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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)



Opinion No. 5708

May 15, 1980



Transcript of hearing before State Tenure Commission

Neither the State Tenure Commission nor its hearing officer is required to provide without charge a transcript of the hearing to either party to such hearing.

Dr. Phillip E. Runkel

Superintendent of Public Instruction

Michigan National Tower

Lansing, Michigan 48933

Your predecessor requested my opinion on the following question:

Is the State Tenure Commmission required by the teacher tenure act, 1937 Ex Sess PA 4, MCLA 38.71 et seq; MSA 15.1971 et seq, to provide a transcript of a hearing before the Commission or its hearing officer to either or both parties free of charge and within 10 days after the hearing?

No provision of either 1937 Ex Sess PA 4, supra, or of the administrative rules promulgated by the State Tenure Commission expressly requires the Commission to provide a free transcript to either the board of education or the teacher. However, 1937 Ex Sess PA 4, supra, art 6, Sec. 1 provides, in pertinent part, as follows:

'. . . Notice and conduct of such hearing (before the Commission) shall be the same as provided in article 4, section 4 of this act, and in such other rules and regulations as the tenure commission may adopt.'

1937 Ex Sess PA 4, supra, art 4, Sec. 4 regulates the conduct of hearings by controlling local boards of education. The section provides that such hearings may be public or private at the teacher's option, demotion or dismissal must be voted by a majority of the board, both sides may be represented by counsel and testimony shall be on oath, the board may subpoena witnesses and evidence and a decision must be rendered within 15 days after the hearing. In addition, 1937 Ex Sess PA 4, art 4, Sec. 4(e), supra, provides that:

'The controlling board shall employ a stenographer who shall make a full record of the proceedings of such hearing and who shall, within 10 days after the conclusion thereof, furnish the controlling board and the teacher affected thereby with a copy of the transcript of such record, which shall be certified to be complete and correct.' (Emphasis added.)

While most of the requirements enumerated in 1937 Ex Sess PA 4, supra, art 4, Sec. 4 directly affect the conduct of the hearing, the preparation and furnishing of the transcript obviously takes place after the hearing and is not part of the hearing itself. In Royal Oak School District v Schulman, 68 Mich App 589; 243 NW2d 673 (1976), the Court construed 1937 Ex Sess PA 4, supra, art 4, Sec. 4(f), to include the controlling board's decision within the teacher's statutory right to have a private hearing. However, in Davis v River Rouge Board of Education, 406 Mich 486, 489; 280 NW2d 453, 454 (1979), the Supreme Court construed the term 'hearing' as used in 1937 Ex Sess PA 4, supra, art 4, Sec. 4(e), to encompass only the taking of testimony, stating:

'We agree with the Court of Appeals that the above statute requires the school board to furnish the teacher with a copy of the transcript within ten days after the conclusion of the taking of testimony, i.e., the 'hearing.' See Rehberg v Board of Education of Melvindale, Ecorse Twp School District No 11, Wayne County, 330 Mich 541, 547; 48 NW2d 142 (1951). . . .'

The Tenure Commission is required to conduct its hearing as provided in this section. This limited requirement may not be read, however, to impose a duty upon the Tenure Commission or its hearing officer to furnish a transcript of the hearing before the Commission.

1937 Ex Sess PA 4, supra, art 4, Sec. 4 and art 6, Sec. 1 have been in force in essentially their present form for over 40 years. This office has been advised by officials of the Tenure Commission that it has never construed these sections as requiring it to furnish free transcripts of its hearings and that it has, in fact, always charged for such transcripts. The construction given to a statute by persons charged with the duty of executing it is entitled to consideration and should not be overruled without cogent reasons. The legislature, which is presumably aware of this construction, has amended the statute on ten separate occasions but has never amended the language under consideration in any material respect. The silence of the legislature can only be construed as consent to the accuracy of this construction. Magreta v Ambassador Steel Co. 380 Mich 513; 158 NW2d 473 (1968).

In addition, this construction is wholly consistent with the Administrative Procedures Act, Sec. 86(2), 1969 PA 306, MCLA 24.201 et seq; MSA 3.560(101) et seq, which also applies to the State Tenure Commission. Henderson v Memphis Community School District, 57 Mich App 770; 226 NW2d 725, lv app den, 394 Mich 763 (1975). Section 86(2) provides:

'Oral proceedings at which evidence is presented shall be recorded, but need not be transcribed unless requested by a party who shall pay for the transcription of the portion requested except as otherwise provided by law.'

In addition, review of the Department of Education appropriation acts, e.g., 1978 PA 395, reveals that the legislature has never appropriated any money to the Tenure Commission to cover the expense of preparing and furnishing transcripts.

It is, therefore, my opinion that the State Tenure Commission is not required by the teacher tenure act, 1937 Ex Sess PA 4, supra, to provide a transcript of a hearing before the Commission or its hearing officer to either party unless the party requests and pays for the transcript.

Frank J. Kelley

Attorney General

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