Opinion
Docket No. 83160.
Argued May 1, 1989 (Calendar No. 5).
Decided July 2, 1990. Rehearing denied post, 1244.
Clark, Hardy, Lewis, Pollard Page, P.C. (by William G. Albertson), for the plaintiff.
Hiller, Hoekenga Amberg, P.C. (by Daniel J. Hoekenga, Steven J. Amberg, and Dirk F. Zuschlag), for defendant Kurtz.
This case presents the question whether procedural due process is denied a public school teacher accused of misconduct when the attorney who sits as hearing officer at the teacher's pretermination hearing before the local board of education is a member of the same law firm as the attorney representing the charging party, in this case the superintendent. We answer this question in the negative and remand this case to the State Tenure Commission for review de novo of the merits of the teacher's administrative appeal.
A teacher's pretermination hearing is not a full, adjudicatory hearing to which a full range of procedural safeguards attaches. As stated by the United States Supreme Court in Cleveland Bd of Ed v Loudermill, 470 U.S. 532, 545-546; 105 S Ct 1487; 84 L Ed 2d 494 (1985), the purpose of a pretermination hearing, unlike a full post-termination adjudicatory proceeding, is not to
definitively resolve the propriety of the discharge [but to provide] an initial check against mistaken decisions — essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action.
The dissent fails to heed the marked difference in purpose between the pre- and post-termination hearings and proceedings, erroneously, to analyze this case as if the conduct complained of by the teacher had taken place at a full, adjudicatory, post-termination proceeding.
I
FACTS AND PROCEEDINGS
Scott Kurtz is a tenured teacher who has been employed by the Plymouth-Canton Community School District since 1976. In November 1982, while Kurtz was teaching at Central Middle School, the superintendent of the school district filed written charges against him, alleging that he violated the district's policy regarding the use of physical force in the restraint of an eleven-year-old student. The board of education adopted a resolution to accept the charges and to proceed in accordance with the provisions of the teacher tenure act. The charges and the resolution alleged that the inappropriate use of corporal punishment by Kurtz amounted to reasonable and just cause for suspension. The board provided Kurtz with a copy of the charges, the board's resolution suspending him, and a notice of hearing.
MCL 38.71 et seq.; MSA 15.1971 et seq.
Kurtz requested a private hearing, and the hearing commenced on December 15, 1982. The board adopted a resolution appointing attorney Dennis Pollard as hearing officer. William Albertson, a member of the same law firm as Pollard, represented the superintendent at the hearing. The president of the board of education noted on the record that the board retained the right to overrule Pollard's rulings on motions or evidentiary objections and that the board retained the exclusive authority to evaluate and judge the facts.
The resolution stated, in part:
WHEREAS, no one on the Board is an attorney or otherwise trained in ruling on evidentiary and other issues of law that may arise at such a hearing;
NOW, THEREFORE, BE IT RESOLVED that the rules of evidence that shall be followed in this hearing shall be those set forth in Sections 75 through 78 of the Administrative Procedures Act for the State of Michigan.
BE IT FURTHER RESOLVED that the Board hereby names Dennis R. Pollard as its counsel during this hearing and authorizes him to make rulings of law on its behalf on any motions that may be made or filed, as well as evidentiary objections; and
BE IT FURTHER RESOLVED that the Board retains the right at all times to overrule his rulings if in its opinion the rulings are inappropriate or incorrect; and
BE IT FURTHER RESOLVED that barring a resolution so overruling him, his rulings shall be the rulings of this Board on such matters and accorded the full weight that is appropriate to this Board's ruling; and
BE IT FURTHER RESOLVED, that, notwithstanding this delegation of authority to counsel, the Board shall retain the exclusive authority to evaluate and judge the facts that may be introduced into evidence and to exercise all other duties and responsibilities as required by the nature of these proceedings.
Kurtz objected to the procedures adopted by the board. He contended that the board's delegation of power to Pollard was excessive, in that it vested in the hearing officer the discretion to rule on procedural and evidentiary matters unless overruled by a majority vote of the board. He requested permission to conduct a voir dire examination of Pollard and moved for Pollard's disqualification because of his relationship with Albertson. He also moved to conduct voir dire examinations of members of the board and to recuse those found unable to render a fair and impartial ruling on the issues presented. In an opinion and order dated January 12, 1983, hearing officer Pollard denied the objections raised to the procedures adopted by the board, denied the motion to examine the hearing officer, and granted, in part, the motion to examine the members of the board.
The motion to permit voir dire examinations of the board members indicates that criminal charges were filed against Kurtz because of the incident that led the superintendent to proceed with these charges and that the incident was the subject of a number of inflammatory and prejudicial newspaper articles published in the community. Pollard's written opinion states that "the Board of Education will allow Respondent, through his attorney, to voir dire [sic] its members. However, the scope of inquiry will be limited to permit only questions designed to uncover bias or prejudice as a result of knowledge gained outside of the present proceedings."
