                          STATE OF MICHIGAN

                           COURT OF APPEALS



AMY N. SCOTT,                                                       UNPUBLISHED
                                                                    November 1, 2016
               Petitioner-Appellant,

v                                                                   No. 327564
                                                                    State Tenure Commission
NILES COMMUNITY SCHOOLS BOARD OF                                    LC No. 14-000020
EDUCATION,

               Respondent-Appellee.


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

PER CURIAM.

        Petitioner appeals by leave granted the decision and order of the State Tenure
Commission (STC) granting summary disposition to respondent on the grounds that petitioner
failed to state a claim for which relief could be granted. Mich Admin Code, R 155(1)(a). For the
reasons stated in this opinion, we reverse and remand to the STC for further proceedings
consistent with this opinion.

                                       I. BACKGROUND

       Respondent terminated the employment of petitioner based on allegations that petitioner
had engaged in an affair with Adam Zmudzinski, a fellow teacher at Oak Manor Sixth Grade
Center. Petitioner admitted to an affair that began in June 2011, but claimed that it ended a few
months later. She also denied that the affair occurred during school hours. In 2013, petitioner
was promoted to director of instruction for the school district, an administrative position wherein
she was allowed to work a flex schedule.

        The incident that precipitated respondent’s charges against petitioner occurred on
February 5, 2014. Amid suspicions that the affair was ongoing, and noting that petitioner and
Zmudzinski were not in the building, a secretary, Julie Poole, and a teacher at Oak Manor, Juli
Findeisen, investigated the whereabouts of the two. Findeisen telephoned her husband to request
that he drive by Zmudzinski’s home to see if Zmudzinski and petitioner were there. Findeisen
reported back to his wife by sending her a video of petitioner’s vehicle parked in Zmudzinski’s
driveway. Findeisen then shared that video with other teachers at the Oak Manor and Poole.
Poole then asked the principal of the elementary school whether she had seen the video. After
viewing the video, the principal notified the district’s director of personnel and an investigation
was begun.
                                                -1-
         During the investigation, petitioner was placed on administrative leave and told not to
talk to anyone about the matter. Primarily through interviews with Zmudzinski, the school
district concluded from its investigation that petitioner and Zmudzinski had been involved in an
intimate relationship, that both violated a directive not to talk about the matter, and that their
conduct negatively affected both Oak Manor and another of the district’s elementary schools.

                           II. ADMINISTRATIVE PROCEEDINGS

        Interim superintendent Michael Lindley filed charges against petitioner in accordance
with the Teacher Tenure Act (TTA), MCL 38.71 et seq., seeking her discharge, and respondent
adopted a resolution to proceed with the charges. Petitioner filed a claim of appeal in accordance
with MCL 38.104(1) and Mich Admin Code, R 38.143, which included the following prayer for
relief:

               Since it may be difficult if not impossible to return to her former
       workplace due to the defamatory statements made by [the school district] and its
       arbitrary and capricious actions in moving for her dismissal, [petitioner] demands
       that she be given two additional years[’] salary, a positive letter of
       recommendation from [the school district] admitting fault in its investigation,
       compensation for her attorney’s fees, costs, applicable interest, and any other just
       and proper relief.

        Pursuant to Mich Admin Code, R 38.155(1), a party involved in a claim of appeal may
move for summary disposition on any one of several grounds similar to those in MCR 2.116(C).
On July 11, 2014, respondent moved for summary disposition pursuant to subrule (1)(a) on the
ground that petitioner failed to state a claim on which relief can be granted. Petitioner did not
respond to respondent’s motion for summary judgement. In the preliminary decision and order
(PDO), the referee said that he “discussed that motion with counsel during a July 25, 2014
telephone conference.” On July 29, 2014, the referee entered an order granting partial summary
disposition in which he stated that “the Commission does not have jurisdiction to award the
requested relief.”

