August 18, 2011

Grand Haven Community Center
421 Columbus Avenue, Grand Haven, Michigan 49417 • 616.842.2550

Session I – 8:30 am to 11:30 am

Session II – 1:00 pm to 4:00 pm

Topics Include But Are Not Limited To:

Tenure Reform – “Arbitrary and Capricious”
Revised School Code – Evaluations for Effectiveness
Collective Bargaining Reform – Seven New Prohibited Subjects of Bargaining
These workshops are offered at no charge for our retainer clients for up to two attendees. The fee for additional attendees for retainer clients is $25 each, and for non-retainer attendees is $50 each.

Registration for this event is closed

Please see our Resources pages for other information that relates to our events.

 The MDE will be receiving public comment via fax, email or in written form until September 23, 2011 at 5:00 p.m.  This is an amended date.  It is important that  school districts provide comments to the MDE as they devise the standards that school districts will be required to follow. Please be sure to provide your comments by that date.

http://www2.ed.gov/about/offices/list/osers/news.html

In addition, the U.S. Department of Education has issued a Notice of Proposed Rule Making (NPRM) with respect to certain regulations implementing Part B of the IDEA.  Specifically, the Department intends to issue proposed regulations regarding when a state or local educational agency seeks to use a child’s or parent’s public benefits or insurance (e.g., Medicaid) to pay for Part B services.  The NPRM can be accessed on the US DOE’s website through the same link as the Part C regulations.

The School Law Attorneys of Scholten Fant are presenting a seminar on Thursday, August 18, 2011, to provide information and guidance regarding the new Tenure Reform legislation, and an ample opportunity for questions will be available then as well. (Tenure Reform Seminar Registration Form) The topics to be addressed in the seminar will include, but not be limited to, the following.

Tenure Reform

• New “Arbitrary and Capricious” Standard 
• Revised Definition of “Demote”
• Changes to Probationary Period
• Leaves of Absence
• Procedural Changes

 Revised School Code Amendments

• Effectiveness Rules Over Seniority in Personnel Decisions and Reductions in Force
• Evaluations to Measure Effectiveness
• Governor’s Council on Educator Effectiveness
• Notice of Ineffective Teachers

 Collective Bargaining Reform: Seven New Prohibited Subjects of Bargaining

• Teacher Placement
• Reductions in Force / Elimination of Positions
• Performance Evaluations
• Discharge and Discipline of Tenured Personnel
• Classroom Observations
• Merit Pay
• Notice of Ineffective Teachers

The seminar will consist of two identical workshops held on August 18, 2011 at the Grand Haven Community Center, located at 421 Columbus Avenue. The same content will be covered in each workshop, allowing school administrators to attend either the morning or afternoon session based on what fits best with each administrator’s schedule. Registration for the morning Tenure Reform workshop begins at 8:00 a.m., with the workshop taking place between 8:30-11:30 a.m.  Registration for the afternoon Tenure Reform workshop begins at 12:30 p.m., with the workshop taking place between 1:00-4:00 p.m.

The workshops are offered at no charge for Scholten Fant retainer clients for up to two attendees.  The fee for additional attendees is $25 per person for retainer clients.  The fee for non-retainer attendees is $50 per person.  

A seminar registration form is available here (Tenure Reform Seminar Registration Form) or call 616-842-3030 and request a seminar registration form to be e-mailed to you.

“It is my opinion, therefore, that the Michigan Medical Marihuana Act, Initiated Law 1 of 2008, MCL 333.26421 et seq, prohibits the joint cooperative cultivation or sharing of marihuana plants because each patient’s plants must be grown and maintained in a separate enclosed, locked facility that is only accessible to the registered patient or the patient’s registered primary caregiver.”

This Opinion (which can be found here) is consistent with the advice we have provided over the last year.  We are expecting a decision in People v McQueen, an appeal from the Isabella County Circuit Court involving patient to patient sales, to be issued by the Michigan Court of Appeals in the near future, as oral argument was held on June 7, 2011.

In People v King, http://www.michbar.org/opinions/appeals/2011/020311/48045.pdf, the Court of Appeals held that a dog kennel – a moveable six foot tall, chain-link fence with a lock on the gate but no cover on the top – did not constitute an “enclosed locked facility.” As a result, the defendant, who possessed a valid medical marihuana registry card from the State, was not entitled to the statutory affirmative defense because he did not comply with MMMA.  What is perhaps most interesting about this case is that it illustrates how easily susceptible the vague provisions of the MMMA are to differing interpretations, as both the majority opinion and the dissenting opinion used legitimate rules of statutory construction to come to opposite conclusions. 

Section 4 of the MMMA provides that qualified patients who possess a valid registration card will not be subject to arrest, prosecution, or penalty in any manner provided that the qualified patient possesses no more than 2.5 ounces of usable marihuana, and no more than 12 marihuana plants kept in an “enclosed, locked facility” if the patient has not specified a primary caregiver.  The MMMA defines “enclosed, locked facility” as “a closet, room, or other enclosed area equipped with locks or other security devices that permit access only by a registered primary caregiver or registered qualifying patient.”  The MMMA does not further define “enclosed.”