During the hearing, Kurtz and several other witnesses testified regarding the incident which gave rise to the present charges. At the conclusion of the hearing, both parties submitted proposed findings of fact and conclusions of law to the board. Pollard attended the board's deliberations, answered questions posed by individual board members, and took notes, which he used to prepare a draft decision.
On February 21, 1983, the board issued its decision. The board found that Kurtz initiated the physical confrontation with the student and that Kurtz made no attempt to use available alternate means, such as directing the student to leave the classroom or using the classroom telephone to request assistance. The board concluded that Kurtz violated school policy on the use of corporal punishment that amounted to a breach of professional ethics and resulted in injury to a student through the use of unreasonable force. The board suspended Kurtz without pay for the remainder of the second semester of the school year and for the first semester of the following year, with no seniority to accrue during the suspension. As a precondition to his return to employment, Kurtz was ordered to submit to a psychiatric evaluation and to present to the board a recommendation that he was psychologically fit to resume his classroom responsibilities.
As an introductory matter, the board stated in its decision that Pollard was present during the board's deliberations for the sole purpose of providing legal advice to the board when requested. The decision states:
Counsel was not requested, nor did he offer, any opinion or judgment as to what inferences should be drawn from the evidence, nor what discipline would be appropriate. Consistent with its resolution appointing counsel, the Board has reserved such responsibility to itself alone. Consistent with exercising that responsibility, each Board member reviewed the evidence prior to the deliberations.
Kurtz appealed to the State Tenure Commission, claiming that the procedures adopted by the board denied him due process and that the record did not support the board's finding of just and reasonable cause for the imposition of discipline. Kurtz specifically objected to the board's selection of Pollard as hearing officer due to his professional relationship with Albertson. He also objected to Pollard's attendance at the board's deliberations.
Additional testimony was taken at a hearing held before the Tenure Commission on April 25, 1983. Pollard acknowledged that the school district had been a client of his firm for several years and opined, as did Superintendent John Hoben, that the board members were aware that he and Albertson were members of the same law firm. Although Pollard did not draft the charges against Kurtz, he provided a letter of advice to the board regarding the legal ramifications of the charges and an overview of the tenure process and prepared the resolution outlining the role of the hearing officer which was later adopted by the board.
Pollard explained that, prior to the board's deliberations, board members were provided with copies of the transcripts as well as with copies of proposed findings of fact and conclusions of law prepared by the parties. During the deliberations, Pollard took notes, discussed the charging party's burden of proof, and advised the board on legal points which arose. Pollard stated that the conclusions reached after the hearing were arrived at solely by the board. Following the board's deliberations, Pollard prepared, and the board adopted, a draft decision based on the board's findings.
The testimony of the members of the board of education was taken by deposition and submitted to the commission following the hearing. Board member Kirchgatter testified that Pollard only participated in the board's discussion when asked to clarify a point of law. Board member McClendon stated that Pollard was engaged because a competent attorney was needed to carry forth a proper hearing. He further stated that the board went through the testimony and spent a lot of time discussing the case, and that the decision drafted by Pollard was consistent with the findings made by the board and was reviewed by the board before it was adopted. McClendon testified that Pollard did not comment on the strength of the evidence or the credibility of witnesses, or suggest appropriate discipline. He concluded that "certainly the arrival at what was fact and what was not fact was purely a function and an operation of the Board of Education, and was not done by Mr. Pollard." Board member Thomas testified that while the board's deliberation was guided by a series of questions formulated by Pollard, Pollard did not participate in the discussion or resolution of those questions.
The Tenure Commission issued its decision on November 8, 1984. The commission stated that the use of counsel in a dual role had not met with unqualified approval, but that school boards are permitted to employ one counsel in a dual role in adjudicative proceedings. The commission concluded, however, that because the board members were aware that Pollard and Albertson were members of the same law firm, Pollard's presence during the controlling board's deliberations violated due process. The commission also concluded that the subsequent provision of a hearing de novo was not adequate to remove the taint of the initial decision made by a biased tribunal and that Kurtz must be reinstated and paid all salary lost. The commission did not reach the question whether the record established just and reasonable cause to support the discipline imposed by the board.
The board of education filed a petition for review in Ingham Circuit Court. Following a hearing, the court issued a written opinion concluding that the commission's decision "that Mr. Kurtz did not receive a fair hearing was not a substantial and material error of law." The court did not address whether the evidence presented to the board supported the discipline imposed.
