Commissioner's Decisions

Commissioner's Decisions A School Law Project Web Page

William Allan Kritsonis, PhD

W.C. Hayes SPED Teacher –AB Program Katy ISD [email protected]

Introduction | Case 1 | Case 2 | Case 3 | |Case 4 ?| Case 5? | Credits & References|

Introduction The Commissioner of Education and the 15 elected members of the State Board of Education (the "Board") oversee the public education system of Texas in accordance with the Texas Education Code.? Currently, Dr. Shirley J. Neeley is the Texas commissioner of education as Gov. Rick Perry appointed her on Jan. 12, 2004.? As commissioner, she serves as the head of the Texas Education Agency, which oversees 1,037 school districts and about 200 charter schools. The Commissioner appoints administrative law judges to hear appeals in which the Commissioner has jurisdiction as provided by the Texas Education Code.? Like a judicial forum, the Commissioner lacks authority to hear any appeal that where it does not have jurisdiction.?

Case One Stansell v. Dallas ISD Docket No. 039-R2-1203

Litigants Petitioner:? Roderick Stansell? Respondent:? Dallas Independent School District (the "District")

Background Respondent employed Petitioner as a non-certified classroom teacher under a probationary term employment contract for the 2002-03 school year.? At the time his employment, Petitioner was in the process of completing his final certification requirements under a deficiency plan.? Beginning in December 2003, Respondent's administration notified Petitioner on at least three different occasions that Petitioner needed to provide his Texas teacher certificate to the District on or before June 30, 2003.? Without providing this certification, the District made it clear that Petitioner's employment would be terminated.? Despite this instruction, Petitioner failed to provide evidence of his certification.? Consequently, on June 11, 2003, the District notified that

his failure to provide his certification would result in the termination of his probationary contract on June 30, 2003.? Petitioner complains of the District's action regarding the termination of his employment.? Specifically, Petitioner argued that (1) the District failed to give him written notice of its decision not later than the 45th day before the last day of instruction in compliance with section 21.103 of the Texas Education Code and (2) that the board's subcommittee improperly considered extra-record evidence in making its decision.? Nothing in the record indicates that the District's Board of Trustees ever gave Petitioner written notification of the proposed termination.?

Decision The Administrative Law Judge (the "ALJ") appointed by the Commissioner dismissed the Petitioner's appeal for lack of jurisdiction.? Although the ALJ could not determine what process the District used to terminate the contract, she found that she did not have to make such determination.? First, the Commissioner can only hear issues arising from the termination of the probationary contract during the contract term.? Because the ALJ could not determine what process was used and because the District failed to give Petitioner written notice as required the Education Code, the appeal was dismissed.? Finally, the ALJ determined that because the District's action to terminate Petitioner's probationary contract could not be appealed under chapter 21 of the Education Code, then the Commissioner also lacked jurisdiction over the extra-record evidence claim.? As such, that claim was also dismissed.?

Dicta Essentially, the ALJ did not determine whether the validity of the Petitioner's termination.? In fact, it found that the Education Code did not give the Commissioner the authority to make such a decision.? Instead, the ALJ simply determined that the Commissioner did not have jurisdiction to hear the appeal.? The findings indicate that the Petitioner filed his appeal in the wrong forum.?

Implications To terminate a probationary contract at the end of the contract term, little process is required.? Because no property right is at stake, a board is only required to (1) determine that ending the contract is in the board's best interest; and (2) notify the teacher no later than the 45th day before the last day of instruction.? On the other hand, discharge during a probationary contract term implicates a property interest.? As such, discharge can only occur if good causes exist.? Link to case http://www.tea.state.tx.us/commissioner/2003/0391203.DOC

Case Two Flowers v. Port Athur ISD

Docket No. 088-R10703

Litigants Petitioner:? Anthony Flowers Respondent:? Port Arthur

Background The District employed the Petitioner under a teacher term contract.? The District's superintendent gave Petitioner written notification that the board voted to propose the nonrenewal of the teacher term contract.? The letter indicated that the nonrenewal was based on the fact that Petitioner (1) was not certified; (2) did not possess a teaching permit and (3) did not meet the minimum qualifications for a permit based on his grade point average.? Petitioner argued that the District failed to prove these allegations and subsequently

appealed the District's decision to nonrenew his teacher term contract.?

Decision The ALJ, appointed by the Commissioner, dismissed the appeal for lack of jurisdiction. Essentially, the ALJ determined that Petitioner never had a valid employment contract because he did not possess a valid teaching certificate.? And without a valid contract, the Commissioner cannot hear any issues surrounding his termination.?

Dicta This case demonstrates that the Commissioner has limited powers that are only provided by the Texas Education Code.? However, the ALJ indicated that even the Commissioner had jurisdiction to hear the appeal, the termination would have been proper because the Petitioner's contract was void because he did no have a valid teaching certificate.?

Implications This case demonstrates that a contract between a school district and an educator who does not possess a valid certificate is void as a matter of law.? It also demonstrates that you will also be supported when you follow the proper due process procedures.

