            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS


    SANDRA BECK,                                                     UNPUBLISHED
                                                                     February 27, 2020
                Petitioner-Appellee,

    v                                                                No. 344522
                                                                     Ingham Circuit Court
    MICHIGAN PUBLIC SCHOOL EMPLOYEES’                                LC No. 17-000857-AA
    RETIREMENT SYSTEM,

                Respondent-Appellant.


Before: BORRELLO, P.J., and METER and RIORDAN, JJ.

PER CURIAM.

        Respondent appeals by leave granted1 the circuit court’s reversal of the decision of the
Michigan Public School Employees’ Retirement Board (Retirement Board) concluding that
petitioner was not entitled to a premium “premium subsidy benefit” under Public Act 300 of 2012,
MCL 38.1391a. We conclude that substantial evidence supported the Retirement Board’s
conclusion, and therefore reverse the circuit court’s order and reinstate the decision of the
Retirement Board.

                                       I. BACKGROUND

        In 2012, the Michigan Legislature amended the Public School Employees Retirement Act,
MCL 38.1301 et seq.2 The 2012 amendment allowed employees to make a choice between
selecting the retiree healthcare fund—known as the premium subsidy fund—for which employees
contributed 3% of their compensation, or opting out of the premium subsidy fund and selecting a


1
 Beck v Mich Pub Schs Retirement Sys, unpublished order of the Court of Appeals, entered January
3, 2019 (Docket No. 344522).
2
  The Legislature enacted the 2012 law in response to challenges to the constitutionality of a 2010
law regarding public-school retiree healthcare benefits. For a history of the legislation and the
constitutional challenges, see AFT Mich v Michigan, 497 Mich 197, 202; 866 NW2d 782 (2015).


                                                -1-
tax-deferred, portable, personal healthcare fund (PHF) account. Employees who selected the PHF
received matching contributions by their employer of up to 2% of their compensation. MCL
38.1391(1); MCL 38.1391a(1).

         In September 2012, the Office of Retirement Services (ORS) sent a letter to petitioner
informing her of the legislative change and indicating that she needed to make the aforementioned
election online through her “miAccount.” The ORS log for petitioner’s account indicated that
petitioner logged into her miAccount on September 16, 2012, and again on October 10, 2012. In
February 2013, ORS sent a letter to petitioner informing her of her retirement-plan elections. The
letter stated, “Your retiree healthcare and pension choices under Public Act (PA) 300 of 2012 were
received by the Office of Retirement Services (ORS) on 10/10/12.” The letter stated that petitioner
had chosen the PHF as her retiree healthcare plan.

        The ORS log indicates that petitioner’s next login was in July 2013. At that time, petitioner
sent a message to ORS stating, “I received a Retirement Account statement for Pension Plus and
don’t know why I received it. I do not participate in Pension Plus. Maybe a mistake was made?”
The same day, an ORS representative responded, “You selected the Personal Healthcare Fund
when you made your retirement elections in October of 2012.” Several additional electronic
messages and letters followed through which petitioner and ORS continued to dispute petitioner’s
healthcare election. Petitioner acknowledged that she had made an election regarding her pension
in October 2012, but she insisted that she did not intend to change her healthcare benefits and that
she would not have opted out of the premium subsidy fund. ORS repeatedly responded that its
records indicated that petitioner had elected the PHF and that, because the election was not changed
within the designated election timeframe, the election was irrevocable.

        In October 2014, petitioner requested an administrative review. In her request, she stated,
“Since I did not voluntarily opt out of the premium subsidy, and we cannot conclusively identify
if the error was due to the system or my haste, I respectfully request that ORS corrects the error
and re-enroll me in the premium subsidy for retiree healthcare, and bill me for any outstanding
contributions.” ORS initially denied petitioner’s request for administrative review on the ground
that her request was untimely, but eventually granted review.

       A hearing was held in April 2017. Before the hearing, petitioner moved to preclude the
testimony of a potential witness, Kayla Lintz from ORS, arguing that respondent had not identified
Lintz as a rebuttal witness until just six days prior to the hearing despite the requirement of
Michigan Administrative Code Rule 792.116043 that witnesses be disclosed 10 days before the
hearing. The administrative law judge (ALJ), however, concluded that because the witness list
reserved respondent’s right to call any rebuttal witness, Lintz’s testimony could proceed.