The Court of Appeals reversed and remanded the case to the Tenure Commission. The Court stated:
In Niemi v Kearsley Bd of Ed, 103 Mich. App. 818, 821-823; 303 N.W.2d 905 (1981), the attorney who regularly served as the controlling school board's advisor represented the charging party in disciplinary proceedings before the same board. In deciding whether this practice was inherently unfair, we recognized that the attorney's dual role of representing the charging party and advising the board carried with it the potential for prejudice, but concluded that the practice was not one that violated principles of due process per se. 103 Mich. App. 821 -822.
We again decline to hold that the involvement of attorneys from the same firm in a single administrative proceeding, with one attorney acting in an advisory capacity and the other attorney acting in a representative capacity, per se constitutes a violation of due process of law. Since we find nothing in this particular record to otherwise substantiate Kurtz' claim of unfairness, we reverse the circuit court order as a matter of law. Pollard did not serve as a decisionmaker, as the controlling board retained the power to decide the case on the merits. Kurtz does not allege actual bias on the part of an individual board member or on the part of the board as a whole. There is no evidence to show that Pollard had a pecuniary interest in the outcome or is enmeshed in other matters involving the school district. [ 166 Mich. App. 331, 339; 419 N.W.2d 783 (1988).]
The Court remanded the case to the Tenure Commission for an evaluation of the merits of the disciplinary action taken by the board. Id., pp 339-340.
We granted leave to appeal, 431 Mich. 905 (1988), and now affirm the judgment of the Court of Appeals.
II
In Loudermill, supra, the Supreme Court held that tenured public employees must be afforded some sort of pretermination hearing. The Court then considered the qualities such a hearing must possess, given the availability of comprehensive postremoval procedures, in order to satisfy the tenured employee's right to due process.
The tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story. To require more than this prior to termination would intrude to an unwarranted extent on the government's interest in quickly removing an unsatisfactory employee. [ Id., p 546. Citations omitted; emphasis supplied.]
The Court thus concluded that
all the process that is due is provided by a pretermination opportunity to respond, coupled with post-termination administrative procedures as provided by the Ohio statute. [ Id., pp 547-548. Emphasis supplied.]
The statutory scheme in Ohio, like our teacher tenure act, provided for a full post-termination administrative appeal followed by judicial review. Id., pp 539-540, n 6. The pretermination hearing, in such a system,
The teacher tenure act provides that public school teachers may be discharged or demoted "only for reasonable and just cause, and only after such charges, notice, hearing, and determination thereof, as are hereinafter provided." MCL 38.101; MSA 15.2001. MCL 38.104; MSA 15.2004 forbids demotion or dismissal except by a majority vote of school board members. The decision of the board may be appealed to the State Tenure Commission. MCL 38.121; MSA 15.2021. If the commission reverses the decision at the board level, the teacher is entitled to "all salary lost as a result of such suspension." MCL 38.103; MSA 15.2003.
De novo review before the Tenure Commission encompasses more than the mere review of the record created before the board. Commission regulations provide that a party may "appear at a hearing in person or by legal counsel and may call, examine, and cross-examine witnesses and introduce into the record documentary or other evidence." 1979 AC, R 38.172. The regulations also address evidentiary rules and require the issuance of subpoenas on request of a party. 1979 AC, R 38.172, R 38.173(1).
need not definitively resolve the propriety of the discharge. It should be an initial check against mistaken decisions — essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action. [ Id., pp 545-546. Citations omitted; emphasis supplied.]
See also Brock v Roadway Express, Inc, 481 U.S. 252, 261, 263; 107 S Ct 1740; 95 L Ed 2d 239 (1987) (emphasizing that the pretermination hearing need be no more than an "`initial check against mistaken decisions'" where expeditious review is available) (plurality opinion, Marshall, J.).
Defendant Kurtz has not demonstrated that the mere engagement of Pollard as hearing officer violated his pretermination due process rights under Loudermill. He has not shown that because of Pollard's participation he received an inadequate explanation of the case against him, or that Pollard's evidentiary rulings were in fact so skewed in favor of the charging party that he (Kurtz) was not provided an "opportunity to present his side of the story." Id., p 546. It is quite clear from the record that Kurtz received more than adequate notice of the charges against him and was provided ample opportunity to respond to those charges.
We assume for the sake of argument that the same process is due before an employee is temporarily suspended, like Mr. Kurtz, or permanently discharged, like Mr. Loudermill. See Roadway Express, supra, pp 262-265 (plurality opinion, Marshall, J.).
Furthermore, assuming that the Loudermill requirements should be expanded when factual disputes are involved in order to provide an employee with "a fair opportunity before discharge to produce contrary records or testimony, or even to confront an accuser in front of the decisionmaker . . .," id., p 553 (Brennan, J., concurring in part and dissenting in part), it cannot be denied that Kurtz took full advantage of his opportunity to testify and to confront witnesses. See also Roadway Express, supra, p 269 (Brennan, J., concurring in part and dissenting in part).