       The matter proceeded to an evidentiary hearing. During his opening statement on August
11, 2014, petitioner’s attorney argued:

       So at the end of these proceedings, we will ask for a finding that there is no cause
       to substantiate the dismissal that, if there has been an uproar caused after these
       charges were made, it is due to the unilateral actions and abuses of discretion of
       Niles Schools, not Ms. Scott. We think that the contract or at least Ms. Scott’s
       tenure should be honored. And at the close of proceedings, we’ll propose a
       remedy within the confines of the Teachers Tenure Act that will be available
       given the facts of this case. Thank you.

At the end of the testimony, neither side presented any closing argument; neither was asked if
they wanted to present one. The referee advised the parties of the schedule for filing the post-
hearing briefs.


                                               -2-
       In their briefs, both sides argued the merits of the discharge. Petitioner argued that
respondent’s discharge was arbitrary and capricious, and then ended her brief with the following
regarding a remedy:

       D.    Despite the difficulty of Scott’s return, Michigan law does provide a
       remedy for this particular case.

               The evidence presented in this case is that Scott’s reputation was damaged
       but the testimony limited that damage to two schools (and at most four) out of ten
       schools within the Niles Community School System. There was also ample
       evidence that Scott was an accomplished teacher prior to her role as an
       administrator. In this case, Scott’s tenure is a product of her certification and
       prior employment as a teacher.

               Because of these circumstances, Scott’s case tracks closely with the
       remedy found in Street v Bd of Ed of Sch Dist of City of Ferndale, Oakland Cnty,
       361 Mich 82, 104 NW2d 748 (1960). In that case, where a teacher was promoted
       to principal and then reassigned as a visiting teacher within the district, it was
       considered proper (and not a demotion) under the Teacher Tenure Act where the
       salary remained in place. Id.

              The same remedy could be applied here as a reassignment as a visiting
       teacher (excluding those limited number of schools where there is an apparent
       lack of respect factor) at Scott’s same salary of $73,000.00 per year would be
       appropriate. Thus, in light of the lack of cause for dismissal and the alleged lack
       of respect, combined with Scott’s teaching acumen, the remedy found in Street
       would appear to address any remaining issues in this case.

Petitioner also requested that the charges for dismissal be dismissed.

        On December 29, 2014, the referee issued his PDO in which he found that petitioner and
Zmudzinski did have an adulterous affair that lasted from June 2011 to September 2011 but that
the morals clause of her administrator’s contract was not in effect until two years later so she did
not violate the moral turpitude clause within the contract. The referee also found that any
negative perceptions of petitioner by others in the district were based only on unsubstantiated
rumors that the affair was still ongoing in February 2014. He concluded that petitioner was
insubordinate when she responded to an email from Zmudzinski in contravention of a verbal
directive not to communicate with others in the school community, but that act warranted, at
most, a 15-day suspension without pay. Ultimately, the referee found that because respondent’s
claim that petitioner lacks credibility with staff and can no longer be effective as a teacher was
based on rumor and gossip and not based in fact, the decision to terminate her employment was
arbitrary and capricious. The referee denied respondent’s request to discharge petitioner and
ordered that she be reinstated with “lost salary” as that term is defined in case law.

        On March 4, 2015, the STC filed its decision and order on exceptions. The STC found
that although the Teacher Tenure Act (TTA) granted the authority to reinstate petitioner, she did
not request reinstatement in her claim of appeal. The STC found that “the only reasonable

                                                -3-
interpretation of her request for relief is that she was not requesting reinstatement.” The STC
explained:

               The administrative rules of this Commission have the force and effect of
       law. Turner v Grand Blanc Community Schools Board of Education (13-10).
       Rule 13 of the Teacher Tenure General Rules, Mich Admin Code, R 38.143,
       requires that a claim of appeal substantially comply with the form set forth in the
       rules, including a statement of relief that sets forth clearly and concisely the
       demands for relief to which the appellant claims entitlement. Teacher Tenure
       General Rule 25(1)(a), Mich Admin Code, R 38.155(1)(a), provides for the entry
       of summary disposition when an appellant does not state a claim upon which
       relief can be granted. Only the pleadings may be considered when a motion for
       summary disposition is based on Rule 25(1)(a). Mich Admin Code, R 38.155(2).

