Opinion
363573
08-10-2023
KALAMAZOO PUBLIC SCHOOLS, Charging Party-Appellant, v. KALAMAZOO EDUCATION ASSOCIATION, MEA/NEA Respondent-Appellee.
UNPUBLISHED
MERC Case No. 21-G-1465-CU
Before: Michael J. Riordan, and Jane E. Markey and YATES, JJ.
PER CURIAM.
Appellant, Kalamazoo Public Schools, desires to transfer a guidance counselor holding a teaching certificate to a social-studies teaching position. Appellee, the Kalamazoo County Education Association, opposes any such transfer and seeks to arbitrate appellant's transfer decision.
The central dispute here is whether MCL 423.215(3)(j) of the Public Employment Relations Act (PERA), MCL 423.201 et seq., prohibits arbitration of the parties' disagreement. The Michigan Employment Relations Commission (MERC) agrees with appellee and concluded that the demand for arbitration is not prohibited by the statute. We disagree. Therefore, we reverse the MERC's order dismissing the unfair-labor-practice charge against appellee and remand to that agency for further proceedings consistent with this opinion.
I. BACKGROUND FACTS
The facts of this case are straightforward. Appellant is a public-school district, and appellee is a collective-bargaining unit. In 2014, appellant hired Tiffany Spencer as a guidance counselor. She is represented by appellee. In addition to Spencer's counselor credentials, she holds a teaching certificate from the Michigan Department of Education in language arts and social studies for 6-12th grade students.
In April 2021, appellant transferred Spencer from her counselor position into a vacant, social studies classroom-teacher position. Shortly thereafter, appellee filed a grievance on her behalf, contesting the transfer decision. Appellant denied the grievance. Appellee subsequently submitted a demand for arbitration. Appellant then initiated this case in July 2021 in the MERC for an alleged unfair labor practice by appellee. According to appellant, the issue of "teacher placement" is a prohibited subject of bargaining under MCL 423.215(3)(j) of PERA, so appellee could not demand arbitration in this matter. Appellee argued that the collective-bargaining agreement (CBA) between the parties provides that Spencer is a guidance counselor, not a teacher, so she cannot be transferred into a teaching position under the CBA, thus the matter should be arbitrated. Appellee contended that Spencer is not a "teacher" for the purposes of MCL 423.215(3)(j) because she does not teach students in the classroom and, consequently, the statute does not prohibit arbitration.
In June 2022, an Office of Administrative Hearings and Rules administrative law judge (ALJ) ruled in favor of appellant, reasoning that Spencer is a "teacher" for the purposes of MCL 423.215(3)(j) because, under MCL 38.71 of the Teachers' Tenure Act (TTA), MCL 38.71 et seq., "the term 'teacher' means a certificated individual employed for a full school year by any board of education or controlling board." Appellee filed exceptions to the ALJ's ruling, and the MERC reversed. The MERC reasoned that "[a]n individual employed as a Guidance Counselor" does not satisfy an ordinary dictionary definition of the word "teacher." The MERC declined to apply the TTA definition of the word "teacher" to MCL 423.215(3)(j) because the latter statute does not expressly incorporate the TTA definition. Therefore, the MERC dismissed the unfair-laborpractice charge.
In a footnote, the MERC observed that in light of its decision, it was unnecessary to address appellee's argument concerning the Family and Medical Leave Act (FMLA). Because the FMLA issue is not before us, the MERC may address that issue on remand.
Under Michigan law, every fulltime teacher "must hold a valid teaching certificate to teach in a department of the school." MCL 380.1233(1). In contrast, a person can "serve in a counseling role in the school district or intermediate school district" based on possession of "a valid teaching certificate with a school counseling endorsement[,]" MCL 380.1233(2)(a), or by meeting statutory criteria separate from teacher certification. MCL 380.1233(2)(b) and (c).
While this appeal was pending in this Court, MCL 423.215 was amended to omit subsection (3)(j). See 2023 PA 115. However, that amendment is not yet effective and, in any event, it may not necessarily resolve the viability of the unfair-labor-practice charge itself. See footnote 13, supra. Therefore, we will proceed to decide the merits of the issue before us.
