STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5836

January 5, 1981

SCHOOLS AND SCHOOL DISTRICTS:

Deductions from salary of teachers for days not worked

Fringe benefits

The board of education of a school district may make deductions from the salary of a teacher for days not worked. The deduction is not limited to the cost of a substitute teacher.

A teacher appearing as a witness in a trial may not claim this constitutes a form of jury service entitling the teacher to any appropriate fringe benefits from the school district for jury service.

The Honorable Thomas J. Anderson

State Representative

The Capitol

Lansing, Michigan

You have requested my opinion on three questions which may be stated as follows:

By way of background information, you informed us in your letter that your constituent, a high school teacher, was subpoenaed to the Superior Court in North Carolina as a character witness for a defendant in a criminal trial. You further informed us that the defendant paid your constituent's transportation and hotel expenses. In addition, you indicated a school official told your constituent in advance that her authorized three business days would cover her absence and no loss of pay would be suffered. Upon returning to school after a two day absence, however, your constituent learned that she had lost two days pay because she had already used her three days of contractually authorized absence for other personal business. Your letter indicates that this type of absence is not covered by the provisions of the collective bargaining agreement with the teachers concerning jury duty.

Boards of education have only such powers as the legislature confers upon them either expressly or by reasonably necessary implication. Senghas v L'Anse Creuse Public Schools, 368 Mich 557; 118 NW2d 975 (1962).

The legislature has expressly required boards of education to employ teachers pursuant to individual written contracts. The School Code of 1976, 1976 PA 451, Sec. 1231; MCLA 380.1231; MSA 15.41231. Further, commonly boards of education enter into collective bargaining agreements with their teachers covering wages, hours and other terms and conditions of employment pursuant to 1947 PA 336, Sec. 15, MCLA 423.215; MSA 17.455(15). This express grant of authority clearly includes, by reasonably necessary implication, the authority of a board of education to make deductions from the salary of a teacher for days not worked when the teacher is absent in excess of the contractually authorized leave time.

Therefore, it is my opinion, that the board of education of a school district has the authority to make deductions from the salary of a teacher for days not worked when the teacher is absent in excess of the contractually authorized leave time.

Turning to your second question, it is my opinion that a board of education is not limited to deducting the cost of a substitute teacher from the salary of a teacher for days not worked when the teacher is absent in excess of the contractually authorized leave time since the two matters are not related.

In response to your third question, a jury has been defined as a body of persons sworn to declare the facts of a case as proved from the evidence before them or as a body of 12 persons duly summoned, sworn, and impaneled for the trial of issues joined between litigants in a civil action, or for the determination of facts adduced for and against those accused in criminal cases. 15 Mich Law and Practice, Jury, Sec. 1, p 2.

The term 'witness,' in its strict legal sense, means one who gives evidence in a cause before a court, and in its general sense includes all persons from whose lips testimony is extracted to be used in any judicial proceeding, including deponents and affiants as well as persons delivering oral testimony before a court or jury. People v Martin, 316 Mich 669, 672; 26 NW2d 558, 560 (1947).

From the above definitions, it is manifest that service as a juror is entirely separate and distinct from the role of being a witness in a criminal trial. Thus, being a witness is not a form of jury service.

In answer to your third question, it is my opinion that where a teacher is subpoenaed to an out-of-state court as a character witness for a defendant in a criminal trial, this does not constitute a form of jury service entitling the teacher to any appropriate fringe benefits from the school district for jury service.

Frank J. Kelley