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Michigan Court of Appeals Affirms Tenure Commission Decision in Cona v Avondale Explaining and Applying "Not Arbitrary or Capricious" Standard for Teacher Discipline

By Mark W. McInerney / Nov 18, 2013

Public Act 100 of 2011, enacted and effective July 19, 2011, changed the standard to be applied in the discipline of tenured teachers.  The Act repealed the old "reasonable and just cause" standard, and instead provided that discipline is appropriate if it is "not arbitrary or capricious."

On November 12, 2013, the Michigan Court of Appeals affirmed a May 2012 Tenure Commission decision, both of which are the first decisions from their respective tribunals applying this new standard.  Clark Hill has been privileged to represent the prevailing school district throughout this matter.  In a unanimous 12-page published decision, the Court of Appeals upheld the discharge of a teacher due to misconduct, and in the course of its opinion both provided a definition of "arbitrary or capricious," and made it clear that the standard is to be used not only in evaluating the teacher's alleged misconduct, but also in determining whether the consequences proposed by the local board are to be permitted.

The teacher was convicted of drunk driving in 2010, and placed on probation requiring him to refrain from consumption of alcohol or illegal drugs.  He quickly violated his probation by consuming both alcohol and marijuana.  A second probation violation, again for consuming alcohol and marijuana, was charged in the spring of 2011.  The teacher was offered the choice of jail time or an extension of his probation.  Even though school was in session, he chose the jail time - and then was sentenced to 30 days in jail, taking him out of the classroom for 17 school days.  Only after he went to jail did the District learn of his conviction and probation violations.  The teacher initially misrepresented the reasons for his absence from school, but eventually the truth was revealed.

After his release from jail, the teacher was suspended pending investigation for the last three weeks of school.  When discussions between the parties did not yield a resolution, the  Board of Education in September 2011 - after the enactment of Public Act 100 - passed a discharge resolution.

At all stages of the proceeding, the teacher's contention that the old "reasonable and just cause" standard should apply - since the conduct in question occurred before the statutory change - has been rejected.  The Court of Appeals affirmed the Tenure Commission's conclusion that the governing standard is the one in effect when the charges against the teacher were filed, more than a month after the statutory amendment took effect. [i] The Court also rejected the teacher's contention that he had a "vested right" to the "reasonable and just cause" standard, holding that "until the tenure charges against petitioner were actually filed, petitioner had no more than a mere expectancy that any particular standard would be applied to his conduct," and that until a legislatively-created right is actually vested, it may be taken away by the legislature.

The teacher contended that his use of marijuana should not have been considered, since that use had not been spelled out in the tenure charges.  The Court of Appeals affirmed the Commission's rejection of this contention, holding that the administrative law judge may consider all relevant evidence, regardless of whether it appeared in the charges, and that since the marijuana usage had been raised in the hearing and the exceptions to the ALJ's decision, the Commission likewise could consider it.

The Court of Appeals next concluded that the District had shown that Mr. Cona's conduct had an adverse effect on the students and the learning environment.  The teacher had argued that since his conduct took place away from school, it did not adversely affect the school.  But the Court pointed out, as had the Tenure Commission, that the teacher's 17-day absence from school, necessitating the use of substitute teachers, the evidence that students had planned protests and other potentially disruptive activities after learning of his incarceration, and evidence that his actions undercut the school's anti-alcohol efforts, provided substantial evidence of adverse effect.

Finally, the Court affirmed the Commission's determination that the District's discharge decision was not arbitrary or capricious.  In so doing, the Court provided both a definition of that term and useful guidelines for applying it.  The Court also made clear that "not arbitrary or capricious" governs not only the decision whether to discipline, but also the determination of the level of discipline to be assessed.   In the Court's words, "'arbitrary' means fixed or arrived at through an exercise of will or by caprice, without consideration or adjustment with reference to principles, circumstances or significance, and 'capricious' means apt to change suddenly, freakish or whimsical.  For instance, a reason is arbitrary and capricious if it is based on prejudice, animus or improper motives."  The Court quoted with approval the Tenure Commission's observation that its responsibility "is to review the quality and quantity of the evidence and to determine if the decision to discharge appellant is the result of a deliberate, principled reasoning process supported by evidence," and that therefore "if there is a reasoned explanation for the decision, based on the evidence, the decision is not arbitrary or capricious."  The Court held that there was no basis to find the District had acted arbitrarily or capriciously, and that instead the District "had principled reasons for discharging petitioner from employment."  Included in these reasons were Mr. Cona's drunk-driving conviction, his violation of his probation on two occasions by using alcohol and marijuana, his 17-day absence from work while in jail, his false statements about the reasons for his absence, and the disruption to the learning process caused by his absence while incarcerated.  The Court agreed that the Commission's "duty is not to fashion the penalty that we ourselves would prefer but to review the controlling board's decision for arbitrariness and capriciousness." The Court thus affirmed the Commission's discharge decision as authorized by law and supported by competent, material and substantial evidence.

Mr. Cona still has the opportunity until late December to ask the Michigan Supreme Court to review the case.  While the Supreme Court's response to such a request cannot be predicted, the Court grants only a small percentage of applications for leave to appeal.

Since the Tenure Commission's decision in Cona in May 2012, a number of other Tenure Commission decisions have applied the Cona principles, and several of those decisions are currently on appeal to the Court of Appeals.  This new decision will likely affect the results of those other cases, and will provide further guidance for districts as they consider discipline of teachers under the "not arbitrary or capricious" standard.

If you have questions about the Cona decision or other tenure-related matters, please contact Mark McInerney at (313) 965-8383, mmcinerney@clarkhill.com , or another member of Clark Hill's Education Law group.

[i] Although the issue was not directly raised in the Court of Appeals, the Court ratified the view that, even under the "not arbitrary or capricious" standard, the District still bears the burden of proving the proposition that is actions were not arbitrary or capricious.