STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5708

May 15, 1980

TEACHERS:

Tenure

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:

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:

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:

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:

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:

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