Link to case http://www.tea.state.us/commissioner.2003/088703.DOC

Case Three

Texas Education Agency v. Swanson Docket No. 082-PS-703

Litigants Petitioner:? Texas Education Agency, Driver Training Division Respondent:? Ethel Swanson

Background The TEA sought to assess penalties against the Respondent for improperly operating a driving school.? The TEA also asked that the Respondent not be allowed to enroll any new students and sought to close the driving school once the current students completed their classes.?

Decision The ALJ found that the Respondent was merely an employee of the driving school—not the owner.? Without any ownership interest in the school, the TEA could neither assess any penalties against Respondent nor could the TEA close the school.? In other words, the TEA filed its grievance against the wrong party and the case was dismissed for lack of jurisdiction.

Dicta This is a due process case.? The ALJ’s findings and conclusions clearly indicate that even the Respondent secretly owned the driving school; the actual holder of the TEA must notify the true owner and give that person the right to be heard on the allegations.?

Implications This case demonstrates that when filing a grievance or a lawsuit that you must include the proper parties. Link to case http://www.tea.state.us/commissioner/2003/082703.DOC

Case Four Nugent v. Dallas ISD Docket No. 052-R2-102

Litigants

Petitioner: ?Kathleen Nugent Respondent:? Dallas Independent School District

Background Respondent employed Petitioner under a written employment contract; however, the contract was not a Texas Education Code Chapter 21 contract.? For reasons unknown, the District filed a grievance concerning the nonrenewal of Petitioner's contract.? This grievance was consolidated with an earlier grievance concerning being placed on probation.? Petitioner argued that the nonrenewal of her contract was improper because (1) the District failed to provide her with the required type of hearing; (2) the District failed to appraise her work in violation of the policy; and (3) the District failed to record the hearing that the board conducted.? In response, the District asserted that (1) Petitioner had contracted away her right to contest the nonrenewal; (2) the Petitioner did not have a property interest; and (3) the District followed proper procedures when the board conducted the hearing.?

Decision The ALJ determined that although Petitioner did not have a chapter 21 contract, the Commissioner has jurisdiction over the contract because it involved monetary harm.? The ALJ also found that despite the fact that the contract included language that the board's decision as to nonrenewal "is final and may not be appeal," school district cannot contract our of the Education Code.? As such, Petitioner did not waiver her ability to appeal the board's decision.? Finally, the ALJ found that because the District failed to tape record the evidentiary portion of the Petitioner's grievance, all of the Petitioner's factual allegations must be taken as true.? Consequently, the ALJ had to conclude that Petitioner was not given a proper hearing and remanded the case back to the District with instructions to provide Petitioner with the proper grievance process for property or liberty interest hearings.??

Dicta This case shows the importance of the Texas Education Code and the Commissioner's commitment to upholding the same.? In dicta, the ALJ said "to allow districts to offer employment contracts that took away rights guaranteed by the Texas Education Code would make the Texas Education Code a compellation of suggestions."? Likewise, the ALJ ?pointed out the importance of a district strictly following the grievance procedures in terminating employment and without strict compliance, it decisions would not be upheld.?

Implications This case demonstrates that it is essential that districts follow the proper procedures in regards to due process and teacher assessment. ?Districts can not nonrenew a contract if these things are not done properly.

Link to case http://www.tea.state.us/commissioner/2002/052102.DOC

Case Five Currie v. Commissioner of Education Docket No. 003-R2-982

Litigants Petitioner:? Jimmie Currie Respondent:? Commissioner of Education, El Paso Independent School District, The State of Texas

Background Petitioner appeals the decision of the El Paso ISD to terminate her employment contract.? A hearing was conducted before a hearing officer appointed by the Commissioner, who recommended to the Commissioner that Petitioner's appeal be denied.? No party filed an exception to the recommendation.? El Paso ISD decided to terminate Petitioner's employment contract based on the grounds that Petitioner lacked discipline and authority in her classroom.? The evidence indicated that Petitioner experienced serious student discipline problems in her classes including, but not limited to vulgar language, students visiting with each other, students rooming the classroom, and throwing objects in class.? Despite the administration counseling on the need for Petitioner to control her classroom, problems continued.?? Petitioner appeals the termination arguing the District did not properly advise her of her performance and that her classes were too large to handle.?

Decision The Commissioner found that the termination of the Petitioner's employment was lawful.?

Dicta The Commissioner found that the District's administration made numerous efforts to assist Petitioner in improving the quality of her discipline and instruction.? As such, her argument that she was not on sufficient notice of her deficiencies was without merit.? Additionally, the evidence established that the administration had actually suspended many of her students based on her referrals and that her classes were not crowed.?

Implications

This case clearly demonstrates that teachers must keep control over their classrooms.? Essentially, the Commissioner found that control directly influences the quality of discipline and instruction.? Link to case http://www.tea.state.us/commissioner/1982/003982.DOC

Credits & References Kemerer, F., & Walsh, J. (200). The Educator’s Guide to Texas School Law. Austin, TX: University of Texas Press. www.tea.state.tx.us/commissioner/ Thank-you to Demetra Liggins for her encouragement. Last updated on April 13, 2005. Based on a template from The WebQuest Page