Both Public Act 102 and Public Act 103 impact the way districts make personnel decisions. Traditionally, school districts have agreed that seniority will be the basis for decisions regarding which teachers will be laid off, recalled or involuntarily transferred to a different position within the district. This “last in, first out” policy means that teachers with less experience are automatically laid off first, regardless of performance.
Public Act 102 states that “individual performance” will be the “majority factor” when it comes to decisions regarding the layoff and recall of teachers. The law does allow for seniority to be used as a tiebreaker if “all other factors distinguishing those employees from each other are equal.” In addition, Public Act 103 specifies that the development of layoff, recall and transfer policies are prohibited subjects of bargaining.
Among the surveyed districts, Public Act 102’s allowance to use seniority as a tiebreaker appears to have been used widely to preserve seniority-based language. Some districts have language that appears to define “equal” very broadly, suggesting that the vast majority of teachers could be considered “equal,” and seniority would still be the de facto method for making personnel decisions. Of the 130 contracts agreed to after the 2011 reforms took effect, all but one defined seniority or maintained language that said seniority will dictate some part of layoff, recall or transfer decisions.
As mentioned above, in many cases, the districts that preserved seniority-based personnel policies slightly modified previous contract language to apply these policies only to employees not included in the 2011 reforms, but still covered under the teachers union contracts.
This bears mentioning since these districts are continuing to make seniority-based retention and placement decisions for other non-teaching staff members — exactly the behavior the legislature hoped to stop for teachers. Using a personnel decision-making system that rewards effectiveness rather than years on the job could be just as useful for these non-teaching employees as it could be for classroom teachers.
Since district officials can, according to the Michigan Association of School Boards, unilaterally strip out prohibited language, it is interesting that nearly every surveyed contract contains language regarding seniority-based policies. Districts may have kept this language in their contracts in an attempt to make it easier to revert back to the old system of personnel decision-making. If the 2011 reforms were ever changed or overturned, districts could just remove the small disclaimer stating the seniority-based policies only applied to non-teachers, and seniority would once again dictate teacher placement, layoff and recall decisions.
Though some districts did modify their language more extensively, many collective bargaining agreements made clear that seniority would still be used as a factor to determine layoff, recall and transfer decisions in any manner that could be considered permissible under the law. Most districts continue to tally seniority, even if it no longer applies to staffing decisions for teachers.
Some districts continue to use seniority to make decisions about hiring new teachers. Godwin Heights, in a contract signed in September 2012, included an interview form that noted, “In the event candidates interviewing for said position are considered to be equal … seniority shall be utilized to determine the successful candidate.” This may still be technically legal, but excerpted here to show just how much emphasis the district continues to place on seniority.
For supplemental positions, such as coaching, the contract states: “In the event a supplemental [position] … does not require specific training, it will not be necessary to conduct an interview. The position will be awarded by: 1) seniority [within the position] and 2) service years in the district.”
Other districts appear to have simply left language regarding seniority-based personnel policies completely unchanged. The West Ottawa district’s teachers union contract lays out a process for filling vacancies that is simply a process of offering the position to the most senior teacher who applies. For other open teaching positions, aside from teachers who received an “unsatisfactory” rating on their most recent performance evaluation, the contract notes that positions will be filled in order of seniority.
During the 2011-12 school year, West Ottawa rated just five teachers as “minimally effective” or “ineffective” — meaning that for 99 percent of teachers, seniority will control who will be assigned to a vacancy. This is an example of defining “equal” quite broadly as mentioned above. For layoffs, the contract states that non-certificated teachers will be laid off first, followed by probationary teachers, and then tenured teachers in order of seniority. If two employees have worked the same number of years, seniority will be determined by the “highest last four digits of their social security numbers.”
The L’Anse Creuse district follows a similar policy. The district’s contract states:
The first teachers laid off will be those evaluated as ineffective. The next laid off will be those evaluated as minimally effective two consecutive years of more [sic]. All others will be considered as equals and length of service or tenure status shall be the tiebreaker.
As in West Ottawa, 99 percent of L’Anse Creuse teachers were rated effective or highly effective — meaning that layoffs at the district will be primarily based on seniority, despite the 2011 reforms.
The West Ottawa district did attempt to deal with the requirements of Public Act 103 with a “letter of agreement,” which was signed on Aug. 24, 2011. The letter states that “substantial revisions” would be needed to make the collective bargaining agreement “consistent” with Public Act 103. Instead of modifying the contract, however, the letter states that “If any provision…is inconsistent with the Revised School Code, the Michigan Teachers’ Tenure Act or the Public Employment Relations Act, those statutes will prevail and the inconsistent or conflicting provisions…will not be followed or enforceable.”
In cases such as those highlighted above, school leaders and employees are left to interpret collective bargaining agreements with seemingly conflicting provisions. West Ottawa principals are also apparently expected to interpret state law in order to understand how to make legal staffing decisions.