The opinion
ACCEPTED
03-14-00629-CV
4570791
THIRD COURT OF APPEALS
AUSTIN, TEXAS
3/19/2015 4:31:50 PM
JEFFREY D. KYLE
CLERK
NO. 03-14-00629-CV
FILED IN
3rd COURT OF APPEALS
In The Court Of Appeals AUSTIN, TEXAS
For The Third Judicial District of Texas 3/19/2015 4:31:50 PM
Austin, Texas JEFFREY D. KYLE
Clerk
LOS FRESNOS
CONSOLIDATED INDEPENDENT SCHOOL DISTRICT
and MICHAEL L. WILLIAMS, Commissioner of Education,
State of Texas,
Appellants
v.
JORGE VAZQUEZ,
Appellee
On Appeal from the 419th Judicial District Court of Travis County, Texas;
Cause No. D-1-GN-13-003654; before the Honorable Scott H. Jenkins
APPELLEE'S
BRIEF
BRIM ARNETT & ROBINETT, P.C.
Mark Robinett
State Bar No. 17083600
2525 Wallingwood Drive, Bldg. 14
Austin, Texas 78746
Telephone: (512) 328-0048
Facsimile: (512) 328-4814
Email: mrobinett@brimarnett.com
Counsel for Jorge Vazquez
Oral Argument Conditionally Requested
TABLE OF CONTENTS
Page
Table of Contents i
Index of Authorities ii
Statement Regarding Oral Argument 1
Summary of the Argument 1
Standard of Review 4
Substantial Evidence 7
Arbitrary and Capricious 9
Argument 10
A. The District Offered no Credible Evidence against Mr. Vazquez 10
B. The Texas Rules of Evidence do have some bearing on the case.... 21
Conclusion.. 35
Prayer 37
Certificate of Compliance 39
Certificate of Service 39
Appendix 40
i
INDEX OF AUTHORITIES
Cases
Page
Board of Firemen's Relief & Retirement Fund Trustees of Houston
v. Marks,
150 Tex. 433, 242 S.W.2d 181, 183 (1951) 7
City of El Paso v. Public Utility Commission
883 S.W.2d 179, (Tex. 1994) 10
Cusson v. Firemen's and Policemen's Civil Service Commission
524 W.W.2d88, 90 (Tex.Civ.App.—San Antonio 1975, no writ) 8
Dodd v. Meno, 870 S.W.2d 4, 7 (Tex. 1994) 5, 7
Firemen's and Policemen's Civil Service Commission v. Brinkmeyer
662 S.W.2d 953, 956 (Tex.1984) 8
Gerst v. Goldsbuly
434 S.W.2d 665, 667 (Tex. 1968) 8
Gerst v. Nixon
411 S.W.2d 350, 360 n. 8 (Tex.1966) 10
Hix v. Tuloso-Midway ISD
489 S.W.2d 706, 711 (Tex.App.-Corpus Christi 1972-writ rerd, (n.r.e.).... 35
Johnson v. City of Fort Worth, 774 S.W.2d 653, 656 (Tex. 1989)................... 5
Lopez v. Tex. Workers' Comp. Ins. Fund, 11 S.W.3d 490, 494 (Tex. App.--Austin
2000, pet. denied) 5
Railroad Commission v. Shell Oil Co., Inc.