The majority and I draw diametrically opposed conclusions from the references to the Teachers' Tenure Act in other subsections of MCL 423.215(3), but not in MCL 423.215(3)(j). In my view, the omission of any reference to the Teachers' Tenure Act in MCL 423.215(3)(j) must be deemed intentional, so the omission conclusively reveals that the Teachers' Tenure Act should not be used to interpret MCL 423.215(3)(j). In contrast, the majority reasons that, "because MCL 423.215(3) includes multiple explicit references to the TTA, we conclude that the TTA and MCL 423.215(3) are in pari materia."
II. STANDARD OF REVIEW
The resolution of this case depends on the meaning of the word "teacher." Appellant argues that a harmonious reading of related statutes should be the reference used to make the determination. Appellee counters that a dictionary should be the controlling authority.
"Issues of statutory interpretation are reviewed de novo." City of Riverview v Sibley Limestone, 270 Mich.App. 627, 630; 716 N.W.2d 615 (2006). "[T]he agency's interpretation is entitled to respectful consideration and, if persuasive, should not be overruled without cogent reasons." In re Complaint of Rovas Against SBC Mich, 482 Mich. 90, 108; 754 N.W.2d 259 (2008). However," '[r]espectful consideration' is not equivalent to any normative understanding of 'deference' as the latter term is commonly used in appellate decisions." Id. "[T]he agency's interpretation cannot conflict with the plain meaning of the statute." Id.
III. DISCUSSION
Appellant argues that the word "teacher" in MCL 423.215(3)(j) of PERA is defined by MCL 38.71(1) of the TTA or MCL 380.1249(8) of the Revised School Code (RSC), MCL 380.1 et seq., or both, and that the MERC erred by disregarding both of these statutory definitions in favor of dictionary definitions of the word "teacher." Appellee, on the other hand, argues that the MERC correctly adopted the dictionary definitions. We agree with appellant that the TTA definition of "teacher" is controlling.
As will be explained further infra, the TTA controls the outcome of the matter before us. Thus, we need not consider the RSC in our analysis.
MCL 423.215 provides, in relevant part:
(2) A public school employer has the responsibility, authority, and right to manage and direct on behalf of the public the operations and activities of the public schools under its control.
(3) Collective bargaining between a public school employer and a bargaining representative of its employees shall not include any of the following subjects:
(j) Any decision made by the public school employer regarding teacher placement, or the impact of that decision on an individual employee or the bargaining unit.
(4) Except as otherwise provided in subsection (3)(f), the matters described in subsection (3) are prohibited subjects of bargaining between a public school employer and a bargaining representative of its employees, and, for the purposes of this act, are within the sole authority of the public school employer to decide.
MCL 423.215(3)(f) concerns "noninstructional support services" and is not relevant here.
By enacting MCL 423.215(3)(j) of PERA, "the Legislature intended to remove from the ambit of bargaining any decision concerning the assignment or placement of teachers, and that any decision-making about teacher placement or assignments is to be within the sole discretion of the employer." Ionia Ed Ass'n v Ionia Pub Sch, 311 Mich.App. 479, 487; 875 N.W.2d 756 (2015) (emphasis omitted).
MCL 423.215(3) of PERA includes three explicit references to the TTA. See MCL 423.215(3)(l) (providing that decisions about "a public school employer's performance evaluation system" under the TTA is a prohibited subject of bargaining); MCL 423.215(3)(m) (providing that certain disciplinary policies for public employees governed by the TTA are prohibited subjects of bargaining); MCL 423.215(3)(n) (providing that the terms of classroom observations conducted for the purposes of the TTA are prohibited subjects of bargaining). In turn, the TTA contains numerous provisions regulating the suspension, demotion, or discharge of a tenured "teacher." See, e.g., MCL 38.91; MCL 38.101; MCL 38.103. MCL 38.71(1) of the TTA provides that "[t]he term 'teacher' as used in this act means a certificated individual employed for a full school year by any board of education or controlling board."
"[T]he purpose of the protections provided under the [TTA] is not to guarantee teachers continuing employment under any circumstances but rather to protect teachers from the arbitrary and capricious conduct of school officials." Dailey v Mackinac Island Bd of Ed, 120 Mich.App. 187, 189; 327 N.W.2d 431 (1982). One of the "goals" of the TTA is "to protect and improve State education by retaining in their positions teachers who are qualified and capable and who have demonstrated their fitness, and to prevent the dismissal of such teachers without just cause." Rockwell v Bd of Ed of Sch Dist of Crestwood, 393 Mich. 616, 632; 227 N.W.2d 736 (1975) (quotation marks and citation omitted).