3
    Mich Admin Code, R 792.11604(2) states in relevant part:
         The respondent shall serve a list of witnesses 10 days before the scheduled hearing
         date. A party shall not call as a witness a person who was not included on a witness
         list unless the administrative law judge finds that the party has established good
         cause as to why the person was not included on the party’s witness list.

                                                 -2-
        Petitioner testified that she experienced some trouble logging into her “miAccount”
between 2007 and 2012, and she maintained that she did not opt out of the subsidy. Lintz testified,
however, that petitioner’s “miAccount history” indicated that petitioner had made an election in
October 2012 to participate in the PHF. Lintz further indicated that other individuals who had also
challenged their PHF elections were similarly told they could not be changed. Lintz also stated
that if a member made no election, the ORS system retained the member’s existing healthcare
option.

        The ALJ concluded that petitioner had failed to meet her burden, and had made a
“voluntary, valid election” to change to the PHF. The ALJ found that the ORS records confirmed
that petitioner logged into her “miAccount” on October 10, 2012 and that petitioner made a pension
election as well as the PHF election. The ALJ summarized his conclusion as follows:

       Petitioner offers no compelling reason why her election should be undone after the
       statutory window has closed except to argue, without any proof, that she did not
       and could not have made such an election. While Petitioner alleges that a mistake
       was made, the fact that she logged into her miAccount on October 10, 2012, the
       same date her elections were recorded, makes it more likely than not that if any
       mistake was made it was made by Petitioner.

        In September 2017, the Retirement Board entered an order adopting the ALJ’s
recommendation. Petitioner appealed this decision to the circuit court. The circuit court reversed
the Retirement Board’s decision. The circuit court recognized that the ORS communication log
of October 10, 2012, showed elections were made in petitioner’s account, including both a pension
election and an election for the PHF. The circuit court also determined that the ALJ had not
committed any palpable error by allowing Lintz’s testimony and that the burden of proof was on
petitioner to show that she was entitled to relief. The circuit court, however, determined that the
Retirement Board’s decision was not supported by the evidence, stating, “There is absolutely
nothing in the record whatsoever to contradict Petitioner’s testimony that she did not and would
never intend to make such an election.” This appeal followed.

                                         II. ANALYSIS

       A circuit court’s review of an administrative agency’s decision is limited to
       determining whether the decision was contrary to law, was supported by competent,
       material, and substantial evidence on the whole record, was arbitrary or capricious,
       was clearly an abuse of discretion, or was otherwise affected by a substantial and
       material error of law. “Substantial” means evidence that a reasoning mind would
       accept as sufficient to support a conclusion. Courts should accord due deference to
       administrative expertise and not invade administrative fact finding by displacing an
       agency’s choice between two reasonably differing views. [Nason v State
       Employees’ Retirement Sys, 290 Mich App 416, 424; 801 NW2d 889 (2010)
       (internal citation omitted).]

Substantial evidence requires “more than a scintilla of evidence,” but “may be substantially less
than a preponderance.” Dep’t of Community Health v Risch, 274 Mich App 365, 372; 733 NW2d
403 (2007). Evidence is substantial if a reasonable mind would accept it as “sufficient to support

                                                -3-
a conclusion.” Id. Resolution of conflicts in the evidence and the credibility of witnesses are
matters reserved for the administrative factfinder, not the reviewing court. Id. A reviewing court
may not “set aside an administrative decision it finds inequitable.” Huron Behavioral Health v
Dep’t of Community Health, 293 Mich App 491, 498; 813 NW2d 763 (2011).

        Respondent argues that the circuit court erred by overturning the Retirement Board’s
decision. “We review a circuit court’s decision on an administrative appeal to determine whether
the circuit court applied correct legal principles and whether the court misapprehended or grossly
misapplied the substantial-evidence test to the agency’s factual findings, which essentially
constitutes a clearly erroneous standard of review.” Nason, 290 Mich App at 424. “A finding is
clearly erroneous where, after reviewing the record, this Court is left with the definite and firm
conviction that a mistake has been made.” Id.

       In overturning the Retirement Board’s decision, the circuit court found:

       The logs did not show how [petitioner’s election into the PHF] came to be logged—
       the only testimony existing regarding how that election came to be logged come
       from Petitioner herself: by mistake. There is no evidence in the record that
       Petitioner’s MiAccount attempted to confirm her irrevocable, one-time elections
       before logging them, or at any time in the election period. There is no evidence
       confirming the keystrokes used to create the election, nor is there any evidence to
       show that Petitioner intended to make the election. There is absolutely nothing in
       the record whatsoever to contradict Petitioner’s testimony that she did not and
       would never intend to make such an election.