161 S.W.2d 1022, 1029-30 (Tex. 1942) 9
Republic W. Ins. Co. v. State, 985 S.W.2d 698, 701 (Tex. App.--Austin 1999,
ii
Tarrant Appraisal District v. Moore
845 S.W.2d 820, 823 (Tex. 1993) 5, 6
Trapp v. Shell Oil Company
145 Tex. 323, 198 S.W.2d 424, 436 (1946) 8
198 524 S.W.2d at 440 8
Vitek v. Jones
445 U.S. 480, 490-91, 100 S. Ct 1254, 1262-63, 63 L. Ed. 2d 552 (1980)... 34
Wolff v. McDonnell
418 U.S., at 558, 94 S. Ct., at 2976 34
Statutes
Tex. Education Code
§21.206(a) Term Contract Renewal Act 3, 24
Chapter 21, Subchapter E Term Contract Renewal Act 3, 35
Chapter 21, Subchapter F 28
§21.201(c)(3) 10
§21.203 206-.207 34
§21.207 (a) 3, 24
§21.207, Subsection (b) 32
Acts 1981, 67th Leg., p. 2847, ch. 765, §2, eff. Aug. 31, 1981) 6
Government Code
§2001.001 .31
§2001.003 .31
§2001.081 23, 25, 29, 31
§2001.081 (a) 26
Commissioner's Decisions
Anderson v. Jacksonville ISD
Docket No. 142-R1-397, p. 2 (Comm'r Educ. 1997) ...6, 15, 23
iii
Carnot v. North East Independent School District
No. 066-R1-605, pp. 2-3 (Comm'r Educ. 2005) ..23
Dunlap v. Breckenridge ISD
Docket No. 334-R1-692, pp. 8 (Comm'r Educ. 1995) 6, 23
pp. 8-9 6
Gipson v. Ore City ISD
Docket No. 178-R1-690 (Comm'r Educ. 1992) 6, 15
p• 3 .23
Seifert v. Lingleville ISD
No. 174-R1a-782, p. 3 (Comm. Educ., Jan. 1983) 4
p•4 11, 15
Seifert *00 Ems goo 444 *O. 0...wo .ea &Ma S 4 0 ■ g ose COO OS. 29
'WO
Weatherwax v. Fort Worth Independent School District
iv
STATEMENT REGARDING ORAL ARGUMENT
Jorge Vazquez, Appellee, does not believe that the issues in this case are
complex enough to justify Oral Argument. What constitutes evidence or substantial
evidence is well-established, in large measure by cases from this very court. There
is no compelling reason to change those concepts, nor is one offered by the
Appellants in this case. The primary basis offered by the Appellants for departing
from a standard that has been consistently applied for more than thirty years is a
statute that, by its own terms, is not applicable to this case.
The briefs fully and fairly articulate the parties' positions, and Appellee does
not see any issue that requires oral argument to understand.
However, if this Court grants Oral Argument, Appellee requests the
opportunity to participate.
SUMMARY OF THE ARGUMENT
By now, everyone engaged in the practice of law is familiar with the evils
associated with what is commonly referred to as "judicial activism." Indeed, even a
sizeable number of laypeople are aware that it is not the task of the judicial branch
to create new law. With Texas being a State that elects its judges, virtually every
judicial candidate with advertising funds makes it clear that he or she will not
commit that offense; that he or she will "interpret" the law, not "make" law; that
they will not "legislate from the bench."
And yet, there is something even worse than judicial activism, as this case
demonstrates. Let's call it "administrative activism": what happens when the
executive branch decides to make new law, as opposed to simply administering the
laws enacted by the legislature.
Why is this worse than judicial activism?
First, administrative officials, have not been elected and have not put their
governing philosophy, values, and standards before the electorate. They have never
even promised to show restraint if clothed with the power to determine the rights
of those who are affected by their actions.
In addition, as a general rule, they do not have legal training that would help
them understand the importance of limiting their power to administering statutes as
written, as opposed to what they would like a statute to say.
In the present case, the Commissioner of Education went even further than
your ordinary administrative activist by not merely "making" new law, but by
changing existing law that he (in the form of his predecessors) had clearly and
consistently articulated for more than thirty years. In addition, he ran roughshod
over the substantial evidence standard that has been clearly spelled out in countless
decisions by Texas appellate courts.
2
More specifically, the Commissioner held, for the first time of which
Appellee is aware by any court or administrative body, that hearsay that is objected
to can constitute substantial evidence (even though it is not evidence at all).
In this case, Mr. Vazquez, a teacher in Los Fresnos ISD was proposed for
contract nonrenewal at the end of the 2012-13 school year in accordance with
§21.206(a) of the Term Contract Nonrenewal Act (TCNA). Tex. Education Code
Chapter 21, Subchapter E.