III
Notwithstanding the fact that Kurtz' pretermination hearing comported with the standards set forth in Loudermill, the dissent argues that Kurtz nevertheless was not afforded due process of law because he was denied his "right to an impartial decisionmaker." We agree with the conclusion of the Court of Appeals, however, that Pollard, alleged to be the "decisionmaker" biased against Kurtz, was simply not a decisionmaker in this case.
Post, p 95.
A
Uncontroverted testimony presented to the Tenure Commission shows that Pollard and the board members clearly understood that the judgment on the charges against Kurtz was to be made by the board alone. Kurtz has not shown that Pollard's actions so interfered with Kurtz' ability to present his version of the facts that the board was "not `capable of judging [the] particular controversy fairly on the basis of its own circumstances.'" For example, Kurtz has not demonstrated that Pollard's evidentiary rulings precluded the board from being able to fairly adjudicate the matter before it, nor that Pollard attempted (with or without success) to persuade the board to decide against Kurtz. (Likewise, Kurtz does not contend that the statutory requirement of the teacher tenure act that a tenured teacher may only be dismissed or demoted upon a majority vote of board members was in effect violated by Pollard's overt or covert manipulation of votes.) Before the commission, Pollard vehemently denied having expressed an opinion to board members that the evidence adduced at the hearing substantiated the charges against Kurtz or that a particular penalty was appropriate. Testimony of individual board members also indicates the limited nature of Pollard's participation. In short, the picture of the board's deliberations regarding Kurtz' case painted by those present reveals that the board members had studied the transcripts of the hearing, that a lengthy discussion was held, and that Pollard's role was narrowly circumscribed. As noted above, the extensive record developed at the hearing indicates that Kurtz was offered, and accepted, the opportunity to set out his version of the incident from which the charges arose. In sum, there is no proof that Pollard actually participated in the board's decision.
Ferrario v Escanaba Bd of Ed, 426 Mich. 353, 376; 395 N.W.2d 195 (1986), quoting Hortonville Joint School Dist No 1 v Hortonville Ed Ass'n 426 U.S. 482, 493; 96 S Ct 2308; 49 L Ed 2d 1 (1976).
MCL 38.104(1)(b); MSA 15.2004(1)(b).
See section 1.
B
Mr. Kurtz and the dissent in effect urge us to treat Pollard as a constructive decisionmaker. In our opinion, Pollard's evidentiary and advisory activities, standing alone, do not justify the adoption of this fiction.
According to the dissent,
[t]here is simply no way to determine the extent to which the hearing officer's participation in the board's decision making may have influenced the ultimate decision of the board. The deliberations of a controlling board must be free from improper influence by either party. Once the hearing officer attended and participated in the board's deliberations by offering legal advice, the potential for bias was neither remote nor insubstantial.
Such a threat to the independence of the decision-making body by an attorney with a direct connection to the charging party does not further fair adjudicative procedures, be they mandated by statute or constitution, and certainly does little to preserve the appearance of fairness. Our system of justice will not tolerate such a risk.
Post, pp 100-101.
Imputing a probability of "improper influence" to Pollard's presence, where the record not only fails to suggest such a state of affairs but plainly disproves it, might be justified on policy grounds if one could assume (1) that local boards are weak and susceptible to influence, and (2) that Machiavellian hearing officers have some strong incentive to place the actual outcome of the hearing above ethical and professional considerations and are therefore likely to abuse their positions to influence the proceedings for the benefit of the charging party represented by the officer's professional affiliate.
Regarding (1), such an assumption appears at odds with the dissent's own belief that one can expect a school board to approach impartially tenure charges which are brought by its superintendent, notwithstanding the ongoing relationship between school boards and superintendents, and notwithstanding the board's probable prior knowledge of any employment dispute which has not been resolved prior to removal proceedings. The apparent inconsistency lies in the dissent's willingness to assume both that board members can remain appropriately detached from the entreaties of the very superintendent chosen by the board as its source of educational expertise and information about school related events, while at the same time assuming that the board in this case could not resist the influence of its hearing officer.
Before the Tenure Commission, Pollard referred to criminal charges which had been brought against Kurtz prior to the tenure hearing and stated that the criminal proceedings "were very much in the press locally."
Even assuming, however that board members are likely to be vulnerable to improper outside influence, we are not persuaded to accept assumption (2) above — that a hearing officer affiliated with the attorney representing the superintendent is likely to have sinister motives.
