificate on April 8, 2019. Nevertheless, on April 22, 2019, the
Department informed the District’s Director that the District’s employment of Lewandowski
violated MCL 388.1763, because “Lewandowski worked as a School Principal in the academic
year 2018-19 without a valid certificate or permit as required by MCL 380.1246.” The Department
stated that Lewandowski was “required to hold a valid Michigan School Administrator Certificate
or valid Michigan School Administrator Permit as of September 1, 2018.” Accordingly, the
Department deducted $67,767.79 from the District’s state aid, representing Lewandowski’s salary
for the period during which Lewandowski had been employed but out of compliance.
The District responded by seeking review of the deduction. The District generally argued
that Lewandowski could not be required to hold an administrator certificate, because he had been
continuously employed as a principal since 1997 and therefore was only required to meet
continuing-education requirements. The District further argued that the Department had
improperly promulgated rules in conflict with MCL 380.1246. The District contended that the
state aid had been impermissibly deducted because Lewandowski lacked a certificate required by
an administrative rule, rather than because he did not meet the continuing-education requirements
required by statute. The Superintendent rejected the District’s challenges, reasoning that because
administrative rules have the force of law, and the Department was bound by its own rules, any
challenge to the validity of Rule 380.102 must be made in the circuit court. Therefore,
Lewandowski was required to hold a school administrator certificate, and because “he did not
submit the documents necessary to support his application until April 2019,” he did not hold a
certificate for much of the 2018-2019 school year, and the state aid penalty was appropriate. The
Superintendent upheld the assessment, although he reduced the amount to correct an error in the
original deduction’s arithmetic.
The District appealed the Superintendent’s administrative decision to the circuit court. The
circuit court, after reviewing the background facts, generally concluded that the Department had
not exceeded its rulemaking authority by promulgating a rule to set forth how the continuing
education requirements required by statute should be met. It concluded that “[b]ecause
Lewandowski did not complete 150 hours of continuing education in the 5 years prior, the plain
language of MCL 380.1246(1) precludes his employment.” It further explained that
“Lewandowski did not meet the requirements of MCL 380.1246 because he failed to offer any
documentation of the 150 hours of continuing education he claims to have completed,” so the
Department correctly found the District in violation of MCL 388.1763. The circuit court found
Rule 380.102 was not arbitrary and capricious, and it also concluded that the Superintendent had
5
See < https://www.michigan.gov/documents/mde/School_Admin_Cert_626501_7.pdf >.
-5-
properly entertained the District’s arguments even if the Superintendent did not explicitly address
all of them. The District applied for leave to appeal to this Court, and this Court granted leave to
appeal.6
II. STANDARDS OF REVIEW
“When reviewing a lower court’s review of agency action this Court must determine
whether the lower court applied correct legal principles and whether it misapprehended or grossly
misapplied the substantial evidence test to the agency’s factual findings.” Henderson v Civil Serv
Comm, 321 Mich App 25, 37; 913 NW2d 665 (2017) (quotation and alteration omitted). When
determining whether an agency’s decision was authorized by law, this Court reviews de novo
issues of statutory interpretation. SMK, LLC v Dep’t of Treasury, 298 Mich App 302, 304-305;
826 NW2d 186 (2012). Administrative rules are interpreted in the same manner as are statutes.
Soap & Detergent Ass’n v Natural Resources Comm, 415 Mich 728, 756-757; 330 NW2d 346
(1982). Unambiguous language must simply be applied as it is written. Veenstra v Washtenaw
Country Club, 466 Mich 155, 159-160; 645 NW2d 643 (2002). Statutes must be read as a whole,
individual words or phrases must be considered in context, and no part of the statute should be
rendered surplusage or nugatory. Michigan Properties, LLC v Meridian Twp, 491 Mich 518, 528;
817 NW2d 548 (2012).
III. CONTINUING EDUCATION REQUIREMENTS
We note as an initial matter that the trial court clearly erred in holding that Lewandowski
failed to provide evidence that he satisfied the requirement of completing 150 hours of continuing
education. An agency may promulgate rules prescribing procedures for contested cases. MCL
24.233(3). Administrative rules have “the force and effect of law.” Detroit Base Coalition for
Human Rights of Handicapped v Dep’t of Social Servs, 431 Mich 172, 177; 428 NW2d 335 (1988).
Pursuant to the Superintendent’s rules of procedure, Rule 349.291(5) provides,
When a hearing is requested, the party requesting the hearing shall submit in writing
a fair and accurate statement of the facts to the superintendent of public instruction
and all interested parties. The facts shall be accepted as evidence unless a written
answer is filed denying said facts and stating new facts relied upon with the
superintendent of public instruction and all interested parties.
In its statement to the Superintendent, the District stated that Lewandowski had met the
continuing-education requirements; rather, his application for a certificate was merely tardy. The
Department never disputed the District’s statement in this regard. Furthermore, the Department
issued a certificate to Lewandowski promptly after the application was completed, so presumably
the Department was satisfied that Lewandowski completed the requisite number of hours of
continuing education. Accordingly, the Superintendent and the circuit court were both required to
6
Tecumseh Public Schools v Dep’t of Education, unpublished order of the Court of Appeals,
entered May 27, 2021 (Docket No. 356292).