He requested a hearing pursuant to §21.207(a) of the Act.
A hearing was held before the Board of Trustees on June 13, 2013. At the
hearing, the evidence in support of nonrenewing Mr. Vazquez's contract consisted
almost exclusively of an administrator "testifying" to the Board about what
students had told her: which is commonly—actually universally--referred to as
"hearsay."
No student was called by the administration to tell the Board what he or she
had personally observed.
The Commissioner, on page 16 of his Decision, states that "[t]he issue of
what hearsay exceptions apply is dispositive in the present case." He specifically
notes "[t]hat the only people who observed what was going on in class were [Mr.
Vazquez] and his students," and Mr. Vazquez denied the allegations against him.
3
The Commissioner adds that:
If [Mr. Vazquez] is to be believed his actions would not warrant the
nonrenewal of his contract. If the students are [to] be believed, [Mr.
Vazquez's actions do warrant the nonrenewal of his contract.
The Commissioner then proceeds to declare, incorrectly, that certain new
exceptions to the hearsay rule before state agencies allow blatant hearsay to serve
as "evidence" in a substantial evidence review of a nonrenewal decision by a
school district's board of trustees.
Further, although Appellant Los Fresnos ISD attempts to argue that Mr.
Vazquez's own statements constitute substantial evidence to support the
nonrenewal of his contract, this is a new argument that cannot be raised for the first
time on appeal. It is also incorrect, for reasons addressed in Mr. Vazquez's
argument.
STANDARD OF REVIEW
The District court correctly reversed the decision of the Commissioner of
Education because: (a) the Commissioner's decision was not supported by
substantial evidence, because the statute does not allow, and never has allowed,
hearsay to serve as substantial evidence; and (b) was arbitrary and capricious.
Statutory Construction
The Commissioner's Decision (p. 16) correctly states that "[t]he issue of
what hearsay exceptions apply is diapositive of the present case. . . . If the students
4
are to be believed, [Mr. Vazquez's] actions warrant the nonrenewal of his
contract." But the only statements by the students are all hearsay. The question,
therefore, is whether the nonrenewal statute authorizes hearsay to serve as
substantial evidence. As this Court has held:
Statutory construction is a question of law. See Johnson v. City of Fort
Worth, 774 S.FV.2d 653, 656 (Tex. 1989). This Court reviews a ruling on a
pure question of law de novo. See Republic W. Ins. Co. v. State, 985 S. W.2d
698, 701 (Tex. App.--Austin 1999, pet. dism'd w.oj).
Lopez v. Tex. Workers' Comp. Ins. Fund, 11 S.W.3d 490, 494 (Tex. App.--Austin
2000, pet. denied).
The Commissioner argues that, nevertheless, the Commissioner's
construction of a statute he administers is entitled to deference or great weight.
This is, indeed, a general rule of thumb. However, what the Commissioner
does not mention is the language of the Texas Supreme Court in Dodd v. Meno,
870 S.W.2d 4, 7 (Tex. 1994):
As we recently noted in Tarrant Appraisal District v. Moore, 845 S.W.2d
820, 823 (Tex. 1993): Construction of a statute by the administrative agency
charged with its enforcement is entitled to serious consideration, so long as
the construction is reasonable and does not contradict the plain language of
the statute."
Indeed, citing this very case, the Supreme Court held , in the No. 1 case cited
by the Commissioner, that:
the contemporaneous construction of a statute by the administrative agency
charged with its enforcement is entitled to great weight. Dodd v. Meno, 870
5
S.W.2d 4, 7 (Tex. 1994); Tarrant Appraisal Dist. v. Moore, 845 S.W.2d 820,
823 (Tex. 1993).
State v. Pub. Util. Comm'n, 883 S.W.2d 190, 196 (Tex. 1994).
In the present case, the Commissioner's construction of the statute is
unreasonable and contradicts its plain language (i.e., "substantial evidence").
Further, the time for a contemporaneous construction of the statute is long past.