The dissent appears to contend that Pollard had a pecuniary interest in the outcome of Kurtz' hearing. The dissent suggests that there exists a clear "potential for the hearing officer's advice to the board being colored by his pecuniary interest in continuing good relations between the school board and his firm." It is true, as the dissent observes, that the attorneys had a pecuniary interest in participating in the hearing. However, this fact does not entail that the attorneys had a financial interest in a given outcome. The proposition that the hearing officer needed to aid the charging party in order to curry favor with the board itself implies that the board had already communicated to the officer an intent or disposition to rule for the charging party, thus undercutting once again the dissent's assertion that school boards can be trusted to approach tenure matters impartially. In addition, the dissent does not offer compelling reasons why "the hearing officer might have been more likely than an independent adjudicator to advise the board that the argument or evidence presented by his partner was sufficient to meet legal or factual burdens."
Post, p 100.
Post, p 99.
Post, p 100.
We agree with the Court of Appeals that there is no evidence in the record to support the conclusion that Pollard had a pecuniary interest in the outcome of Kurtz' hearing.
In our opinion, the relationship between the attorneys, standing alone, is unlikely to cause the officer to favor the party represented by his professional associate or to imperil a teacher's due process rights under Loudermill. Trained attorneys in the position of Mr. Pollard, retained to help the district avoid running afoul of the law, are no less likely to render dispassionate rulings than lay board members entertaining evidentiary requests from and considering actions taken by their hand-picked superintendent. Moreover, such attorneys are, for the sake of their ongoing relationships with their clients, the school districts, unlikely to preclude teachers from presenting evidence. If evidentiary rulings deprive a teacher of the right to respond to the charges, an attorney might subject the board to liability for violating the teacher's due process rights guaranteed by Loudermill; and, if evidence not admitted before the school board subsequently prompts the Tenure Commission to reverse the board's decision, the attorney could render the district liable for back pay.
A different case would obviously be presented were the contested professional affiliation between the attorney for the teacher and the attorney for either the board or the charging party. Such a case could present a conflict of interest violative of an attorney's professional, ethical obligations.
The dissent discounts the partiality likely to flow from the inherent relationship of trust between a school board and its superintendent while at the same time assuming that two members of the bar, with no apparent interest in the outcome of a tenure action and who are sworn to uphold the best interests of their clients, cannot be accorded the same deference.
And assuming with the dissent that the attorneys' short-term financial objectives are likely to represent the strongest influence on their behavior, it should be borne in mind that the more evidence admitted by the hearing officer, the more time both he and his partner can bill the district.
The dissent accurately observes that the board could have selected another attorney from another law firm to serve as its hearing officer and legal advisor. Its failure to do so, however, does not affect the constitutionality of the procedures followed at Mr. Kurtz' hearing. Although we disagree with the suggestion in the dissenting opinion that it is incumbent upon us to hypothesize a reason for the school board's choice of attorneys, we observe that it is not uncommon for clients to continue business relations with attorneys who, through prior service, have gained the clients' trust and confidence.
Post, p 101.
Post, p 101.
Furthermore, we are unmoved by the fact that the same entity retained and paid both attorneys, for any two attorneys representing the superintendent and the board will be appointed and paid by the same source — the school district — whether the attorneys are professional affiliates or total strangers.
Post, p 99.
In sum, the dissent has chained together several unjustified presumptions en route to the conclusion that Pollard's participation per se worked a violation of due process. The dissent has not identified any compelling reason, nor can we envision any, why Pollard should be presumed to have been financially interested in the outcome of the hearing. It has not adequately explained why Pollard should be presumed to have been a decisionmaker when the testimony at the Tenure Commission clearly shows that he was not, and, therefore, the dissent has failed to make a case that any bias whatsoever, let alone "unconstitutional" bias should be presumed in this case. Indeed, if any "bias" is likely to exist on the part of Messrs. Pollard and Albertson, it is toward their common client — the school district. Attorneys do not have clients to serve their partners; they have partners to serve their clients.
IV
Less than four years ago, we considered a claim by a public school teacher who challenged the procedure employed at his pretermination hearing before the school board on due process grounds. Ferrario v Escanaba Bd of Ed, 426 Mich. 353; 395 N.W.2d 195 (1986).
In Ferrario, we determined that the plaintiff had not established a constitutional violation. Although Ferrario postdated Loudermill, we did not mention Loudermill in our discussion of the plaintiff's due process claim. Loudermill notwithstanding, we suggested that a plaintiff alleging bias on the part of the school board might establish a due process violation at the pretermination phase of a teacher tenure proceeding by showing that "the risk of unfairness was intolerably high or that the probability of unfairness is too high to be constitutionally tolerable." Ferrario, supra, p 380. The question just how high the probability of bias or unfairness must rise before a tenure hearing before the board will be deemed to have worked a violation of a teacher's right to procedural due process was not answered; Ferrario did not define precisely what circumstances, if any, could support such a conclusion, because the record did not substantiate Ferrario's claim of unconstitutional bias.
