Sylvia Lewis v. Austin Independent School District and Felipe Alanis, Commissioner of Education of the State of Texas

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-02-00325-CV

Sylvia Lewis, Appellant

v.

Austin Independent School District and Felipe Alanis, Commissioner of Education

of the State of Texas, Appellees

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT

NO. GN002575, HONORABLE W. JEANNE MEURER, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

This is a teacher term-contract nonrenewal case. The Austin Independent School

District ("Austin ISD") Board of Trustees voted not to renew the term teaching contract of appellant

Sylvia Lewis as principal of Lyndon Baines Johnson High School. The Commissioner of Education

affirmed the school board's decision. Lewis sued Commissioner of Education Felipe T. Alanis (1) and

the Austin Independent School District for judicial review of the commissioner's order affirming the

decision by the school board to nonrenew Lewis's teaching contract under the Term Contract

Nonrenewal Act ("TCNA"). Tex. Educ. Code Ann. §§ 21.201 -.213 (West 1996). The district court

upheld the commissioner's order.

On appeal, Lewis contends in four issues that she did not receive a fair hearing

because the administrative law judge ("ALJ") who presided over Lewis's administrative appeal was

not impartial; the commissioner's decision was clearly erroneous because he failed to provide Lewis

with annual performance evaluations or a warning of contract nonrenewal as required by the Texas

Education Code; and the commissioner's decision is not supported by substantial evidence. Because

we hold that the commissioner's decision is supported by substantial evidence and is not erroneous,

we affirm the judgment of the district court.

FACTUAL AND PROCEDURAL BACKGROUND

Lewis's Employment with Austin ISD

We will draw on the commissioner's findings of fact in his decision for our discussion

of the factual background because the findings are unchallenged on appeal. Lewis was employed

by Austin ISD effective July 1, 1996, and then under a three-year contract beginning with the 1997-1998 school year. She was assigned as the principal of Lyndon Baines Johnson High School, a

school located in a low-to-moderate income neighborhood in East Austin. The LBJ school also

serves as a "school within a school" because the district's Science Academy, a magnet school

designed to draw gifted and talented students from all geographic areas of the school district who

are interested in science and technology, is located on the school's campus.

Lewis arrived at Austin ISD with excellent credentials and an exemplary record of

achievement in education. After receiving a master's degree in education from Ohio State

University, she earned board certifications as an advanced professional educator in reading, a

secondary school principal, and a mid-management administrator. Before her arrival at the LBJ

school, she served as a vice principal at a high school and as principal of a talented and gifted magnet

school as well as a science and math technology middle school.

For her first year with the school district, Lewis received a very favorable evaluation.

In September 1997, Lewis executed a three-year contract. Shortly thereafter, Lewis received a

memorandum from her supervisor, area superintendent Dr. Glenn Nolly, expressing concern that

parents were complaining that they were having difficulty getting in touch with her. In March 1998,

Nolly sent a memorandum to Lewis concerning a series of restroom fires at the school that had not

been reported to him. Throughout 1998 and 1999, Nolly communicated with Lewis concerning

various problems at the school and deficiencies in her job performance. A primary source of

controversy was the perceived preferential treatment by the district of the science academy at the

expense of the neighborhood students. The district commissioned a study to address problems in

balancing the magnet school with the comprehensive school, which seemed to be a major focus of

the district's growing dissatisfaction with Lewis. In May 1999, Nolly met with Lewis, outlining

complaints he had received that she had failed to address student disciplinary problems and failed

to communicate effectively with staff, parents, and students. Nolly told Lewis that "if she wanted

to remain at LBJ, these things needed to be changed right away." In June 1999, Nolly placed Lewis

on a professional improvement plan designed to improve her communication and leadership skills.

Lewis objected to the plan. In October 1999, Nolly met with Lewis to bring continuing concerns to

her attention, again giving her an opportunity to resolve them.