That was done in previous decades in cases that all stand for the proposition that
what is not evidence (e.g., hearsay) cannot support a decision in a substantial
evidence review: Dunlap v. Breckenridge ISD, Docket No. 334-R1-692, pp. 8-9
(Comm'r Educ. 1995); Gipson v. Ore City ISD, Docket No. 178-R1-690 (Comm'r
Educ. 1992). Anderson v. Jacksonville ISD, Docket No. 142-R1-397, p. 2
(Comm'r Educ. 1997).
The present case is the first instance, since the Term Contract Nonrenewal
Act was enacted in 1981 in which the Commissioner has announced that hearsay
can serve as substantial evidence. (See Acts 1981, 67th Leg., p. 2847, ch. 765, §2,
eff. Aug. 31, 1981.)
In short, this Court should give deference (or great weight) to the
Commissioner's contemporaneous and consistent construction of the statute, as
opposed to a johnny-come-lately interpretation that does nothing to further the
purpose of the statute and everything to circumvent it.
6
And this does not even take into account the normal rationale for giving an
administrative agency's construction "serious consideration": As explained in
Dodd:
we are not inclined to reverse the Commissioner's reasonable determination
in an area where he possesses considerable authority and expertise.
870 S.W.2d 4, 7.
The Commissioner's expertise is not in statutory construction, nor in what
constitutes "evidence" and "substantial evidence." The Court should not give any
deference to an educational administrator's interpretation on these concepts. This is
the sweet spot of the Court's purview. There is nothing the Commissioner of
Education can do or say that will assist the Court in its consideration of what
constitutes hearsay, evidence, or a substantial evidence review (as opposed, for
example, to a decision concerning teacher appraisals or class size limitations).
Substantial Evidence
To the extent, if any, that substantial evidence is an issue, the principles of a
substantial evidence review are well settled:
Any difficulty applying the substantial evidence rule in
cases such as this arises from the dual role the trial court
must play. On one hand, the court must hear and consider
evidence to determine whether reasonable support for the
administrative order exists. On the other hand, the agency
itself is the primary fact-finding body, and the question to
be determined by the trial court is strictly one of law.
Board of Firemen's Relief & Retirement Fund Trustees of
Houston v. Marks, 150 Tex. 433, 242 S.W.2d 181, 183
7
(1951). Thus, while the reviewing court is to a certain
extent a fact-finder, it may not substitute its judgment for
that of the agency on controverted issues of fact. Trapp v.
Shell Oil Company, 145 Tex. 323, 198 S.W.2d 424, 436
(1946). When there is substantial evidence which would
support either affirmative or negative findings the
administrative order must stand, notwithstanding the
agency may have struck a balance with which the court
might differ. Gerst v. Goldsbury, 434 S.W.2d 665,
667 (Tex.1968). The trial court may not set aside an
administrative order merely because testimony was
conflicting or disputed or because it did not compel the
result reached by the agency. Resolution of factual
conflicts and ambiguities is the province of the
administrative body and it is the aim of the substantial
evidence rule to protect that function. The reviewing
court is concerned only with the reasonableness of the
administrative order, not its correctness. Cusson v.
Firemen's and Policemen's Civil Service Commission,
524 S.W.2d 88, 90 (Tex.Civ.App.---San Antonio 1975,
no writ).
The reviewing courts need not consider "incredible,
perjured, or unreasonable testimony because such
evidence is not substantial." Trapp v. Shell Oil Company,
198 S.W.2d at 440. However, the reviewing court may
go no further than to examine the evidence for these
infirmities. If there is substantial evidence which
supports the order, the courts are bound to follow the
discretion of the administrative body.
Firemen's and Policemen's Civil Service Commission v. Brinkmeyer, 662 S.W. 2d
953, 956 (Tex. 1984).