               Rule 13 is similar to Michigan Court Rule (MCR) 2.111(B)(2) (complaint
       must contain a demand for judgment for the relief the plaintiff seeks). Also
       similar to a general court rule is Rule 25(1)(a). See MCR 2.116(C)(8) (summary
       disposition for failure to state a claim on which relief can be granted). In
       interpreting its administrative rules, this Commission looks to decisions
       addressing the general court rules. Berlin v Board of Education of the Oak Park
       School District (90-30).

The STC then went on to cite two unpublished decisions from this Court to support its
conclusions that petitioner did not state a claim on which relief could be granted because the
relief she requested [two years’ future salary, letter of recommendation, etc.] was not within the
STC’s authority to award, and that any claim for reinstatement was waived by the failure to
specifically request it. The STC went on to opine:

               When summary disposition is sought based on Rule 25(1)(a), parties are
       entitled to an opportunity to amend their pleadings unless amendment would not
       be justified. Mich Admin Code, R 38.155(4). In this case, however, appellant
       filed no motion to amend her claim of appeal.

               For these reasons, we find that the ALJ erred in failing to grant summary
       disposition to appellee and dismiss the claim of appeal. The ALJ’s consideration
       of the motion for summary disposition was limited to the pleadings that had been
       filed at that time. Mich Admin Code, R 38.155(2). When the ALJ ruled on the
       motion, appellant had not requested relief that was within the authority of the ALJ
       and this Commission to grant. Appellant thus failed to state a proper claim for
       relief and appellee was entitled to summary disposition in its favor pursuant to
       Rule 25(1)(a). For this reason, we grant appellee’s final exception….

               The Teachers’ Tenure Act does not require a school district to create a
       particular position for a tenured teacher. Further, it is well settled that this
       Commission has no authority to order that a teacher be reinstated to a particular
       position. See Scott v Board of Education of Lansing School District (02-4)
       (Teachers’ Tenure Act does not create a right to any particular work assignment; a

                                               -4-
       district can assign a tenured teacher to any position for which the teacher is
       certified); Biondo v Grosse Pointe Public Schools (09-23) (Teachers’ Tenure Act
       creates no right to a particular position). See also Bush, supra (Commission has
       no authority to order a teacher’s transfer). In addition, the Teachers’ Tenure Act
       expressly provides that, if a tenured teacher is employed other than as a classroom
       teacher and his or her contract of employment in that other position ends, “[T]he
       salary in the position to which the teacher is assigned shall be the same as if the
       teacher had been continuously employed as an active classroom teacher.” MCL
       38.91(7). Thus, even if appellant’s posthearing request could be considered, it is
       clear that she did not request relief that was within this Commission’s authority.
       (Footnotes omitted).

       Following additional proceedings not relevant to our resolution of this appeal, this Court
granted petitioner’s application for leave to appeal,1 and this appeal then ensued.

                                         III. ANALYSIS

        “A final decision of the tenure commission must be upheld if it is not contrary to law, is
not arbitrary, capricious, or a clear abuse of discretion, and is supported by competent, material,
and substantial evidence on the whole record.” Lewis v Bridgman Pub Sch (On Remand), 279
Mich App 488, 489; 760 NW2d 242 (2008). “A ruling is arbitrary and capricious when it lacks
an adequate determining principle, when it reflects an absence of consideration or adjustment
with reference to principles, circumstances, or significance, or when it is freakish or whimsical.”
Wescott v Civil Serv Comm, 298 Mich App 158, 162; 825 NW2d 674 (2012). An agency’s legal
conclusions are reviewed de novo. See Ingham Co v Capitol City Lodge No 141 of the Fraternal
Order of Police, Labor Program, Inc, 275 Mich App 133, 141; 739 NW2d 95 (2007).