After a mid-year review in January 2000 to assess the progress of the performance

improvement plan, on March 3, 2000, Nolly determined that Lewis had not improved adequately in

her areas of deficiency and recommended that Lewis's contract not be renewed. By letter dated

March 28, 2000, Superintendent Pascal Forgione notified Lewis that he recommended nonrenewal

of her contract for the 2000-2001 school year for the following reasons:

1. Inefficiency or incompetency in performance of duties;

2. Failure to comply with such requirements as the Board may prescribe for

achieving professional education, improvement and growth; and

3. For other good cause as determined by the Board and based upon

recommendation of the Superintendent, good cause including, but not limited

to, the failure of a professional to meet the accepted standards of conduct for the

professional employee as generally recognized and applied to the Austin

Independent School District.

Acting on the superintendent's recommendation, the school board notified Lewis of proposed

nonrenewal. See Tex. Educ. Code Ann. § 21.206 . Lewis timely requested a hearing before the

board. At the conclusion of the hearing on May 24, 2000, the board voted 7-1 to nonrenew Lewis's

contract.

Lewis filed a petition for review with the commissioner alleging that the board's

decision was arbitrary, capricious, unlawful, and not supported by substantial evidence. See id.

§ 21.209. The commissioner denied the appeal. Thereafter, Lewis appealed the commissioner's

decision to the district court, which affirmed the commissioner's order.

Nonrenewal Policies

Texas teachers with experience may be employed under either continuing contracts

or annually renewable term contracts. Compare id. §§ 21.151-.160 with §§ 21.201-.212 (West

1996). Most teachers are employed under term contracts. See Grounds v. Tolar Indep. Sch. Dist. ,

856 S.W.2d 417, 418 (Tex. 1993). The TCNA was enacted in 1981 to provide term contract teachers

with procedural protections. (2) Id. ; Central Educ. Agency v. George West Indep. Sch. Dist. , 783

S.W.2d 200, 201-02 (Tex. 1989).

The TCNA requires automatic renewal of a teacher's term contract unless the school

district complies with certain statutory prerequisites. See Tex. Educ. Code Ann. §§ 21.201 -.213.

Under the TCNA, employment policies adopted by the board of trustees of a school district "must

include reasons for not renewing a teacher's contract at the end of the school year." Id . § 21.203(b).

A teacher must be provided with notice of the reason for the proposed nonrenewal and given an

opportunity for a hearing. Id. §§ 21.206-.207.

Nonrenewal Hearing and Appeal Procedure

When a teacher requests a hearing after receiving notice of proposed nonrenewal, as

here, the school board may conduct its own hearing under section 21.207(b) and render its own

decision under section 21.208(b). Id. §§ 21.207(b), .208(b). A teacher aggrieved by the board's

decision may appeal to the Commissioner of Education. Id. § 21.209. The commissioner reviews

the board's decision and may not substitute his or her judgment for that of the board "unless the

board's decision was arbitrary, capricious, unlawful, or not supported by substantial evidence." Id.

Either party may then appeal the commissioner's decision to district court. Id .

§ 21.307 (West 1996). The court reviews the evidentiary record made at the local board level and

any evidence taken by the commissioner, but may not take additional evidence. Id . § 21.307(e).

Here, the only evidence taken was before the board at the public hearing. The court may not reverse

the commissioner unless the findings were not supported by substantial evidence or unless the

commissioner's conclusions of law were erroneous. Id . § 21.307(f).

The decision subject to our review is that of the commissioner. Id . § 21.307(a);

Montgomery Indep. Sch. Dist. v. Davis , 34 S.W.3d 559, 562 (Tex. 2000). This Court reviews the

commissioner's order under a substantial evidence review. Tex. Educ. Code Ann. § 21.307 (f);

Davis , 34 S.W.3d at 562 ; Hightower v. State Comm'r of Educ. , 778 S.W.2d 595, 597 (Tex.

App.--Austin 1989, no writ). We must first determine whether the evidence as a whole is such that

reasonable minds could have reached the conclusion that the agency must have reached to take the

disputed action. Texas State Bd. of Dental Exam'rs v. Sizemore , 759 S.W.2d 114, 116 (Tex. 1988);

Ramirez v. Texas State Bd. of Med. Exam'rs , 995 S.W.2d 915, 919 (Tex. App.--Austin 1999, pet.

denied). The test is not whether the agency made the correct conclusion but whether some

reasonable basis exists in the record for the agency's action. Railroad Comm'n v. Pend Oreille Oil

& Gas Co. , 817 S.W.2d 36, 41 (Tex. 1991); Texas Health Facilities Comm'n v. Charter Med.-Dallas, Inc. , 665 S.W.2d 446, 452 (Tex. 1984). Nevertheless, we must ensure that the actions of the

school administration were not arbitrary and capricious.