Despite these general rules, the reviewing authority is not required to
consider only the evidence of one side without regard to that introduced by the
other:
$
This [i.e., the substantial evidence rule] does not mean
that a mere scintilla of evidence will suffice, nor
does it mean that the court is bound to select the
testimony of one side, with absolute blindness to that
introduced by the other. After all, the court is to render
justice in the case. The record is to be considered as a
whole, and it is for the court to determine what
constitutes substantial evidence. The court is not to
substitute its discretion for that committed to the
agency by the Legislature, but is to sustain the agency if
it is reasonably supported by substantial evidence before
the court. If the evidence as a whole is such that
reasonable minds could not have reached the conclusion
that the agency must have reached in order to justify its
action, then the order must be set aside.
Railroad Commission v. Shell Oil Co., Inc., 161 S.W.2d 1022, 1029-30 (Tex.
1942). (Emphasis added.). Here, the District Court appropriately found that the
Commissioner's decision must be overturned because reasonable minds could not
have reached the conclusion that Appellee's contract should be nonrenewed based
on the information offered by the District to support that action, which consisted
virtually entirely of hearsay.
Arbitrary and Capricious
The arbitrary and capricious standard is a separate basis, apart from lack of
substantial evidence, for invalidating an administrative action.
An agency's decision is arbitrary or results from an abuse
of discretion if the agency: (1) failed to consider a factor
the legislature directs it to consider; (2) considers an
irrelevant factor; or (3) weighs only relevant factors that
the legislature directs it to consider but still reaches a
9
completely unreasonable result. Gerst v. Nixon, 411
S.W.2d 350, 360 n. 8 (Tex.1966).
City of El Paso v. Public Utility Commission, 883 S.W.2d 179, (Tex. 1994). Here,
the District Court properly overturned the Commissioner's decision because it
ignored hearsay rules as well as the Texas Education Code provision which
requires that a teacher be allowed to cross examine adverse witnesses. Tex. Educ.
Code § 21.201(c)(3).
ARGUMENT
A. The District Offered no Credible Evidence against Mr. Vazquez
Mr. Vazquez was accused by the school district of a number of inappropriate
comments or acts. However, none of the allegations were supported by anything
that would qualify as "evidence."
The information masquerading as evidence was, almost without exception,
hearsay in the form of written statements from individuals who did not appear at
the hearing to state what they had personally observed or experienced. In their
absence, Mr. Vazquez had no opportunity to cross-examine them to demonstrate
any biases or other credibility problems, to demonstrate that their written
statements were exaggerated, distorted, or taken out of context, or were the result
of being led in the direction of making statements slanted against Mr. Vazquez.
10
In other words, the hearing was designed by the district to deprive Mr.
Vazquez of a fair opportunity to refute the allegations or minimize their prejudicial
effect.
The reasons given for the proposed nonrenewal are set forth as follows:
1. During this school year, students and parents have made complaints of
inappropriate comments made by you. Students have complained that you
make them feel uncomfortable.
This reason is irrelevant. First, the fact that complaints have been made
about a teacher is not listed in the district's nonrenewal policy as a basis for
nonrenewal. Policy DFBB (LOCAL) (A.R. Vol II. at 286-288).
In addition, if there were a policy that allowed the district to use mere
complaints or allegations as a basis for nonrenewal, as opposed to facts, it would
be arbitrary and capricious and contrary to the purpose for which the TCNA was
enacted. See Seifert v. Lingleville ISD, 174-Rla-782, p. 4 (Comm'r Educ. 1983), in
which a teacher was proposed for nonrenewal based on "community feeling of
incompetence." The Commissioner, in one of the first cases decided under the
Term Contract Nonrenewal Act, wrote as follows as to the purpose of the Act:
"Community feeling of incompetence" is the only reason
for nonrenewal of which Petitioner was given written
notice. It is a reason inconsistent with the purposes of
the TCNA. Section 21.203(b) of the Act, which requires
the local board of trustees to establish reasons for
nonrenewal, has no purpose if not to provide the
individual teacher with advance notice of what he or she
must do in order to retain his or her position with the
11
school district. For example, a teacher might be
reasonably required to do such things as prepare lesson
plans; keep proper records; be punctual; be competent;
avoid activities which could impair or diminish the
teacher's effectiveness in the district; and cultivate a
working relationship with parents, the community, and
colleagues. However, a teacher cannot reasonably be
required to control the community's perception of his or
her competence as an instructor.
