Imbrunone v. Inkster Public Schools

Per Curiam. Inkster Public Schools appeal as of right from an order of the circuit court affirming a decision of the State Tenure Commission, which awarded petitioner permanent tenure as a classroom teacher, advisor and assistant director in *134 three school districts, including Inkster Public Schools. The tenure commission also awarded petitioner lost salary. We affirm. According to the commission’s factual findings, which we accept because they are supported by competent, material and substantial evidence on the whole record, Beebe v Haslett Public Schools (After Remand), 406 Mich 224, 231; 278 NW2d 37 (1979), petitioner obtained tenure as a Michigan teacher in 1974, after having taught for two school years in the Cadillac Public School system. MCL 38.81; MSA 15.1981. In 1979, petitioner was hired by a consortium of three school districts which included Westwood, Inkster and Cherry Hill. Petitioner was hired for the 1979-80 school year as an advisor, a nonclassroom position, at a magnet school for gifted and talented children from the three participating school districts. The project was funded by the federal government until September of 1982, at which time it ceased operation. About a month or two into the 1979-80 school year, petitioner was asked to perform some administrative duties which were expected to consume about ten percent of her time. Petitioner was paid an additional annual stipend of $2,000. The administrative duties delegated to petitioner were those of assistant director, a position new to the program. Petitioner testified that she spent approximately fifty percent of her time in this administrative capacity. Petitioner worked without a contract during the 1979-80 school year, and was informed at the end of that year that she would not be rehired because of the economic need to reduce personnel. She was subsequently rehired as an advisor for the 1980-81 school year. During that year petitioner did not *135 perform any of her former duties as assistant director. 1 At the close of the second school year, petitioner was again informed that she would not be rehired due to a reduction in personnel. At that time, the consortium was attempting to fill vacancies for the positions of director and assistant director, and petitioner submitted her name for consideration. The position of assistant director was subsequently filled by a nontenured teacher who had just completed her first year of probation. Petitioner filed a petition with the State Tenure Commission, claiming that the districts violated the teacher tenure act, MCL 38.71 et seq.; MSA 15.1971 et seq., when they failed to hire her to fill, the vacant position of assistant director, a position for which she was certified and qualified. MCL 38.105; MSA 15.2005. The three districts defended separately. Following a hearing, the tenure commission held that, upon completion of the 1979-80 school year, petitioner had obtained permanent tenure in all three school districts, MCL 38.92; MSA 15.1992, and that she was tenured not only as a classroom teacher but also as an advisor and assistant director. Based on these findings, the commission concluded that the districts violated MCL 38.105; MSA 15.2005 when they hired a nontenured teacher to fill the position of assistant director during the last year of the program. Only respondent Inkster Public Schools appealed this decision to the circuit court, which affirmed. On appeal to this Court, respondent argues that the commission erred in finding that all three districts were petitioner’s employers for purposes *136 of determining tenure. According to respondent, the teacher tenure act was not intended to apply to employees hired by consortium projects such as the magnet school in this case. Under respondent’s interpretation of the act, teachers hired into multi-district programs would be denied the employment security afforded through tenure. Since the purpose of the teacher tenure act is to protect Michigan teachers from arbitrary employment practices, Wilson v Flint Bd of Ed, 361 Mich 691; 106 NW2d 136 (1960), we reject respondent’s argument on public policy grounds. We hold that the tenure act does apply to teachers hired for programs which are operated by multiple school districts, so long as the position for which the teacher is hired requires certification. Respondent also challenges the commission’s finding that petitioner was employed by all three districts rather than just one. The commission reached this conclusion by applying its economic reality test, which involves analysis of six factors: 1) the power to select and hire, 2) payment of wages, 3) the power to dismiss, 4) the power to control the manner in which the work is performed, 5) whose work is being done, and 6) whether the work being done is an integral part of the claimed employer’s business. We approve the commission’s use of this test in the instant context. Evidence introduced at the administrative hearing reveals that the magnet school was funded in large part by a federal grant, awarded on behalf of the three districts. The grant required a consensus of all three districts regarding expenditure of the funds. Staffing and salary decisions were made by a planning group comprised of the superintendents of each of the three *137 districts. None of the districts by itself had the authority to hire or discharge employees or develop terms and conditions of employment for the staff of the program. The commission’s findings are supported by evidence on the whole record and its conclusion that petitioner was hired by all three districts is consistent with the law. Respondent also challenges the commission’s award of tenure as assistant director, asserting that tenure, if any, earned by petitioner must be limited to the positions of classroom teacher and advisor. Respondent apparently never presented this issue to the tenure commission, as suggested in the following passage of its opinion: Appellant claims that she attained tenure status as a classroom teacher, as an advisor, and as an assistant director by virtue of her employment with the Magnet Project during the 1979-80 school year. Appellant further asserts that because appel-lees were joint employers, she gained tenure status with each district. Appellees deny they are the employers and maintain that appellant could not acquire tenure in any capacity within the Magnet Project since it is not a controlling board or a school district within the definitions of the Tenure Act. Appellees have not addressed the question of what tenure status appellant may have attained should any or all of them be found to be her employer. [Emphasis added.] We generally do not review issues raised for the first time on appeal. Balogh v Flat Rock, 152 Mich App 517, 520; 394 NW2d 1 (1985). Even where, as here, the question first presented on appeal is one of law, we require all of the material facts. Because we do not have before us the commission record (which apparently includes a set of "stipu *138 lated facts”), 2 we decline to review the commission’s decision regarding the type of tenure earned by petitioner. We point out that in Poland v Grand Ledge Public Schools Bd of Ed, 156 Mich App 691; 402 NW2d 70 (1986), another panel of this Court determined that a part-time tenured teacher is not entitled to priority consideration for a full-time vacancy within the same district. The. opinion in Poland, supra, lends support to the position taken by Marian Gibson, member of the tenure commission, in her dissent in the instant case. Affirmed on the grounds presented. Footnotes [1] Although not stated by the commission in its findings, testimony taken at the administrative hearing suggests that the position of assistant director was made into a full-time position and was filled by another individual during the 1980-81 school year. [2] Included in the circuit court record is a copy of the commission’s opinion and decision and a copy of the transcript of a hearing conducted before the commission on December 16, 1982, but no "stipulated facts.”