For purposes of substantial evidence review, questions of statutory interpretation are

questions of law and are not entitled to a presumption of validity. Hightower , 778 S.W.2d at 597 .

But statutory construction by the administrative agency charged with the statute's enforcement is

entitled to serious consideration if the construction is reasonable and does not contradict the statute's

plain language. Dodd v. Meno , 870 S.W.2d 4, 7 (Tex. 1994). Thus, because of the commissioner's

expertise and experience, we give deference to his interpretation of the TCNA.

Austin ISD's Nonrenewal Policies

Local management and control of public schools is a legislative policy manifested

throughout the statutes concerning education. See Ysleta Indep. Sch. Dist. v. Meno , 933 S.W.2d 748,

752 (Tex. App.--Austin 1996, writ denied); Amarillo Indep. Sch. Dist. v. Meno , 854 S.W.2d 950,

954 (Tex. App.--Austin 1993, writ denied). School districts locally adopt the reasons to decline

renewal of teacher's term contracts. Grounds , 856 S.W.2d at 418 . By enacting the TCNA, however,

the legislature constrains school districts by requiring that those reasons be "preestablished," as a part

of the school's official policies, providing a "substantive limit" on a school district's decision to

nonrenew a term contract. Id. ; see Tex. Educ. Code Ann. § 21.203 (b).

The decision of a school district to nonrenew must be "predicated on one or more of

the previously established reasons." Grounds , 856 S.W.2d at 418 . Austin ISD adopted Board Policy

DDA(LOCAL), establishing the reasons for nonrenewing the term contract of a professional

employee. The three grounds listed in the superintendent's notice letter were among the reasons set

forth in the policy.

Commissioner's Findings of Fact and Conclusions of Law

The commissioner's decision contained findings of fact. Because Lewis has not

challenged the commissioner's findings of fact, we must "treat them as valid and subsisting facts by

which to judge the correctness of the [commissioner's] conclusions of law." Lone Star Greyhound

Park, Inc. v. Texas Racing Comm'n , 863 S.W.2d 742, 752 (Tex. App.--Austin 1993, writ denied).

Among the findings of fact issued by the commissioner as supported by substantial evidence in the

evidence presented to the board were the following:

2. Petitioner received a favorable evaluation in 1996-97, her first year with the

district. Petitioner's written evaluation for the 1997-98 school year was not

produced at the hearing. Dr. Glen Nolly, petitioner's supervisor and an area

superintendent, contends that he prepared an evaluation but that it is missing

from his files. Petitioner's evaluation for the 1998-99 school year noted

deficiencies in numerous areas.

3. From 1997-98 to 1999-2000, Nolly received numerous complaints regarding

petitioner. Nolly notified Petitioner of the complaints and provided her with

verbal and written corrective feedback. Many of the complaints alleged that

petitioner was not addressing student disciplinary problems and that she failed

to communicate effectively with staff, parents, students, and others about

important issues.

8. Petitioner had performance deficiencies that constituted grounds for nonrenewal

under DDA (LOCAL), including continuing problems with communication,

decision-making, and fostering a positive school climate despite opportunities

for remediation.

DISCUSSION

In her first issue on appeal, Lewis contends that the commissioner abused his

discretion in failing to recuse the agency ALJ who presided over the administrative appeal. Because

the ALJ had previously been employed by a law firm that had represented the school district, Lewis

urged that her impartiality was in question.

Rule 18a of the Texas Rules of Civil Procedure provides for the recusal of a judge

upon a motion filed ten days before the trial or hearing: "The motion shall be verified and must state

with particularity the grounds why the judge before whom the case is pending should not sit." Tex.

R. Civ. P. 18a(a). (3) If a party fails to comply with the rule, she waives her right to complain of the

erroneous denial of a recusal motion. In re Union Pac. Res. Co. , 969 S.W.2d 427, 428 (Tex. 1998).