A holding to the effect that a school district may
nonrenew a teacher for a reason over which the teacher
has no control would render §21.203 an extremely futile
piece of legislation; the teacher's situation would be only
negligibly improved over the days in which he or she
could be nonrenewed for no reason or any reason, with
the exception, of course, of a reason prohibited by federal
law. A teacher could be nonrenewed for the reason that
"the superintendent (or principal, or one member of the
board of trustees) thinks you are incompetent." As long
as the superintendent (or principal, or one member of the
board of trustees) were to state under oath that, in his or
her opinion, the teacher in question was incompetent, that
one line of testimony, by itself, could serve as sufficient
evidence to support the board of trustees' nonrenewal
decision on appeal to the Commissioner.
The TCNA does not contemplate such a roundabout
method of nonrenewing a teacher; it was not enacted to
allow the nonrenewal of a competent (or excellent)
teacher based on second hand accounts of the tales of
children which grow more exaggerated with each
retelling. In short, the community's perception of a
teacher's competence is irrelevant. What is relevant is
whether or not the teacher actually is competent and the
evidence pertaining to that issue. "Community feeling of
incompetence," therefore, is not a permissible reason for
nonrenewal and it is unnecessary to decide whether there
was substantial evidence before the Board of Trustees in
support of that reason.
12
By the same token, the teacher has no control over whether someone makes
a complaint against him. That is why the district is required to provide a hearing: to
determine whether the board believes the substance of the complaints after hearing
from those making them and/or others who observed the alleged incidents, taking
into account the witnesses' demeanor, credibility, and answers under cross-
examination, which might negate or minimize the weight given to their testimony.
2. A parent complained of the showing of a movie that was inappropriate.
The evidence shows that, on April 10, 2012 of the previous school year
(2011-12), Mr. Vazquez showed some of the movie Burlesque to ninth grade
students without obtaining prior approval. (A.R. Vol Il at 440.) He was advised
that "all videos/movies must be approved by administration" and told that all
movies must be previewed to confirm that the content is appropriate. Id.
Mr. Vazquez acknowledged that he had shown a few minutes of the movie,
but there were extenuating circumstances. His lesson for the day involved taking
his class to the computer lab. However, after his class had set everything up in the
lab, he was told by the assistant principal that the room was going to be used for
testing. His class returned to his classroom without being able to do the day's
assignment with approximately twenty minutes remaining in the period. (Tr. 126:
14 through 130:14.)
13
Mr. Vazquez testified that it's "not an uncommon thing in our district or our
high school or at United [ISD] where if something goes—changes, and people
show movies."
His students stated that they had already seen this particular movie in
another class. He "took for granted it was okay" because it was rated PG-13, and
he was dealing with ninth graders.
In all, the first 10-15 minutes of the movie were shown.
This matter was brought to Mr. Vazquez's attention on April 13, 2012.
There is no allegation and no evidence to suggest that, after being told that he
should preview and obtain prior approval before showing a movie, he failed to
follow that directive in any respect.
3. During the school year, parents have requested that their child be removed
from your class.
As with Reason No. 1, the fact that parents have requested that their children
be removed from Mr. Vazquez's class is no basis for nonrenewing a teacher in the
absence of evidence as to why these requests were made and, if for negative
reasons, whether they were supported by evidence.
4. Students corroborated the incidents. These statements have been previously
provided to you in a Public Information response for information and are
incorporated herein.
14
No student testified at the hearing to corroborate any incident. Petitioner
objected to all student statements the district offered as being hearsay. (Tr. 25:18
through 26:6; 28:13-24; 30:6-23; 109:18-25; and 159:14 through 160:10.)
As noted in the Seifert case, at p. 4, the Commissioner has specifically
discouraged blatant hearsay from serving as a basis for nonrenewing a teacher's
contract:
The TCNA does not contemplate such a roundabout
method of nonrenewing a teacher; it was not enacted to
allow the nonrenewal of a competent (or excellent)
teacher based on second hand accounts of the tales of
children which grow more exaggerated with each
retelling.