Because we conclude that Pollard was not a decisionmaker in this case and that, for the reasons set forth above, the risk of unfairness in Kurtz' pretermination hearing was not of constitutional magnitude, Ferrario is of no help to Mr. Kurtz. We therefore save for another day the question whether, and to what extent, Loudermill and Ferrario are in conflict.
V
For the reasons set forth above, we conclude that Kurtz was not deprived of his property interest in continued employment without due process of law. We affirm the decision of the Court of Appeals and remand this case to the State Tenure Commission for review of the merits de novo.
RILEY, C.J., and LEVIN and GRIFFIN, JJ., concurred with BRICKLEY, J.
We respectfully dissent. Defendant Kurtz was denied his right to an unbiased decisionmaker at the board hearing.
At the hearing, Kurtz sought voir dire of both the board members and the hearing officer for bias. The hearing officer allowed the voir dire of the board members, but refused to allow himself to be questioned. After questioning each of the seven board members present, Kurtz challenged three board members for bias. The hearing officer denied these challenges. Kurtz does not contest the hearing officer's rulings regarding the board members in this Court.
I
Less than four years ago, this Court examined a challenge similar to the one before us today. In Ferrario v Escanaba Bd of Ed, 426 Mich. 353; 395 N.W.2d 195 (1986), a teacher alleged that the bias of the school board presiding over his pretermination hearing denied him his constitutional right to due process. The Court assumed in that case that the constitutional right to due process of law included the right to an impartial decisionmaker at the board hearing, articulated the test to be used in determining whether the right had been violated, and applied that test. Although the Court did not specify whether the basis for that right was the United States Constitution, Michigan's Constitution, or both, it relied on cases interpreting the federal constitution.
Today, despite the absence of any challenge by the parties, at any point in the history of this case, to the source or viability of the right recognized in Ferrario or the test adopted and applied there, the majority impliedly discards much of the reasoning in that case.
The majority finds that "`all the process that is due'" under the federal constitution at Kurtz' pretermination hearing is defined in Cleveland Bd of Ed v Loudermill, 470 U.S. 532; 105 S Ct 1487; 84 L Ed 2d 494 (1985), and includes only notice of charges, an explanation of the charging party's evidence, and an opportunity to respond. Ante, pp 78-79, 85-86. The majority concludes that Loudermill's requirements were met in this case before even reaching the question whether Kurtz' right to an impartial decisionmaker was denied. Clearly, under the majority's opinion, the right to an impartial decisionmaker at a pretermination hearing under the tenure act, assumed in Ferrario to be mandated by the federal constitution, is not part of the federal constitution's protections. Because the majority goes on to explain why Kurtz' right to an impartial decisionmaker under Ferrario has not been denied, see ante, pp 88, 94, it may yet be prepared to recognize that the right has its source elsewhere, perhaps in the state constitution or the act itself. However, the majority's earlier application of Loudermill belies its later claim that it is not deciding in this case whether that right is preserved by the federal constitution. Part II of the majority's opinion is irreconcilable with its concluding sentence purporting to avoid the question whether federal constitutional requirements of due process under Loudermill conflict with the requirements of Ferrario. Ferrario was a unanimous decision of this Court, joined by the author of today's majority opinion. Without prompting by the parties, the majority now reaches out to undermine the federal constitutional roots of that case. Regardless of whether Ferrario's reasoning is still shared by a majority of the Court today, it should not be revisited without adequate briefing and argument from the parties.
Ante, pp 87-88. ("Notwithstanding the fact that Kurtz' pretermination hearing comported with the standards set forth in Loudermill, the dissent argues that Kurtz nevertheless was not afforded due process of law because he was denied his `right to an impartial decisionmaker.'")
Although the parties in this case failed to argue an alternate basis for the right, we note that even if it were true, as the majority contends, that due process affords a tenured teacher no more than the right to appear and be heard before the local board prior to his termination, the tenure act itself grants him much more than that. Under the act, a teacher is entitled to written notice of the charges against him and at least thirty days in which to prepare a defense to those charges, § 102, to be presented at a full, public hearing before the local board, at which the teacher has the right to representation by an attorney, § 104. At the hearing, testimony is given under oath or affirmation and the parties and the board have the right to subpoena witnesses. A full stenographic record of the proceeding is made and provided to the parties, and the written decision of the board, which must be prepared within fifteen days of the hearing, must be concurred in by a majority of the board. Id.