The motion must be made "on personal knowledge and shall set forth such facts as would be

admissible in evidence provided that facts may be stated upon information and belief if the grounds

of such belief are specifically stated." Tex. R. Civ. P. 18a(a).

Lewis first raised the issue of recusal in a motion to vacate following the

commissioner's issuance of his decision. In an unverified motion to vacate, Lewis alleged that the

ALJ

should have been recused from further proceedings because her impartiality could

have reasonably been questioned in that the judge had a personal bias or prejudice

concerning the subject matter. In this connection, movant has reason to believe that

[the ALJ] was previously employed by the law firm McGinnis, Lochridge & Kilgore,

and during such employment, said law firm represented Austin Independent School

District ("AISD"). Therefore, her impartiality in deciding cases or making rulings

on legal issues could reasonably be questioned where AISD is a party before her.

The motion to vacate does not satisfy the dictates of the rule in any respect: it was untimely because

it was filed after the proceeding instead of ten days before the hearing; it was unverified; and it

further failed to particularize the grounds for recusal based on personal knowledge and facts that

would be admissible as evidence. Raising the glimmer of a conflict in an untimely and conclusory

manner is insufficient to invoke procedures under the rule. Because Lewis failed to comply with the

mandates of the rule, we hold that Lewis waived the issue of recusal.

Even apart from the lack of compliance with the rule, Lewis does not identify grounds

for which recusal is required. Her sole contention is that the ALJ previously worked for a law firm

that at one time had represented Austin ISD. There is no contention that the ALJ or her law firm

were employed on or had knowledge of the controversy at issue here. The record does not show that

the assigned ALJ had a bias or conflict of interest based on a prior attorney-client relationship. Other

than a conflict based on the ALJ's prior employment, Lewis does not state any other respect on

which the ALJ's "impartiality might reasonably be questioned." See Tex. R. Civ. P. 18b(2)(a).

Moreover, the board made the decision to nonrenew Lewis's contract. Thereafter,

the ALJ proposed a decision containing findings of fact and conclusions of law for the

commissioner's consideration. The commissioner upheld the board's decision to nonrenew Lewis's

contract. The ALJ did not receive evidence, nor did she conduct any proceedings. Without any

competent evidence establishing an issue of bias, the ALJ was not required to recuse herself or grant

the motion to vacate. See Vandygriff v. First Sav. & Loan Ass'n , 617 S.W.2d 669, 673 (Tex. 1981)

(court presumes agency performs duties in compliance with law). Lewis has not shown that her

claim of potential bias was supported by facts in the record or was likely to have led to an erroneous

decision on the part of the commissioner. See Tex. Educ. Code Ann. § 21.307 (g). We overrule

Lewis's first issue.

In her second issue on appeal, Lewis urges that the commissioner's decision was

erroneous as a matter of law because Austin ISD failed to provide Lewis with annual performance

evaluations, as required by law. Specifically, Lewis argues that she received only one performance

evaluation contrary to the annual evaluation requirement set forth in section 21.203(a) of the

education code. Because the statutory directive is mandatory, Lewis argues, the district's failure to

comply with the requirement constituted a violation of her contract.

Section 21.203(a) provides that local school boards must require a "written evaluation

of each teacher . . . at annual or more frequent intervals," which evaluation the board is obliged to

consider "before making a decision not to renew a teacher's contract if the evaluations are relevant

to the reason for the board's action." Id. § 21.203(a). Board Policy DDA(LOCAL) incorporates this

provision: "The Board shall consider the recommendations provided by the Superintendent, written

evaluations of the professional being considered for non-renewal if the evaluations are relevant to

the reason for the Board's action and the reasons for the recommendations."

The record shows that Lewis received a favorable evaluation for the 1996-97 school

year. Lewis's evaluation for the 1997-98 school year was not produced at the hearing and is

therefore not included in the record. Dr. Nolly testified that he performed an evaluation at the end

of the school year and that he had an evaluation conference with Lewis, but that the document was

"missing from my file." In his decision, the commissioner found that Nolly's inability to produce

a written evaluation for Lewis for 1997-98 "is disconcerting." It is undisputed that Lewis received

an evaluation in June 1999 for the 1998-99 school year, although two slightly differing versions of

the evaluation are included in the record. Nolly testified that one version was complete and the other

incomplete because Lewis left the conference before it was over, presumably with a copy of the

incomplete version, and refused to sign the document.