Again, at its core, in this appeal we must determine the meaning of the word "teacher" in MCL 423.215(3)(j) of PERA. "Any word or phrase that comes before a court for interpretation is part of a whole statute, and its meaning is therefore affected by other provisions of the same statute. It is also, however, part of an entire corpus juris." Scalia &Garner, Reading Law: The Interpretation of Legal Texts (St. Paul: Thomson/West, 2012), p 252. "In pari materia (or the related-statutes canon) provides that laws dealing with the same subject should if possible be interpreted harmoniously." SBC Health Midwest, Inc v City of Kentwood, 500 Mich. 65, 73 n 26; 894 N.W.2d 535 (2017) (cleaned up). Under the doctrine of in pari materia, "statutes that relate to the same subject or that share a common purpose should, if possible, be read together to create a harmonious body of law." People v Mazur, 497 Mich. 302, 313; 872 N.W.2d 201 (2015). "An act that incidentally refers to the same subject is not in pari materia if its scope and aim are distinct and unconnected." Id.
The rule that statutes in pari materia should be construed together has the greatest probative force for statutes relating to the same subject and passed at the same legislative session, especially if they were passed or approved or take effect on the same day, or where a later statute refers to an earlier statute. [2B Singer &Singer, Sutherland Statutory Construction (7th ed.), § 51:3 (footnotes omitted).]
Thus, for example, the fact that legislative bills are tie-barred strongly suggests that the corresponding statutory provisions should be interpreted in pari materia. See Measel v Auto Club Group Ins Co, 314 Mich.App. 320, 327-329; 886 N.W.2d 193 (2016). Moreover, the doctrine of in pari materia "is especially true where one Act makes a cross-reference to another Act." Will Co v Village of Rockdale, 226 Ill.App.3d 634, 636; 589 N.E.2d 1017 (Ill Ct App, 1992).
The TTA and MCL 423.215(3) of PERA concern the same subject-school administrative decisions regarding employees, particularly teachers. For example, MCL 38.103(3) of the TTA provides that "[i]f criminal charges have been filed against a teacher, a controlling board may place the teacher's salary in an escrow account during a suspension ...." In other words, the TTA generally governs how a public school should address the compensation of a teacher during the disciplinary process. MCL 423.215(3)(m) of PERA, in comparison, provides that "[f]or public employees whose employment is regulated by [the TTA], decisions about the development, content, standards, procedures, adoption, and implementation of a policy regarding discharge or discipline of an employee" are prohibited subjects of bargaining. Thus, MCL 423.215(3)(m), as with MCL 38.103(3), controls certain issues about the teacher disciplinary process.
Further, as specifically relevant to this case, the TTA regulates the "demotion" of a teacher. See MCL 38.101(1). And, as noted, MCL 423.215(3)(j) of PERA provides that "[a]ny decision made by the public school employer regarding teacher placement, or the impact of that decision on an individual employee or the bargaining unit" is a prohibited subject of bargaining. Thus, both the TTA and PERA's MCL 423.215(3)(j) address the internal assignment of a "teacher." Because the TTA and MCL 423.215(3) concern the same subject, and because MCL 423.215(3) includes multiple explicit references to the TTA, we conclude that the TTA and MCL 423.215(3) are in pari materia. Consequently, the definition of "teacher" set forth in the TTA, MCL 38.71, should be applied to the use of the word "teacher" in PERA's MCL 423.215(3)(j). See SBC Health Midwest, 500 Mich. at 73 n 26.
The conclusion that the TTA and PERA's MCL 423.215(3) are in pari materia is reinforced by legislative history. In this regard, subsections (j) to (p) were added to MCL 423.215(3) by House Bill 4628. See 2011 PA 103. House Bill 4628 was tie-barred with House Bill 4625, which amended the TTA; House Bill 4626, which also amended the TTA; and House Bill 4627, which amended the RSC. The primary purpose of these tie-barred bills, according to this Court, was to "effect[] a massive redistribution of power in the realm of teacher layoffs-from teacher unions to the local school districts as decision-makers, and from administrative agencies to the courts as the only recourse to review challenged layoff decisions." Baumgartner v Perry Pub Sch, 309 Mich.App. 507, 513; 872 N.W.2d 837 (2015). In any event, the fact that subsection (j) was added to MCL 423.215(3) in PERA simultaneously with two tie-barred bills amending the TTA clearly shows that the Legislature contemplated the TTA when adding subsection (j). For this additional reason, the TTA and MCL 423.215(3) are in pari materia. See Trinova Corp v Dep't of Treasury, 433 Mich. 141, 166 n 28; 445 N.W.2d 428 (1989) (explaining that "the guiding principle for whether statutes are in pari materia is whether it is natural and reasonable to think that the understanding of members of the Legislature would be influenced by the other statute").