       A. Waiver of Summary Disposition.

       On appeal, petitioner argues that respondent waived the issue of not being granted
summary disposition because respondent did not raise that argument in their exceptions to the
hearing referee’s PDO. We note that pursuant to MCL 38.104(5)(m) the STC’s review is
“limited to consideration of the issues raised in the exceptions based solely on the evidence
contained in the record from the hearing.” A matter not included in a statement of exceptions “is
considered waived and cannot be heard before the tenure commission” or on appeal to this Court.
MCL 38.104(5)(l).

       We cannot find within the record any support for petitioner’s argument. The record
reveals that respondent “took exception” to the hearing referee’s ruling on its motion for
summary disposition because the referee “never addressed that [petitioner] did not state a
challenge to the termination sought.” By so stating, it is evident that respondent raised the issue
of summary disposition in its exceptions. MCL 38.104(5)(l) and(5)(m). The record further


1
 Scott v Niles Community Sch Bd of Ed, unpublished order of the Court of Appeals, entered
August 21, 2015.


                                                -5-
reveals that the STC decided the issue on the record pleadings, MCL 38.104(5)(m); Rule
38.155(2). Lastly on this issue, we hold that the record evidence presented reveals that the
STC’s ruling on the issue of whether respondent preserved the issue of the referee’s decision not
to dismiss petitioner’s claims was not “arbitrary, capricious, or a clear abuse of discretion,”
Lewis, 279 Mich App at 489. Accordingly, petitioner is not entitled to relief on this issue.

       B. Whether Petitioner Expressly Disavowed Reinstatement.

        We next turn to respondent’s argument that petitioner not only failed to request
reinstatement in her prayer for relief, but the first line “expressly disavowed reinstatement as a
remedy and admitted such a remedy would not be appropriate.” Turning to the language
contained within petitioner’s prayer for relief we find the following:

               Since it may be difficult if not impossible to return to her former
       workplace due to the defamatory statements made by [the school district] and its
       arbitrary and capricious actions in moving for her dismissal, [petitioner] demands
       that she be given two additional years[’] salary, a positive letter of
       recommendation from [the school district] admitting fault in its investigation,
       compensation for her attorney’s fees, costs, applicable interest, and any other just
       and proper relief.

        We note that Mich Admin Code, R 38.143 requires tenured teachers contesting a
controlling board’s decision to file a claim of appeal that, in relevant part, “set[s] forth clearly
and concisely those demands for relief to which [petitioner] claims entitlement.” We cannot
glean from petitioner’s statement: “Since it may be difficult if not impossible to return to her
former workplace due to the defamatory statements made by [the school district] and its arbitrary
and capricious actions in moving for her dismissal,” that petitioner explicitly disavowed
reinstatement. To “explicitly disavow” something is to unambiguously refuse to have anything
to do with it.2 Rather than an attempt to “explicitly disavow” reinstatement, the language cited
above is more reasonably construed as an acknowledgement of the possible difficulties of
petitioner returning to her workplace. Reading it as an unambiguous refusal for reinstatement
involves several levels of supposition, which by definition negates any notion of clarity of
purpose. Additionally, the language can also be reasonably construed as petitioner’s preference
for an alternative solution. Consequently, we cannot find that petitioner explicitly disavowed
reinstatement to her former position.

       C. Effect of Failure to Specifically Request Reinstatement.




2
  “Expressly” means “in an express manner,” or “explicitly.” Merriam-Webster’s Collegiate
Dictionary (2003), p 442. “Explicitly” is the adverbial form of “explicit,” which principally
means “fully revealed or expressed without vagueness, implication, or ambiguity.” Id. at 441.
To “disavow” something means to “repudiate” it, i.e., to refuse to have anything to do with it.
Id. at 355, 1058.