This analysis, however, ignores petitioner’s own testimony that she did, in fact, log into her
miAccount and make an election. In filing the administrative appeal, petitioner herself recognized
that she may have been enrolled in the PHF by a computer-system error or by her own “haste.”
Petitioner, however, presented no evidence which would tend to show that the computer system
erroneously logged entries.

         The ALJ and the circuit court concluded that petitioner bore the burden to prove entitlement
to relief. Neither party has challenged this conclusion on appeal. The circuit court’s decision
ignores petitioner’s burden, reversing the Retirement Board’s decision on the ground that there
was no evidence shown that petitioner made an incorrect entry when, in fact, the relevant question
was whether petitioner showed that she made a correct entry that was incorrectly logged. Stated
otherwise, the circuit court awarded petitioner relief because she failed to meet her burden. Even
if we may view the circuit court’s decision as a finding that petitioner’s testimony was so strong
that it established her correct election without any corroborating documentary evidence, we must
note that the circuit court does not sit as an initial factfinder. As relevant here, the circuit court’s
role in an administrative appeal is limited to determining whether the record was sufficient to
support a reasonable administrative factfinder’s conclusion. Credibility determinations are
reserved for the administrative factfinder and, in this case, the ALJ’s credibility determination did
not strongly preponderate in petitioner’s favor.

        In her appellee brief petitioner renews her argument that Lintz’s testimony should be
stricken as untimely noticed. We question, however, whether this issue was properly presented to

                                                  -4-
this Court because it was not raised by respondent on appeal and petitioner did not properly raise
it in a cross-appeal. In re Estate of Herbach, 230 Mich App 276, 284, 583 NW2d 541 (1998)
(stating that a cross-appeal is necessary to “obtain a decision more favorable than that rendered by
the lower tribunal”); MCR 7.207. Nonetheless, to the extent that appellee has raised this issue as
an alternative ground for affirmance, see Herbach, 230 Mich App at 284 (stating that a cross-
appeal is not necessary to state an alternative ground for affirmance), we note that petitioner’s
argument attempts to shift the burden to respondent. Petitioner argues that, without Lintz’s
testimony, there was no record that she made any healthcare election (as opposed to making an
inaccurate election). We disagree. A reasonable inference from the letter sent to petitioner in
February 2013 as well as the exchanges between petitioner and respondent beginning several
months later is that the miAccount system logged plaintiff as electing the PHF. Thus, petitioner
bore the burden to show that she did not elect the PHF. Deferring to the ALJ’s credibility
determinations, substantial evidence supported the ALJ’s conclusion that petitioner did not meet
this burden. Again, respondent presented no evidence—outside of her own, uncorroborated
testimony—that she either elected the premium subsidy or failed to make an election and
respondent’s computer system inaccurately recorded her as electing the PHF. Accordingly, even
if petitioner is correct that the ALJ should have precluded Lintz’s testimony, the alleged error does
not entitle petitioner to affirmance.

        For these reasons, we conclude that the circuit court misapplied the substantial-evidence
standard by invading the ALJ’s credibility determination and by ignoring petitioner’s burden of
proof. Properly respecting the ALJ’s credibility determinations, the record is clear that petitioner
did not meet her burden to show that she did not elect the PHF. Therefore, because substantial
evidence supported the Retirement Board’s decision, we must reverse the circuit court’s order and
reinstate the Retirement Board decision.4

       Accordingly, we reverse the order of the circuit court and reinstate the final order of the
Retirement Board adopting the decision of the ALJ.



                                                              /s/ Stephen L. Borrello
                                                              /s/ Patrick M. Meter
                                                              /s/ Michael J. Riordan




4
  We recognize that this result is likely inequitable. Even if petitioner’s mistake was unilateral,
the incorrect election, made shortly before petitioner’s intended retirement, essentially nullified
her previous contributions for a retirement healthcare subsidy and left her with inadequate time to
build up sufficient funds to obtain healthcare coverage after retirement. That being said,
administrative agencies are not courts of equity and the circuit court may not set aside an
administrative decision on equity principles. Huron Behavioral Health, 293 Mich App at 497-
498.

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