House Bill 4625 was codified by 2011 PA 101, House Bill 4626 was codified by 2011 PA 100, and House Bill 4627 was codified by 2011 PA 102.
The dissent reasons that the definition of "teacher" in the TTA cannot be applied to MCL 423.215(3)(j) because the TTA provides that its definition of "teacher" is "as used in this act." MCL 38.71(1). In other words, the dissent reasons, the TTA definition of "teacher" is limited to the TTA itself. Respectfully, we disagree.
Moreover, while not directly stated by the dissent, it implies that the RSC definition of "teacher" similarly does not apply to MCL 423.215(3)(j) because the RSC definition includes the qualifier "[a]s used in this section." MCL 380.1249(8).
As explained, the TTA is in pari materia with MCL 423.215(3). The qualifier "as used in this act" does not preclude application of a definition to other acts that are in pari materia. See People v Anderson, 330 Mich.App. 189, 199 n 6; 946 N.W.2d 825 (2019). In Anderson, for example, this Court concluded that MCL 750.492a of the Penal Code, which criminalizes intentionally modifying medical records, was in pari materia with the Medical Records Access Act (MRAA), MCL 333.26261 et seq., and as a result, it was appropriate to apply the MRAA definition of "medical record" to MCL 750.492a despite the fact that MCL 333.26263 of the MRAA qualifies its definitions with the language "[a]s used in this act." Id.
Indeed, our Supreme Court has explained that "[w]hen statutes do not deal with the same subject or share a common purpose and the Legislature has chosen to specifically limit the applicability of a statutory definition, the doctrine of in pari materia is inapplicable." People v Feeley, 499 Mich. 429, 444; 885 N.W.2d 223 (2016) (some emphasis added). In other words, the qualifier "as used in this act," or other similar qualifier, precludes application of a particular definition to other acts when the two statutes in question "do not deal with the same subject or share a common purpose." See id. In this case, however, the TTA and MCL 423.215(3) of PERA do deal with the same subject. Therefore, the TTA definition of "teacher" should be applied to MCL 423.215(3)(j).
In our view, the qualifier "as used in this act" merely states the elementary principle that a particular definition does not have universal application within statutory law. Thus, for example, the TTA definition of "teacher" does not apply to uses of the word "teacher" in the Penal Code because the TTA and the Penal Code are unrelated statutes.
The dissent also reasons that the TTA definition of "teacher" cannot be applied to MCL 423.215(3)(j) because MCL 423.215(3) includes explicit references to the TTA, but no such reference is found in MCL 423.215(3)(j), so the omission is presumed to be intentional. See People v Peltola, 489 Mich. 174, 185; 803 N.W.2d 140 (2011). Again, we disagree. Statutes are not required to have redundant cross-references to be in pari materia. For example, the General Sales Tax Act (GSTA), MCL 205.51 et seq., and the Use Tax Act (UTA), MCL 205.91 et seq., are in pari materia because "[t]he provisions . . . are complementary." World Book, Inc v Dep't of Treasury, 459 Mich. 403, 408; 590 N.W.2d 293 (1999). See also By Lo Oil Co v Dep't of Treasury, 267 Mich.App. 19, 52-53; 703 N.W.2d 822 (2005) (holding that the UTA definition of "purchase" applies to the GSTA because the two statutes are in pari materia). But, following the dissent's reasoning, the GSTA and the UTA cannot be in pari materia because only a few provisions of the UTA explicitly reference the GSTA, see, e.g., MCL 205.95(1), and only a few provisions of the GSTA explicitly reference the UTA, see, e.g., MCL 205.54v(1). Common sense suggests otherwise. Simply, the Legislature need not include dozens or hundreds of unnecessary, explicit cross-references between the GSTA and the UTA to establish that these two statutes are in pari materia.