Although Lewis urged on appeal that she had received no warning of nonrenewal, the

record demonstrates otherwise. Beginning in the 1997-98 school year, Nolly repeatedly notified her

of performance deficiencies, gave verbal and written corrective feedback, and presented her with

growth and improvement plans designed to improve her performance. In June 1999, Nolly issued

a performance improvement plan, a formal plan to address problems and plan for improvement.

Nolly presented the plan to Lewis in his office; Lewis refused to accept the plan and voiced her

disagreement with the problems articulated in the plan and the proposal for improvement. The

commissioner's findings of fact, for which there was ample evidence in the record, reflected the

continuing problems and the administration's efforts to address them.

We agree with Lewis's position that she is entitled to annual evaluations. Compliance

with statutory requirements is essential to the integrity of procedures regarding term contracts and

nonrenewal. Although annual evaluations are required, however, the statute also requires that the

board "must consider the most recent evaluations before making a decision not to renew a teacher's

contract if the evaluations are relevant to the reason for the board's action." Tex. Educ. Code Ann.

§ 21.203 (a) (emphasis added). Thus, the board must consider the most recent relevant evaluations.

The commissioner found that Lewis received her 1996-97 and 1998-99 evaluations,

and that her supervisor testified that he prepared her 1997-98 evaluation, but that it was missing from

his files. Lewis disputed that she received an evaluation for the 1997-98 school year. But Lewis's

remedy if she believed she did not receive a timely evaluation for the 1997-98 school year was not

to challenge the nonrenewal process, but to file a grievance in accordance with the district's

grievance policy. See Amarillo Indep. Sch. Dist. , 854 S.W.2d at 954 . Lewis obviously believes she

was treated unfairly by the district, but her remedy for a procedural deficiency was to file a timely

grievance when she became aware of the omission. Lewis did not file a grievance about her 1997-98

evaluation or any other evaluations.

Complaints of procedural irregularities in the appraisal process may not be resurrected

at the time of the contract nonrenewal process. We agree with the commissioner that allowing an

employee to contest a nonrenewal based on alleged procedural irregularities in the appraisal process

would interject issues that may not relate to the validity of the appraisal or the reasons for the

nonrenewal. In the absence of a showing that the 1997-98 evaluation was relevant to the board's

actions, the alleged deficiencies in the appraisal process do not establish that the commissioner's

decision is arbitrary, capricious, or unlawful. We overrule Lewis's second issue.

In her third issue on appeal, Lewis contends that there is not substantial evidence in

the record to support a finding by the commissioner that the Austin ISD board considered Lewis's

"most recent evaluations," as specified in section 21.203(a) of the education code. She also urges

that the board failed to consider the evaluations before notifying Lewis of the proposed nonrenewal

as required by its own policies. Substantial-evidence review is a limited standard of review. Davis ,

34 S.W.3d at 556 . As the commissioner correctly concluded, substantial evidence exists in the

administrative record to support the determination that the board did review Lewis's most recent

evaluation before voting to propose the nonrenewal of her contract. Finding of fact number two

reflected the existence of the evaluations in evidence before the board. In addition, the board had

before it the superintendent's notice of nonrenewal, which was sent to Lewis on March 28, 2000,

stating:

After consideration of your most recent evaluation and grounds for the

recommendation, the Board voted to approve my recommendation and directed me

to send you notice of the proposed nonrenewal of your three-year contract for the

2000-2001 school year pursuant to the Texas Education Code, Section 21.206.

Lewis did not object to the admissibility of the letter or challenge the statements contained therein.

Thus, the undisputed evidence at the hearing reflects that the board considered the most recent

evaluation and then voted to nonrenew. The superintendent's letter then followed the board's vote.

The findings and decision of the commissioner are presumed to be supported by substantial

evidence, and the burden is on Lewis to prove otherwise. Texas Health Facilities Comm'n , 665

S.W.2d at 453 . This she failed to do. We overrule Lewis's third issue on appeal.