Petitioner is, therefore, entitled to have all improperly admitted evidence
disregarded by the Commissioner on appeal. See Dunlap v. Breckenridge ISD,
Docket No. 334-R1-692, pp. 8-9 (Comm'r Educ. 1995); Gipson v. Ore City ISD,
Docket No. 178-R1-690 (Comm'r Educ. 1992). Anderson v. Jacksonville ISD,
Docket No. 142-R1-397, p. 2 (Comm'r Educ. 1997).
5. You were provided directives memos to address prior inappropriate and
unprofessional interactions with students, parents and colleagues in an effort to
help you remediate your behavior. You were directed to refrain from several of the
behaviors as indicated above. You failed to follow previously provided directives
as indicated and failed to comply with other issues addressed in the memos.
This reason is flawed in numerous respects:
(a) Mr. Vazquez was provided with four memos: Exhibits 8, 9, 12, and
13. Numbers 12 and 13 concerned the same incident: showing the movie. Both
15
stated that he should not have shown the movie without prior approval and prior
screening. Both were dated April 13, 2012. Exhibit 12 was signed by the principal
on April 13, 2012, by the Human Resources Director on April 17, 2012, and by the
superintendent on April 18, 2012. Exhibit 13 does not contain any signatures, but
is purportedly from the principal and dated April 13, 2012.
The Board President signed Mr. Vazquez's contract on May 3, 2012.
There is no evidence—indeed, no allegation—that the information brought
to Mr. Vazquez's attention and the directives given him in Exhibits 12 and 13
during the previous school year while under a previous contract went unheeded.
There are no allegations of further movie-showing, and Mr. Vazquez, as mentioned
previously, testified that he meticulously followed the directives.
(b) Exhibit 9, also from the 2011-12 school year, concerned an allegation
in which Mr. Vazquez pretended to videotape a student who was constantly off
task that day in order to get her attention and focus on the lesson. He was directed
to never "lead students to believe that they are being video-taped in a classroom as
a disciplinary or class management technique."
The student in question did not testify. Mr. Vazquez testified (Tr. 117:10
through 118:21) that what he did prior to this incident was record his students'
presentations in his communications class. The camera on the day in question was
already set up, but there was no tape in it. The student was misbehaving and
16
distracting the rest of the class. She was talking to other students, causing them to
be off task. Everyone was doing their job except a few students around her. He
decided, at first, to move a number of students, not only her, "just to be fair"—i.e.,
so she would not feel singled out. Ultimately, he pretended to record her to see if
that would have any effect on her behavior.
Mr. Vazquez testified that he was not trying to intimidate or "bully" the
student. He was trying to maintain order so he could do his job and teach the other
students; or, more precisely, all of the students, including her. (Tr. 123:20-124:1.)
It is appropriate for the administration to advise a teacher that, in its opinion,
this type of corrective behavior is inappropriate and give a directive to not use that
technique in the future. Mr. Vazquez's actions were not, however, a matter clearly
proscribed by any law, regulation, school district policy, or directive prior to this
incident. Nor is it the type of situation that a reasonable teacher would know was
so horrific that it did not need to be specifically prohibited. It was simply a matter
of a teacher attempting to maintain order in what he believed to be a benign way.
Although there is no actual evidence that the student felt "humiliated" by the
incident (as asserted in Exhibit 9), being corrected by the teacher is, to some
extent, embarrassing and uncomfortable to any misbehaving student--whether it be
by being looked at, directed to stop misbehaving, given a demerit, sent to the
office, assigned after school detention, moved, assigned a seat next to the teacher's
17
desk, or any other technique employed by the teacher. There was no reason for Mr.
Vazquez to believe that pretending to record her would be any more disconcerting
to the student than any of these or however many other techniques teachers have
used since the dawn of time to promote attention to the lesson rather than to a
misbehaving student and her audience.