These are not the attributes of "`an initial check against mistaken decisions.'" Ante, p 86 (BRICKLEY, J.). Rather, they describe a proceeding that is quasi-judicial in nature, and while the right to an impartial decisionmaker at that proceeding is not plainly provided in the statute, such a right must be implied. Such elaborate procedural safeguards prior to termination would be wholly unnecessary if the Legislature actually intended only one fair hearing, in front of the Tenure Commission, after discharge or demotion. The existence of the safeguards, therefore, clearly indicates a legislative intent to provide a fair hearing not only after, but also before, such action. As we stated in Tomiak v Hamtramck School Dist, 426 Mich. 678, 688; 397 N.W.2d 770 (1986), the right to notice and a hearing before discharge or demotion is the act's "primary protection for a tenured teacher." A hearing before a biased decisionmaker, however, is no protection at all.
The majority's conclusion that due process minimums are lower in the pretermination, as opposed to the post-termination, setting also conflicts with Ferrario's reasoning. Ferrario made no such distinction, relying on pre- and post-termination cases.
This Court's recognition of a constitutional right to an impartial decisionmaker at a predeprivation hearing subject to de novo review extends beyond Ferrario. A case upon which the Ferrario Court relied heavily, Crampton v Dep't of State, 395 Mich. 347; 235 N.W.2d 352 (1975), involved the alleged risk of bias at a predeprivation hearing involving a driver's license. Like the hearing before the school board under the tenure act, the hearing in Crampton was reviewed de novo by another decisionmaker. Yet the Crampton Court applied to the predeprivation hearing the constitutional standards for an impartial decisionmaker that the United States Supreme Court had enunciated for decisionmakers who are not subject to de novo review. The majority's opinion sua sponte undermines Crampton as well.
We therefore agree completely that we should "save for another day the question whether, and to what extent, Loudermill and Ferrario are in conflict." It is unfortunate that the majority is unable to resist addressing it anyway.
II
Setting aside debate over whether it is stare decisis, the federal constitution, the state constitution, or the statute itself that requires that we apply in this case Ferrario's test for the right to an impartial decisionmaker at the board hearing, we dissent from the majority's conclusion that the right was not denied here.
Ferrario set out the test to detect the presence of impermissible bias at a board hearing. Contrary to the majority's present analysis, see ante, pp 88-89, we explicitly rejected the proposition that actual bias must be shown. Ferrario, supra, pp 379-380. Instead, we recognized that in some situations even the risk or probability of bias may be constitutionally unacceptable. Id., p 380 (citing Crampton v Dep't of State, 395 Mich. 347, 353; 235 N.W.2d 352). Crampton stated, and Ferrario implied, that in some cases pecuniary interest can provide a basis for imputed bias even without a showing of actual bias. Crampton, supra, pp 351-352; Ferrario, supra, pp 374, 380. We believe the case before us is such a case.
Testimony before the Tenure Commission established that each counsel's law firm had been employed by the local school district for many years before the present case arose. The hearing officer testified that the school district was billed monthly for the time expended by members of the firm and that the district was billed for the total number of hours he and his partner worked on this matter with no separate billing or breakdown to reflect the different roles performed by each. Because of the firm's joint billing procedure, the two attorneys were essentially both retained and paid by the local school district. The employment of both attorneys furthered their financial interests and the financial interests of their law firm.
The hearing officer was called upon to rule on procedural motions and evidentiary objections raised by an attorney with whom he had an ongoing financial and professional relationship. After the close of proofs, the hearing officer prepared an outline of the disputed factual issues for the school board to consider during the deliberations. He then attended the deliberations, answered questions on legal points, and took notes, which he used to draft the board's decision.
Although we agree with the majority that a review of the record in this case demonstrates that the hearing officer conducted himself in a professional manner with no overt bias, we are unable to conclude with any confidence that the procedure satisfied the guarantee of a fair hearing established in Ferrario and Crampton. The procedure generated both an appearance and a probability of unfairness and biased decision making that is inconsistent with the guarantee of an impartial decisionmaker, whether the basis of that guarantee be a constitution or the tenure act itself.
The majority concludes that the hearing officer was not a decisionmaker because his participation in the deliberations and decision of the board could not have improperly influenced the outcome of the hearing. Its conclusion is apparently based on its belief that any influence the hearing officer exerted on the board's decisions could not have been improper, and, even if it was, the board was able to "resist" that influence.
In our view, the potential for the hearing officer's advice to the board being colored by his pecuniary interest in continuing good relations between the school board and his firm is obvious. For instance, the hearing officer might have been more likely than an independent adjudicator to advise the board that the argument or evidence presented by his partner was sufficient to meet legal or factual burdens.
We also disagree with the majority's suggestion that a school board should have to resist the influence of a person affiliated with counsel for one of the parties during the deliberating process. There is simply no way to determine the extent to which the hearing officer's participation in the board's decision making may have influenced the ultimate decision of the board. The deliberations of a controlling board must be free from improper influence by either party. Once the hearing officer attended and participated in the board's deliberations by offering legal advice, the potential for bias was neither remote nor insubstantial.
