Holton Public Schools v. Farmer , 77 Mich. App. 765 ( 1977 )

M. B. Breighner, J.

(concurring). I agree defendant acquired tenure. I would affirm the decision of the Tenure Commission holding the school board should have provided defendant a hearing. I would remand to the school board for a determination under MCLA 38.105; MSA 15.2005 as to defendant’s eligibility to fill those vacancies for which he made application.

A school board should not be free to circumvent the purposes and protections of the tenure act by laying off a tenured teacher and then refusing to rehire that teacher, though certified and qualified, for a position subsequently made available. Such a refusal is tantamount to dismissal and may have an equally devastating effect on the teacher. A tenured teacher who has not been offered the "first vacancy in the school district for which he is certified and qualified” should be afforded the same procedural safeguards as those granted a teacher who faces discharge or demotion for cause. MCLA 38.101; MSA 15.2001, MCLA 38.102; MSA 15.2002, MCLA 38.104; MSA 15.2004. Davis v Board of Education of the School District for the City of River Rouge, 73 Mich App 358; 251 NW2d 585 (1977).

The term "certified” as used in the statute is clear. The State Board of Education has the power and duty to "determine the requirements for and issue all licenses and certificates for teachers * * * in the public schools * * * MCLA 380.1531; MSA 15.41531. The requirements to be met before a teacher will be certified are set forth in detail in the Teacher Certification Code, 1973 A ACS, R 390.1101 et seq. Whether a teacher is properly certified for purposes of MCLA 38.105; MSA 15.2005 is a matter not subject to local board determination.

The meaning of the term "qualified”, as it appears in the statute, is not so easily ascertained. It appears from the tenure act that such term calls for the exercise of some subjective judgment on the part of local school boards. MCLA 340.569; MSA 15.3569 sets forth the responsibilities imposed upon local boards relative to the hiring of teaching personnel. In part, it provides:

"The board of every district shall hire and contract with such duly qualified teachers as may be required. All contracts with teachers shall be in writing * * * . No contract with any person shall be valid unless such person shall hold a legal certificate of qualification at the time the contractual period shall begin * * * .”

Given the Legislature’s use of both "qualified” and "certified”, I do not believe those terms can be construed as synonymous. "Qualified” must refer to some standards in addition to those established for state certification.

Where the language of a statute is ambiguous or of doubtful meaning, it should be given a reasonable construction, looking to the purpose of the statute and the object sought to be accomplished. Royal Oak School District v Schulman, 68 Mich App 589, 593; 243 NW2d 673, 675 (1976).

In my opinion the term "qualified”, as it appears in the statute, should be interpreted to permit a local school board to formally adopt attributes which it considers will minimally qualify an individual to teach in that school district. Once adopted, these criteria should be applied uniformly to all laid-off, tenured teachers in the district seeking to fill vacancies for which they are certified. The reasonableness of the criteria, as well as the method of their application, would be subject to review by the State Tenure Commission and ultimately by the courts. This approach has the advantage of maintaining a degree of local control over the schools, while requiring boards to make their rehiring determinations within an established framework using uniform standards.

I am not unmindful of the decision of this Court in Anderson v Harper Woods Public School District, 74 Mich App 227; 253 NW2d 718 (1977), reaching a different result on the hearing rights considered herein. As a matter of policy, I would require the school board to hold the hearing as to qualifications. The Tenure Commission should provide review of school board action, and not be cast in the role of holding qualification hearings. The review proposed in Anderson would not encourage local boards to formulate and adopt standards for rehiring, would not insure consistency in future board recall decisions and could constitute an abdication of board statutory responsibility to hire "duly qualified teachers”. MCLA 340.569; MSA 15.3569.