Notably, in By Lo Oil Co, this Court applied the UTA definition of "purchase" to the GSTA despite the fact that the UTA definition includes the qualifier "[a]s used in this act." See MCL 205.92. As explained, the qualifier "as used in this act" does not preclude application of the in pari materia doctrine.
So too here. Given that the TTA and MCL 423.215(3) concern the same subject, and MCL 423.215(3) includes three explicit references to the TTA, the Legislature was not required to include numerous other explicit references between the two statutes to have them be properly interpreted as in pari materia. This is particularly true with regard to PERA's MCL 423.215(3)(j), which concerns teacher assignments-one of the subjects also addressed by the TTA.
Finally, the dissent reasons that appellant's position lacks merit because, according to appellant, "an individual hired for a non-teaching position such as a counselor who holds a teaching certificate would have to surrender the teaching certificate or risk being involuntarily placed as a classroom teacher," and such an outcome "defies logic." However, such an outcome is eminently reasonable when the TTA and MCL 423.215(3) of PERA are interpreted in pari materia. MCL 38.91(7) of the TTA provides, in relevant part:
For a teacher employed in a capacity other than as a classroom teacher, including but not limited to, a superintendent, assistant superintendent, principal, department head or director of curriculum, under a contract of employment made with the teacher after the completion of the probationary period, a controlling board shall not provide in the contract of employment that the teacher will be considered to be granted continuing tenure in that other capacity by virtue of the contract of employment. Such a teacher shall be considered to have been granted continuing tenure only as an active classroom teacher in the school district. Upon the termination of such a contract of employment, if the controlling board does not reemploy the teacher under contract in the capacity covered by the contract, the teacher shall be continuously employed by the controlling board as an active classroom teacher....
In other words, the protections of the TTA extend to a "teacher" under that act, regardless of whether that teacher is "employed in a capacity other than as a classroom teacher." See id. In Belanger v Warren Consol Sch Dist, Bd of Ed, 432 Mich. 575; 443 N.W.2d 372 (1989), our Supreme Court explained that under the then-existing version of MCL 38.91, the plaintiff-school counselors were "classroom teachers" for the purposes of that statute, and thus could not be denied teacher tenure simply because they instructed students outside the classroom: "In this case [a contrary conclusion] leads to the arbitrary and absurd result that the Legislature intended that a school district have the power to deny tenure to any person employed as a teacher, but who spends the majority of the school day outside of a classroom, regardless of how much of the time is spent with students." Id. at 589. "There is no support for a conclusion that the Legislature intended that a school district have the power to deny tenure to any person employed as a teacher whose primary duty is not teaching in the classroom." Id. at 592.
Accordingly, the TTA and MCL 423.215(3)(j) of PERA create a tradeoff for individuals with a teaching certificate, regardless of whether they are employed in an ordinary classroom setting. On one hand, those individuals may be protected by the TTA. See, e.g., MCL 38.101(1) (limiting the "demotion of a teacher on continuing tenure"). On the other hand, placement of those individuals is "within the sole authority of the public school employer to decide." MCL 423.215(4). This tradeoff "is in accordance with the job security envisioned by the [TTA] which is a guarantee of continued employment and not a guarantee of continued employment in a specific position ...." Belanger, 432 Mich. at 592.
MCL 38.74 defines "demote," in relevant part, as "to suspend without pay for 15 or more consecutive days or reduce compensation for a particular school year by more than an amount equivalent to 30 days' compensation or to transfer to a position carrying a lower salary."
In so reasoning, we do not necessarily suggest or conclude that all guidance counselors are "teachers" for the purposes of the TTA or that Spencer herself is a "teacher" for the purposes of the TTA. Nor do we necessarily suggest or conclude that the CBA in the matter before us is inconsistent with the TTA as to some of its distinctions between typical classroom teachers and guidance counselors such as Spencer with a teaching certificate. Instead, we simply observe that the TTA extends to some individuals beyond typical classroom teachers. We note, however, that the ALJ stated that "Michigan Department of Education Administrative Rule 390.661[] further clarifies what the term 'teacher' means in the TTA and would appear to include the position of Guidance Counselor into that definition." In this regard, Mich. Admin Code R 390.661(1) provides, in relevant part, that "[f]or the purposes of teacher tenure under the provisions of article II of [the TTA], MCL 38.81 to 38.84, 'certificated,' as it refers to teachers, shall include any teacher who holds a Michigan teaching certificate, as defined by R 390.1101, which is valid for the position to which he or she is assigned, or any teacher employed in a school guidance counselor position holding any Michigan teaching certificate with a school guidance counselor endorsement ...." (Emphasis added.) We also note that appellant represents on appeal that "Ms. Spencer, as a counselor with a MDE teaching certification, is protected by the Teachers' Tenure Act."