Such a threat to the independence of the decision-making body by an attorney with a direct connection to the charging party does not further fair adjudicative procedures, be they mandated by statute or constitution, and certainly does little to preserve the appearance of fairness. Our system of justice will not tolerate such a risk.
As the authors of a recent Yale Law Journal article commented, "[f]ew situations more severely threaten trust in the judicial process than the perception that a litigant never had a chance because the decisionmaker may have owed the other side special favors." Redish Marshall, Adjudicatory independence and the values of procedural due process, 95 Yale L J 455, 483 (1986).
Cf. In re Schlossberg, 388 Mich. 389; 200 N.W.2d 219 (1972). Although this case, unlike Schlossberg, did not come to this Court on appeal from the State Bar Grievance Board, reference to the Rules of Professional Conduct is no less appropriate.
The comment to MRPC 1.10, which concerns the imputed disqualification of attorneys, states that the "rule of imputed disqualification . . . gives effect to the principle of loyalty to the client as it applies to lawyers who practice in a law firm. Such situations can be considered from the premise that a firm of lawyers is essentially one lawyer for purposes of the rules governing loyalty to the client or from the premise that each lawyer is vicariously bound by the obligation of loyalty owed by each lawyer with whom the lawyer is associated."
In view of the duty of loyalty and the premise that "a firm of lawyers is essentially one lawyer," MRPC 1.7, addressing conflicts of interest, is also relevant.
Because board counsel was employed by the board in a quasi-judicial role, Canon 3 of the Code of Judicial Conduct, which admonishes judges to perform the duties of their judicial offices impartially and diligently, also applies.
Furthermore, we find it particularly significant that the board could have easily eliminated the substantial threat of bias in this case if it had selected an independent attorney from another law firm to serve as its hearing officer and legal advisor. It is difficult to imagine a legitimate reason for a local school board to prefer to select a hearing officer from the firm that represents one of the parties rather than from an independent source, and the majority fails to suggest one. If a local school board decides to hire an attorney to serve as hearing officer or legal advisor in a hearing under the tenure act, and we do not intend anything in this opinion to discourage boards from doing so, that attorney should be independent of the counsel for the charging party.
See MCL 380.1253; MSA 15.41253 (authorizing the board to employ an attorney to represent the school district or board and to render other legal service for the welfare of the school district).
III
Despite our disagreement with the majority's conclusions about the teacher's claim of impermissible bias, we agree that the only remedy that can be afforded the teacher is a remand to the State Tenure Commission for review of the merits de novo. An award of back pay based on a procedural error at the board hearing before the commission determines whether the teacher was suspended for cause would be inconsistent with past precedent. See Ferrario; Pounder v Harper Woods Bd of Ed, 402 Mich. 91; 260 N.W.2d 287 (1977); Shiffer v Gibraltar Schools, 393 Mich. 190; 224 N.W.2d 255 (1974). Although the procedures employed by the board in the present case present an unacceptable risk of bias, there has been no determination yet by the Tenure Commission that Kurtz was arbitrarily or capriciously suspended.
A hearing de novo is adequate to remove the taint of an initial decision made by a biased tribunal. The commission has the statutory power to subpoena witnesses to take additional testimony and may make independent findings of fact. Rehberg v Melvindale, Ecorse Twp Bd of Ed, 345 Mich. 731, 737; 77 N.W.2d 131 (1956). All questions of law and fact decided by the controlling board are subject to review and determination de novo, and the school district continues to bear the burden of showing reasonable and just cause for the discipline imposed. Comstock Public Schools v Wildfong, 92 Mich. App. 279, 284-285; 284 N.W.2d 527 (1979). If Kurtz prevails before the Tenure Commission on remand, back pay subject to mitigation under Shiffer, supra, is available.
IV
In this case the specific and identifiable financial and professional relationship between the hearing officer and counsel for the charging party raised a substantial likelihood of biased decision making. The procedure adopted by the school board deprived the teacher, confronted with the potential loss of his livelihood and his profession, of the assurance that his case would be conducted before and decided by an arbiter who is not predisposed or otherwise improperly influenced to decide against him. The potential for bias present in this case could have been avoided without undue financial or administrative burden by selecting an independent attorney to serve as hearing officer and legal advisor. By approving of the board's procedure, the majority invites abuse at the board level and disregards the act's purpose of minimizing unfair treatment of tenured teachers by local boards.
Consequently, we would reverse the decision of the Court of Appeals and remand the case to the Tenure Commission for a review de novo of the merits.
ARCHER, J., concurred with CAVANAGH, J.
BOYLE, J., concurred only in the result reached by CAVANAGH, J.