                                                -6-
        We next turn to the issue of whether the STC committed legal error by entering summary
disposition against petitioner on the basis that she waived any claim to reinstatement when she
failed to specifically request reinstatement in her claim of appeal.

         We begin our analysis of this issue by noting that the Commission is a quasi-judicial
creation of the Legislature without equitable jurisdiction, Bd of Ed of Benton Harbor Area Schs v
Wolf, 139 Mich App 148, 155-156; 361 NW2d 750 (1984), with powers limited to what is
needed to carry out and enforce the provisions of the TTA, MCL 38.137. Nevertheless, as stated
in their decision infra, the Commission noted that, when interpreting its own rules, it looks to
decisions addressing analogous court rules. And as petitioner points out, this Court has on more
than one occasion suggested or affirmed looking to MCR 2.601(A) to provide relief that a party
did not request in its pleadings. See, e.g., Greater Bible Way Temple of Jackson v City of
Jackson, 268 Mich App 673, 688; 708 NW2d 756 (2005), rev’d on other grounds 478 Mich 373
(2007) (affirming the trial court’s exercise of discretion under MCR 2.601(A) to award attorney
fees that were authorized but not requested where both parties had briefed the issue and
presented oral arguments); Magee v City of Detroit, 203 Mich App 228, 231 n 4; 511 NW2d 717
(1994) (citing MCR 2.601A as authority for a trial court’s awarding the relief to which a plaintiff
is entitled but has failed to request).

        In this action, the alternative relief requested came in the form of a catchall: “any other
just and proper relief.” The question then is whether such a catchall constitutes “alternative”
relief or whether “alternative relief” only includes specifically requested relief. “Alternative
relief” is defined as “[j]udicial relief that is mutually exclusive with another form of judicial
relief.” Black’s Law Dictionary (10th ed), p 1482. While a party can certainly request specific
types of alternative relief, e.g., contract damages or specific performance, there is nothing about
the concept of alternative relief that demands that the alternatives be specifically identified.
Further, we glean nothing in Rule 38.143 which expressly equates “clearly and concisely” with
“specific,” nor states that failure to demand the specific relief to which one claims entitlement
constitutes waiver of that relief. Indeed, a motion under MCR 2.116(C)(8) should be granted
only when the claim is “ ‘so clearly unenforceable as a matter of law that no factual development
could possibly justify recovery.’ ” Johnson, 491 Mich at 435, quoting Wade v Dep’t of
Corrections, 439 Mich 158, 163; 483 NW2d 26 (1992).

        We note that in the request for relief in her claim of appeal, petitioner asked for two
years’ front pay, and a letter of recommendation. It is undisputed that the STC is not authorized
to award that kind of relief.3 However, in her request for relief, petitioner also included the
catchall, “and any other just and proper relief.” MCR 2.601(A), states:




3
  The STC is not authorized to order equitable relief. It can only provide for reinstatement and
salary lost. See, Bd of Ed of Benton Harbor Schools, 139 Mich App 148, 156; 361 NW2d 750
(1984).


                                                -7-
                  (A) Relief Available. Except as provided in subrule (B),4 every final
          judgment may grant the relief to which the party in whose favor it is rendered is
          entitled, even if the party has not demanded that relief in his or her pleadings.

        On this issue, petitioner relies on this Court’s holding in Arabo v Mich Gaming Control
Bd, 310 Mich App 370; 872 NW2d 223 (2015). Petitioner argues that the STC should have
considered MCR 2.601(A) in its application of R 38.143, and deemed her “catchall” prayer for
relief a sufficient request for reinstatement. In Arabo, this Court concluded that plaintiff’s
request for “ ‘all other relief that [the trial] Court deems equitable and just’ ” was “sufficient to
constitute a request, though not explicit, for injunctive or declaratory relief.” Arabo, 310 Mich
App at 395. We find that petitioner’s request for “…any other just and proper relief,” constituted
a legally sufficient request for reinstatement and/or lost salary.