Turning to the appeal before us, the word "teacher" in MCL 423.215(3)(j) is defined by MCL 38.71 of the TTA, which provides, in relevant part, that "teacher" is "a certificated individual employed for a full school year by any board of education or controlling board." MCL 38.71(1). The parties do not dispute that Spencer satisfies this definition because she holds a valid teaching certificate and was employed for a full school year. That is, Spencer is a "teacher" for the purposes of MCL 423.215(3)(j). Therefore, the matter of her classroom placement is a prohibited subject of bargaining under MCL 423.215(3)(j) because the matter involves a "decision made by the public school employer regarding teacher placement," and the MERC erred by concluding otherwise.
MCL 38.72 provides that "[t]he term 'certificated' means holding a valid teaching certificate, as defined by the state board of education."
IV. CONCLUSION
The word "teacher" in MCL 423.215(3)(j) is defined by MCL 38.71 of the TTA because the TTA and MCL 423.215(3) of PERA are in pari materia. The MERC erred by concluding otherwise. Accordingly, we reverse the MERC's order dismissing the unfair-labor-practice charge against appellee and remand to that agency for further proceedings consistent with this opinion.We do not retain jurisdiction.
Whether and to what extent the unfair-labor-practice charge, as originally filed, remains viable notwithstanding the recent statutory amendment may be addressed by the MERC on remand.
Finally, even if the dissent does not accept that the TTA and MCL 423.215(3) are in pari materia, we still disagree with its conclusion that dictionary definitions of "teacher" control here. Seven different subsections of MCL 423.215(3) refer to the RSC, and subsection (l) specifically refers to MCL 380.1249 of the RSC. MCL 380.1249(8) provides, in relevant part, that" 'teacher' means an individual who has a valid Michigan teaching certificate or authorization . . . and who is assigned by the school district . . . to deliver direct instruction to pupils ...." Thus, both the TTA and the RSC, which are repeatedly referenced in MCL 423.215(3), suggest that a "teacher" for the purposes of MCL 423.215(3) is a person who holds a valid teaching certificate. Further, Spencer satisfies the definition of "teacher" in MCL 380.1249(8) because she holds a teaching certificate and was assigned by appellant to deliver direct instruction to pupils in the classroom. We acknowledge that the MCL 380.1249(8), of the RSC, definition of "teacher" is slightly different from the TTA definition of "teacher." In our view, however, the TTA definition supersedes the RSC MCL 380.1249(8) definition for our purposes because MCL 380.1249 only concerns a performance evaluation system, which is referenced only by MCL 423.215(3)(l), of PERA. In contrast, the TTA addresses school administration in multiple respects, and multiple subsections of PERA, MCL 423.215(3), reference the TTA, explicitly or implicitly. As a result, the TTA is more specific to the matter before us than the RSC's MCL 380.1249.
Christopher P. Yates, J. (dissenting).
Just as all roads once led to Rome, all principles of statutory construction lead, in this case, to the ineluctable conclusion that a guidance counselor is not a "teacher" for purposes of the Public Employment Relations Act (PERA), MCL 423.215(3)(j). The Michigan Employment Relations Commission (the Commission) issued a decision in this case concluding that a guidance counselor is not a "teacher" under MCL 423.215(3)(j). We must have" 'cogent reasons' for overruling an agency's interpretation" of a statute. In re Complaint of Rovas Against SBC Mich, 482 Mich. 90, 103; 754 N.W.2d 259 (2008). The Commission used dictionary definitions of the word "teacher," just as Michigan jurisprudence suggests, South Dearborn Environmental Improvement Ass'n, Inc v Dep't of Environmental Quality, 502 Mich. 349, 361; 917 N.W.2d 603 (2018), to define the term. Additionally, the Commission looked to statutory definitions of the word "teacher" and cogently explained why an expansive definition of the term is incompatible with MCL 423.215(3)(j). As a result, I believe we have no basis to reject the Commission's interpretation of the word "teacher" in MCL 423.215(3)(j), so I dissent.