Lewis next argues that she failed to receive notice that she was at risk for nonrenewal.

Although Austin ISD's local regulation directs the superintendent to advise all term contract

employees by the end of February if they are in jeopardy of nonrenewal, Lewis contends that she was

not notified in a timely manner of her possible nonrenewal. Specifically, she asserts that the

district's regulations "expressly require[] a conference with the principal by December 1 of the

current school year, and further impose[] a duty upon the superintendent to notify those principals,

whose contracts remain in doubt, during the month of February of the same school year."

The local regulations provide a schedule for appraisal of administrators: By December

1, evaluators "should begin conferences with staff members whose contracts are in question," and

during February, "any staff member whose re-employment remains in doubt should be so advised

by the Superintendent or designee." By its language, the regulation does not impose a duty to warn

or notify by a specified deadline. That these dates are guidelines is clear from the use of the word

"should" instead of a mandatory word such as "must" or "shall." In contrast to these discretionary

guidelines, other aspects of the schedule provide for required notice and are therefore mandatory.

Thus, the regulations require that the superintendent "shall notify" an administrative employee if the

district intends to hire him or her for the next school year, and "will send" a written notice to an

individual by April 1 that a new contract will not be offered; accordingly, on March 7, 2000, the

interim director of the Department of Human Resources sent Lewis a notice of nonrenewal with

reasons stated.

Nevertheless, the commissioner acknowledged in his decision that the district failed

to comply with its own regulations by not notifying Lewis by the end of February 2000 that her

contract might not be renewed. We agree with the commissioner that the failure to follow its

regulations "reflects negatively upon the administration and may lead to a lack of trust from

employees and the public." But we must also agree with the commissioner's conclusion that the

failure to timely inform Lewis of her possible nonrenewal does not warrant reversal of the board's

decision. Moreover, the record reflects that Lewis was aware in February that Nolly had

recommended her for nonrenewal. In a memorandum to Nolly dated March 6, 2000, Lewis advised

Nolly that the Director of Human Resources had advised her of the recommendation on February 29

when Nolly was on leave. Lewis was aware that her contract was in jeopardy before receiving the

statutory notice of nonrenewal from the board. Given the extensive communication and feedback

between Nolly and Lewis, the absence of a formal notification within the discretionary deadlines set

forth in the regulations does not result in a decision that is arbitrary, capricious, or unlawful.

Moreover, on March 28, 2000, Austin ISD timely issued Lewis the notice of proposed nonrenewal

as required by statute. Tex. Educ. Code Ann. § 21.206 (a). We may not reverse a decision of the

commissioner based on a procedural irregularity by the board unless the irregularity was likely to

have led to an erroneous decision by the commissioner. Id. § 21.307(g). We conclude that it did not.

The finding that Lewis had performance deficiencies that constituted grounds for nonrenewal was

amply supported by the record; she had notice of the deficiencies and the risk of nonrenewal. We

overrule Lewis's fourth issue on appeal.

CONCLUSION

Because the commissioner's decision was supported by substantial evidence and

because Lewis failed to demonstrate that his conclusions of law were erroneous, the district court

did not err in affirming the commissioner's decision. Accordingly, we overrule Lewis's issues on

appeal and affirm the judgment of the district court.

__________________________________________

Jan P. Patterson, Justice

Before Justices Kidd, B. A. Smith and Patterson

Affirmed

Filed: January 16, 2003

1. We have substituted the current Commissioner as the appropriate party. See Tex. R. App.

P. 7.2(a).

2. Act of May 25, 1981, 67th Leg., R.S., ch. 765, § 2, 1981 Tex. Gen. Laws 2847 , 2847

( amended 1984, 1987, 1995) (current version at Tex. Educ. Code Ann. §§ 21.201 -.211). For

purposes of the TCNA, the definition of "teacher" includes a principal. Id . § 21.201.

3. Appellees do not dispute the applicability of rule 18a to an ALJ. Further, the Texas Rules

of Civil Procedure apply to hearings before the commissioner. See 19 Tex. Admin. Code § 157.1 (b)

(2000).