-6-
accept as true the undisputed (and necessarily inferable) fact that Lewandowski had actually
satisfied the statutory continuing-education requirements.
IV. CERTIFICATE REQUIREMENTS
The Department correctly observes that MCL 380.1246 creates multiple classes of school
administrators, one of which is “grandfathered” under MCL 380.1246(1)(a), and another of which
is required by MCL 380.1246(1)(b) to obtain an administrator certificate issued pursuant to MCL
380.1536. The Department’s position is, essentially, that Rule 380.102 does not contravene the
statute, because it does not require “grandfathered” school administrators to obtain the specific
kind of certificate that would be issued under MCL 380.1536. Rather, the Department’s
“Experience-Based Administrator Certificate” is merely a vehicle for keeping track of the
continuing-education requirements that are imposed by MCL 380.1246(1)(a).
In principle, it is unlikely to be arbitrary and capricious for the Department to promulgate
some mechanism for keeping track of whether a school administrator has completed the statutorily-
required continuing-education requirements. However, if an administrator has completed the
continuing-education requirements, then by statute, the administrator is in compliance with MCL
380.1246(1)(a). In turn, a district is not in violation of MCL 388.1763 for employing an
administrator who has actually completed the continuing-education requirements. Importantly,
the issuance of Lewandowski’s certificate in this matter was clearly premised upon
bureaucratically verifying the date of his employment, not upon whether he had complied with the
continuing-education requirements. The plain language of the statute establishes that the propriety
of a “grandfathered” administrator’s employment must turn on actual completion of an amount of
continuing education, no more. In other words, irrespective of when the Department formally
verified that Lewandowski completed the requisite number of hours of continuing education,
Lewandowski was qualified under the statute to serve as a school administrator immediately upon
his actual completion of those hours of continuing education.
To reiterate, we are not troubled by the Department establishing a process for verifying
completion of continuing-education requirements. Furthermore, it does not matter whether the
Department calls it a “certificate” or something else, because we are concerned with the substance
of that process rather than its label. See In re Traub Estate, 354 Mich 263, 278-279; 92 NW2d
480 (1958); Wilcox v Moore, 354 Mich 499, 504; 93 NW2d 288 (1958). What the Department
cannot do is conflate the formalities of verification with the administrator’s actual completion of
the requisite hours of continuing education. That is precisely what the Department did in this
matter: contrary to the plain language of the applicable statutes, the Department deemed
Lewandowski in violation of MCL 380.1246 and the District in violation of MCL 388.1763 for a
tardy completion of the verification process rather than for any actual failure by Lewandowski to
satisfy his statutory burdens. The Department acted in violation of the law.
V. RULEMAKING AUTHORITY
The above discussion establishes that plaintiff is entitled to reversal of the state aid
deduction penalty pursuant to the Department’s conduct. However, without further discussion, it
may generate confusion about whether Rules 380.102 and 380.103 are, considered in the abstract,
proper. “An agency’s legislative rule may be determined to be invalid when the rule goes beyond
-7-
the parameters of the enabling statute, when the rule does not comply with the legislative intent
underlying the enabling statute, or when the rule is arbitrary or capricious.” Brightmoore Gardens,
LLC v Marijuana Regulatory Agency, 337 Mich App 149, 161; 975 NW2d 52 (2021). When
considered in isolation, we do not find Rules 380.102 and 380.103 invalid.
The Legislature expressly granted the Department rulemaking authority to “promulgate
rules establishing continuing education requirements as a condition for continued employment”
for “grandfathered” school administrators. MCL 30.1246(2). As alluded to above, it seems
obvious that the Department would need to establish a process for tracking administrators’ actual
completion of those continuing education requirements. Rules 380.102 and 380.103 appear to
establish such a process: very generally, a certificate will be issued to a “grandfathered” school
administrator who has completed 150 hours of continuing education within the preceding five
years, and a “grandfathered” school administrator must hold such a certificate. In the abstract, that
is not an obviously-unreasonable process, nor is it obviously not in keeping with the letter and the
spirit of the law.
The Department’s violation in this matter was, as discussed, its failure to recognize that
Lewandowski and the District were not in violation of the statute merely because they were in
violation of the certificate requirement. Rules 380.102 and 380.103 may be proper when used as
tools to verify compliance with an administrator’s statutory obligations. We do not find that the
Department exceeded its rulemaking authority. Rather, the Department exceeded its authority and
contravened its enabling statutes by effectively using compliance with the certificate requirement
as a substitute for the statutory requirements. We recognize our holding leaves open the question
of what sanction, if any, the Department may permissibly impose for a violation of its certificate
requirements; because that question is not before us, we express no view as to its answer. We hold
only that because Lewandowski actually completed the continuing-education requirements
imposed by MCL 380.1246, the Superintendent’s decision that the District violated 388.1763 was
not authorized by law.
We therefore reverse the trial court, and we remand for entry of an order reversing the
Superintendent’s assessment of a state aid penalty against the District. We do not retain
jurisdiction.
/s/ Brock A. Swartzle
/s/ Amy Ronayne Krause
/s/ Kristina Robinson Garrett
-8-