I. STANDARDS OF REVIEW
The outcome of this appeal turns on the meaning of the word "teacher" included in MCL 423.215(3)(j). This Court must review the Commission's interpretation of MCL 423.215(3)(j) de novo. Complaint of Rovas, 482 Mich. at 97. "[A]n agency's interpretation of a statute is entitled to 'respectful consideration,' but courts may not abdicate their judicial responsibility to interpret statutes by giving unfettered deference to an agency's interpretation." Id. at 93. Put another way, courts "must respect legislative decisions and interpret statutes according to their plain language." Id. This standard requires" 'cogent reasons' for overruling an agency's [statutory] interpretation." Id. at 103.
II. LEGAL ANALYSIS
Kalamazoo Public Schools (the District) insists the Commission erred in defining the term "teacher" as used in MCL 423.215(3)(j) and, in doing so, mishandled the grievance filed on behalf of guidance counselor Tiffany Spencer by the Kalamazoo County Education Association (KEA). Our Supreme Court has explained that, when statutory language is unambiguous, courts "presume the Legislature intended the meaning that it plainly expressed." People v Peltola, 489 Mich. 174, 181; 803 N.W.2d 140 (2011). In interpreting a statute, "every word should be given meaning, and we should avoid a construction that would render any part of the statute surplusage or nugatory." Id. (quotation marks omitted). "Terms that are not defined in a statute must be given their plain and ordinary meanings, and it is appropriate to consult a dictionary for definitions." City of Grand Rapids v Brookstone Capital, LLC, 334 Mich.App. 452, 464; 965 N.W.2d 232 (2020) (quotation marks and citation omitted).
The PERA expressly governs the employment relationship between a public employer and its employees. See MCL 423.201 et seq. Under MCL 423.215(1), a public employer has a duty to "bargain collectively with the representatives of its employees." Such bargaining must be done in good faith, and there are certain subjects over which the public employer is required to bargain, such as wages, hours, and other conditions of employment. Id. Conversely, there are subjects that cannot be part of collective bargaining. As MCL 423.215(3)(j) explains:
(3) Collective bargaining between a public school employer and a bargaining representative of its employees shall not include any of the following subjects:
(j) Any decision made by the public school employer regarding teacher placement, or the impact of that decision on an individual employee or the bargaining unit.
The PERA does not define a "teacher," but the word is defined in several other statutes and rules concerning teachers. The Teachers' Tenure Act, MCL 38.71 et seq., defines a "teacher" as "a certificated individual employed for a full school year by any board of education or controlling board." MCL 38.71(1). The Legislature explicitly stated, however, that that definition applies to the word "teacher" "as used in this act." Id. Also, the Revised School Code, MCL 380.1 et seq., contains a definition of a "teacher" that differs from the definition in the Teachers' Tenure Act. In a section addressing teacher evaluations and training, the Revised School Code defines a "teacher" in MCL 380.1249(8) as follows:
As used in this Section, "teacher" means an individual who has a valid Michigan teaching certificate or authorization or who is engaged to teach under section 1233b; who is employed, or contracted for, by a school district, intermediate school district, or public school academy; and who is assigned by the school district, intermediate school district, or public school academy to deliver direct instruction to pupils in any of grades K to 12 as a teacher of record. [Emphasis added.]
Presented with competing definitions of a "teacher" from the Teachers' Tenure Act and the Revised School Code, the Commission relied instead on the dictionary definition of a "teacher" to resolve whether MCL 423.215(3)(j) applies to Spencer. Because the Legislature had not indicated whether the term "teacher placement" in MCL 423.215(3)(j) should apply to an employee whose employment is regulated by the Teachers' Tenure Act or who satisfies the definition of a "teacher" in the Revised School Code, the Commission sought to divine the plain and ordinary meaning of a "teacher" by consulting dictionaries. After quoting the definition of a "teacher" in each of those dictionaries, the Commission noted that "[a]n individual employed as a Guidance Counselor meets none of these definitions of a 'teacher.'" The Commission also observed that any definition of a "teacher" that includes a guidance counselor does not advance the purpose of MCL 423.215(3)(j), which was to "improve teaching and education by rewarding well-performing classroom teachers and penalizing sub-standard classroom teachers." (Emphasis added.)