The majority opinion began with the premise that controlled substances, including marihuana, are considered to be harmful and prohibited by state law.  The majority opinion quoted from the People v Redding concurring opinion to state that the MMMA “does not create any sort of affirmative right under state law to use or possess marijuana.”  The majority opinion used the terms “narrow circumstances”, “very limited, highly restricted exception”, “narrowly tailored protections”, and “certain narrowly defined medical purposes” in describing the intent of the MMMA to provide protection from prosecution under state law for medical marihuana users. According to the majority opinion, strict compliance with the MMMA is necessary to assert the affirmative defenses of the MMMA. The majority opinion applied the doctrine of ejusdem generis (“the scope of a broad general term following a series of items is construed as including ‘things of the same kind, class, character, or nature as those specifically enumerated’”) and determined the opened-top, moveable, chain-link dog kennel is not of the same kind or character as a closet or room. The majority opinion noted that the intent of the restriction is to ensure that the marihuana will be inaccessible to anyone other than a licensed grower or a qualifying patient, in order to prevent access by the general public, especially juveniles.

In contrast, the dissenting opinion pointed out that the words of an initiative law should be given their ordinary and customary meaning as they would have been understood by the voters.  Because the MMMA does not define the term “enclosed”, the dissenting opinion applied Webster’s Dictionary definition of “enclose” (which includes: “to surround, as with a fence; to enclose land”) and determined that the dog kennel sufficed regardless of whether there was a top/ceiling or whether the kennel could be moved. The dissenting opinion suggested that the police, the prosecutor, and the majority of the court were using the MMMA as a sword to attack persons who have legitimate medical reasons to grow and use marihuana, rather than using it as a shield to protect such persons, as the dissenting opinion believes was originally intended by the voters.

Both the majority opinion and the dissenting opinion in King used legitimate rules of statutory construction, yet came to opposite conclusions. Until we have more binding guidance from the courts, qualified patients, primary caregivers, and even municipalities should proceed with caution regarding the MMMA. Patients and caregivers who do not clearly and unambiguously follow the strict requirements of the MMMA, as may be interpreted differently by different prosecutors and judges, face the possibility of state or even federal prosecution. Municipalities who incorporate the vague provisions of the MMMA into their own local licensing or zoning ordinances run the risk of having to pay for costly litigation as test cases.

Public Act 336 of 2010 which took immediate effect on December 21, 2010, amends Section 1249 of the Revised School Code, the provision added last year to require public school districts to adopt and implement a performance evaluation system of teachers and administrators required by the recent “Race to the Top” legislation.  As we explained in our workshops last Spring, Section 1249 requires that a school district’s performance evaluation system be “rigorous, transparent, and fair,” and be based, at least in part, on “using multiple rating categories that take into account data on student growth as a significant factor.”  Section 1250 of the Revised School Code requires school districts to implement and maintain a method of compensation for teachers and administrators that includes job performance “as a significant factor” and requires the assessment of job performance to incorporate “a rigorous, transparent and fair evaluation system that evaluates … performance at least in part based on data on student growth as measured by assessments and other objective criteria.”  Section 1250 provides that implementing the new compensation method based on performance is not required until the expiration of an existing collective bargaining agreement that prevented compliance with the compensation method.  The amendment to Section 1249 not only adds a similar provision for adopting and implementing the performance evaluation system (not required until the expiration of a current collective bargaining agreement that prevents compliance with the performance evaluation system), but it also extends the timeframe to give school districts until September 1, 2011.  Unfortunately, the legislature did not amend Section 1250 to likewise extend the date for compliance until September 1, 2011. 

Senate Bill 1509 as originally introduced by Senator Wayne Kuipers would have required the Michigan Department of Education to work with organizations that represent school employees and management to develop one or more model evaluation systems.  That provision, however, was removed prior to adoption.  Instead, school districts and unions will be on their own trying to agree on a performance evaluation system that is not only rigorous, transparent, and fair, but is based in part on student growth data.

ALLENDALE TOWNSHIP —
Medical marijuana is legal, but selling it from storefronts might not be.

That was the word from a lawyer who spoke to representatives from around 20 different municipalities who gathered Wednesday night to hear an attorney offer up facts on how to regulate medical marijuana.

Allendale Township Hall was at near capacity with more than 100.

Dan Martin from the law firm Scholton Fant in Grand Haven was invited by Ottawa County planners. He agreed to speak on the topic pro bono.

Many in attendance are taking a wait-and-see approach, like Deb Diepenhorst from Cannon Township in Kent County. The township is in the process of a six-month moratorium on marijuana-based businesses that trustees like Diepenhorst are planning to renew at their next meeting.

“Do some research, find out what other people are doing,” said Diepenhorst.

Others, like Croton Township planning commission member Jim Squires in Newaygo County, aren’t sure what they would do if someone wanted to open a dispensary there.

“That would be a real good question,” Squires said. “The planning commission would have to take a real hard look at it, because we really haven’t done anything yet.”

Medical marijuana is legal under state law, but illegal under federal law. Some communities have banned sales outright, as Wyoming did earlier this week. Such decisions are being challegned in court.

Martin says such bans are a bad idea, though he doesn’t think the law intends for storefront sales.

“It doesn’t say whether qualified caregivers can come together collaboratively to form co-ops or dispensaries,”said Martin. “But it seems to imply that there’s this intimate relationship between the caregivers and their patients, and it’s very confidential.”

He means one-on-one meetings, which also may also be challenged.

Martin just wants local communities to make informed decisions.

“Part of tonight’s training is to help people understand that, both from the municipalities perspective, the clients that I represent, and others out there who in my opinion are getting some misinformation,” said Martin.

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