        In so ruling, we recognize respondent’s argument that there is no analogue to MCR
2.601(A) in the TTA, the STC’s administrative rules or the Administrative Procedures Act
(APA). However, Rule 38.143 is analogous to MCR 2.111(B)(2). Both rules allow for the
demand of relief in the alternative, hence Rule 38.143 and MCR 2.111(B)(2) do not conflict with
MCR 2.601(A) to the extent that they acknowledge alternative forms of relief. Review of the
two further reveals that neither demands from petitioner that alternative relief be specifically
pled. In fact, both are silent as to the form or manner in which alternative relief must be pled. In
the absence of specific language relative to the form or substance that need be pled in an
alternate prayer for relief in either Rule 38.143 or MCR 2.111(B)(2), we find MCR 2.601(A)
controlling on this issue. It is undisputed that the only relief to which petitioner could be entitled
is reinstatement and/or lost salary. Respondent argues that petitioner is not saved by MCR
2.601(A) because “[i]n demanding that the Commission consider this rule, Appellant is moving
beyond the pleadings, which is not relevant to a motion based solely on the pleadings.” Such an
argument ignores the very language of MCR 2.601(A), which allows relief: “even if the party
has not demanded that relief in his or her pleadings.” In addition, petitioner was only asking for
relief that was “just and proper,” which would clearly include reinstatement. Although the
referee did not record his interpretation of the request, there is no other way to interpret the
catchall phrase then as a request for the relief that fell within the STC’s jurisdiction to reinstate
an arbitrarily or capriciously discharged teacher.

        As previously noted, the STC has limited authority as to what it may award. Relative to
this specific action, the only awards the STC could grant the petitioner were reinstatement and/or
lost salary. Pursuant to MCR 2.601(A), the STC was empowered to grant reinstatement and lost
salary whether or not they were specifically requested. MCR 2.601(A). Therefore, we find that
the failure of the STC to apply MCR 2.116(A) to this case resulted in the erroneous legal
conclusion that petitioner had waived her right to reinstatement and/or lost salary. We therefore
hold that the STC’s legal conclusion that petitioner waived reinstatement was legal error. See,
generally, Capitol City Lodge, 275 Mich at 141.




4
    Subrule B is not applicable to this action.


                                                  -8-
        Even if we were to find that the plain language of our Court rules compel a different
result than stated above, alternatively, we find compelling the argument that denying petitioner
the right to review her case on the merits is to sacrifice substance to form. We reach this
conclusion by noting that in this case neither party argued that petitioner did not set forth a
facially valid claim for reinstatement. Thus, the STC’s refusal to consider petitioner’s prayer for
“any other just and proper relief” as a request for reinstatement and/or lost salary seems to
sacrifice substance to form, and to therefore undermine one of the main purposes of the TTA,
namely, the elimination of arbitrary and capricious dismissals and demotions of tenured teachers
by boards of education. MCL 38.101(1); See, Goodwin v Bd of Ed of Sch Dist of City of
Kalamazoo, 82 Mich App 559, 573; 267 NW2d 142 (1978).

        In conclusion, the STC’s legal conclusion that petitioner’s failure to specifically request
reinstatement constituted a waiver of such relief constituted legal error. Further, respondent’s
claim that petitioner’s catchall in her prayer for relief does not save her pleading from summary
disposition is unpersuasive. For these reasons, we reverse the order granting respondent
summary disposition under Rule 38.155(1)(a), and remand the matter to the STC for further
consideration of respondent’s exceptions. In light of the disposition of this issue, we find it
unnecessary to address petitioner’s remaining issues.

       Reversed and remanded. We do not retain jurisdiction. No costs are awarded, a public
question being involved. MCR 7.219(A); City of Bay City v Bay County Treasurer, 292 Mich
App 156, 172; 807 NW2d 892 (2011).



                                                            /s/ Stephen L. Borrello
                                                            /s/ Jane E. Markey




                                                -9-