The District faults the Commission for not following the lead of the Revised School Code by deferring to the certification of Spencer as a teacher. The District contends that, by not treating Spencer as a "teacher," the Commission improperly exercised the authority vested in the Michigan Department of Education to determine who is a teacher. But that argument conflates two issues: (1) who constitutes a teacher under MCL 423.215(3)(j); and (2) who is qualified to be a teacher as decided by the Michigan Department of Education and the Revised School Code. The governing inquiry is whether Spencer constitutes a "teacher" for purposes of MCL 423.215(3)(j), not whether she is qualified to be a teacher under the Revised School Code. Hence, the District's contention that all employees who are qualified to be teachers are subject to "teacher placement" under MCL 423.215(3)(j) cannot survive scrutiny. Under that approach, an individual hired for a non-teaching position such as a counselor who holds a teaching certificate would have to surrender that teaching certificate or risk being involuntarily placed as a classroom teacher.1 That interpretation-which dictates that an individual employed by a school district who is certified to be a teacher risks being involuntarily reassigned to a classroom position regardless of the position that the individual was hired to occupy-defies logic. Thus, the District has not demonstrated that the Commission erred in refusing to determine that anyone qualified to be a teacher under the requirements in the Revised School Code must be deemed a "teacher" for purposes of MCL 423.215(3)(j).
The majority contends that the Commission should have adopted the Teachers' Tenure Act definition of a "teacher" in applying MCL 423.215(3)(j). The majority observes that the Teachers' Tenure Act is referenced in MCL 423.215(3)(k), (1), (m), and (n), so it would make sense to believe that the Legislature intended "teacher" as used in MCL 423.215(3)(j) to share the Teachers' Tenure Act's definition of the word. But this argument is contrary to principles of statutory interpretation. "Generally, when language is included in one section of a statute but omitted from another section, it is presumed that the drafters acted intentionally and purposely in their inclusion or exclusion." Peltola, 489 Mich. at 185. The fact that the Legislature included explicit references to the Teachers' Tenure Act in four subsections of MCL 423.215(3), but did not include any such reference in MCL 423.215(3)(j), strongly suggests the Legislature did not intend that the Teachers' Tenure Act would apply to MCL 423.215(3)(j).2 See Peltola, 489 Mich. at 185.
To be sure, this Court has instructed the Commission to give a broad interpretation to MCL 423.215(3)(j). See Ionia Ed Ass'n v Ionia Pub Schs, 311 Mich.App. 479, 486-487; 875 N.W.2d 756 (2015). But if the definition of a "teacher" selected by the Commission is accurate, that instruction does not apply in this case. No authority suggests that interpreting a statute broadly obligates the Commission to exceed the bounds of definitions of relevant words. Affording the Commission's interpretation of MCL 423.215(3)(j) "respectful consideration," as we must do, neither the District nor the majority has furnished "cogent reasons" for overruling the Commission's definition of the term "teacher." See Complaint of Rovas, 482 Mich. at 97, 103. The Commission properly relied on the dictionary definition of the word "teacher," which is not defined in the PERA. Brookstone Capital, LLC, 334 Mich.App. at 464. Because the majority has not shown a conflict between the Commission's definition and the Legislature's intent, we have no basis to reject the definition of a "teacher" chosen by the Commission. See Complaint of Rovas, 482 Mich. at 103. Accordingly, I believe we must accept the Commission's ruling that Spencer, as a guidance counselor, was not a "teacher" for purposes of placement under MCL 423.215(3)(j).
III. LEGISLATIVE DEVELOPMENTS
In a rare instance of immediate legislative assistance in this Court's work on interpreting a statute, our Legislature recently spoke to the significance of MCL 423.215(3)(j) by totally excising that subsection from the PERA. See 2023 PA 115. Thus, the Legislature, in its handiwork and its analysis, left no doubt that the amendment renders "teacher placement" subject to the collectivebargaining process. To be sure, the effective date of that amendment has not yet arrived because it was not given immediate effect, but the elimination of MCL 423.215(3)(j) and the concomitant recognition of the right to arbitrate challenges to transfers of all teachers and guidance counselors alike depends on nothing more than the passage of time. In other words, the Commission showed remarkable prescience in ordering the parties to arbitrate the transfer of the guidance counselor in this matter because, regardless of her status as a "teacher," her transfer will soon have to be handled through arbitration. Because our decision in this case comes with an obvious expiration date, I see no reason to deny the KEA arbitration of the transfer at issue here. Accordingly, I dissent.