The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL


Opinion No. 5053

May 5, 1977

ADMINISTRATIVE LAW AND PROCEDURE:

Appointment of hearing officers

TEACHERS:

Authority of State Tenure Commission to appoint hearing officers

The State Tenure Commission may designate and authorize a hearing officer to conduct and be the presiding officer at hearings in teacher tenure cases. However, the hearing officer may not decide a contested tenure case; that may only be done by the State Tenure Commission itself based upon its de novo review of the record.

Dr. John W. Porter

Superintendent of Public Instruction

Department of Education

Michigan National Tower

Lansing, Michigan 48933

You have requested my opinion on a question which may be phrased as follows:

May the State Tenure Commission designate and authorize a hearing officer to conduct and be the presiding officer at a hearing in teacher tenure cases appealed to the Commission?

The teachers' tenure act, 1937 (Ex Sess) PA 4; MCLA 38.71 et seq; MSA 15.1971 et seq, created the State Tenure Commission. State Tenure Commission hearings are contested cases before a state agency and are subject to the Administrative Procedures Act, 1969 PA 306; MCLA 24.201 et seq; MSA 3.560(101) et seq. Henderson v Memphis Community School District, 57 Mich App 770, 777; 226 NW2d 725, 729, leave to app den'd, 394 Mich 763 (1975).

1969 PA 306, supra, Sec. 79 states:

'An agency, 1 or more members of the agency, a person designated by statute or 1 or more hearing officers designated and authorized by the agency to handle contested cases, shall be presiding officers in contested cases. . . .'

Moreover, in Crampton and Holmes, Ed., The New Michigan Administrative Procedures Act Course Handbook, p 117 (1970), the conduct of hearings is discussed as follows:

'MAPA Sec. 79 explicitly authorizes the conduct of hearings by one or more members of an agency or hearing officers appointed by the agency. There is nothing novel in this provision, although it does mean that those responsible for making decisions may not hear the evidence, but may rely upon a reading of the record made at the hearing.'

It is, therefore, my opinion that the State Tenure Commission may designate and authorize a hearing officer to conduct and be the presiding officer at hearings in teacher tenure cases. It must be observed, however, that an administrative rule of the State Tenure Commission currently provides that '[a] hearing for the purpose of taking evidence upon a petition shall be conducted by the commission.' Michigan Administrative Code 1954, AACS, No 86, R 38.172, p 10. This administrative rule would therefore have to be changed if the State Tenure Commission is to designate and authorize a hearing officer to conduct evidentiary hearings. It should also be noted that a hearing officer may not decide a contested tenure case. That may be done only by the State Tenure Commission itself based upon its de novo review of the record made before the hearing officer and the local board of education. Luther v Board of Education of the Alpena Public Schools, 62 Mich App 32, 35; 233 NW2d 173, 175 (1975).

Frank J. Kelley

Attorney General