It also should be clear that Mr. Vazquez believes that this incident was
blown way out of proportion because the student involved was the daughter of the
board president. (Tr. 99:12-23.)
Regardless of all other considerations, Mr. Vazquez complied with the
directive he received during the previous school year while under a previous
contract concerning this method of classroom management, whether it was a valid
concern or not, whether he agreed with it or not. He followed his superiors' orders,
plain and simple. There is no evidence to the contrary. (See Tr. 125:12-126:15.)
(c) Exhibit 8 sets forth a number of complaints the principal says he
received from students. All are hearsay. No student or any witness who
purportedly observed the incidents recounted them at the nonrenewal hearing. Mr.
Vazquez testified that one of the allegations contained a grain of truth: that he had
said something to a student about his manner of dress. The district took the
position that this comment was meant to embarrass the student.
18
Mr. Vazquez testified that a student came to his desk because the student
was trying to log in and his password was not working. Mr. Vazquez noticed that
the boy was wearing both suspenders and a belt. He did not want other students
making fun of him, so he told the student that belts are not usually worn with
suspenders. He was not trying to hurt the boy; in fact, he was trying to make sure
he did not get made fun of. (Tr. 131:13 through 133:4.)
Later, the principal told Mr. Vazquez for the first time that the boy had
"issues," and had a hard time dealing with students and other people; i.e., he was
very sensitive.
There is no valid evidence supporting any allegation that Mr. Vazquez did
anything improper in connection with this incident.
In sum, there is evidence that Mr. Vazquez received directives. There is no
evidence to support the allegations on which some of the directives were based. On
those where Mr. Vazquez acknowledges that the incident happened (i.e., the
showing of the movie, the pretend videotaping, and the discussion about the
student's manner of dress), the evidence demonstrates that these were not matters
that would justify the serious action of nonrenewal. Further, Mr. Vazquez
complied with all directives he was given once the administration's concerns were
brought to his attention.
6. Your 2013 summative evaluation reflects performance issues and
substantiates that there are issues with the following domains: IV-management and
19
student discipline; V-verbal and nonverbal communications with students; and VII-
operating procedures and requirements.
In the absence of evidence supporting these ratings, we have the situation
addressed in Seifert and quoted previously:
A holding to the effect that a school district may
nonrenew a teacher for a reason over which the teacher
has no control would render §21.203 an extremely futile
piece of legislation; the teacher's situation would be only
negligibly improved over the days in which he or she
could be nonrenewed for no reason or any reason, with
the exception, of course, of a reason prohibited by federal
law. A teacher could be nonrenewed for the reason that
"the superintendent (or principal, or one member of the
board of trustees) thinks you are incompetent." As long
as the superintendent (or principal, or one member of the
board of trustees) were to state under oath that, in his or
her opinion, the teacher in question was incompetent, that
one line of testimony, by itself, could serve as sufficient
evidence to support the board of trustees' nonrenewal
decision on appeal to the Commissioner.
The TCNA does not contemplate such a roundabout
method of nonrenewing a teacher; it was not enacted to
allow the nonrenewal of a competent (or excellent)
teacher based on second hand accounts of the tales of
children which grow more exaggerated with each
retelling.
There is nothing to suggest that the evaluation at issue is based on anything
other than the second hand accounts of tales of children, with no way to gauge
whether they are exaggerated, taken out of context, made up, or the product of
other flaws. This is especially true taking into account Dist. Exh. 5, which
demonstrates that:
20
(a) Mr. Vazquez's evaluations have been consistently excellent
throughout his career as a teacher in Los Fresnos ISD, at least prior to the incident
involving the daughter of the school board president; and
(b) His final evaluation for the 2012-13 school year contained none of the
negative ratings referred to in the Notice of Proposed Nonrenewal, despite the
incidents that occurred during that school year that the District claims, a year later,
are grounds for ending his employment. If these incidents, indeed, were so bad as
to justify the nonrenewal of Mr. Vazquez's contract more a year later, why was it
not important enough to adversely affect his evaluation at the time?
B. The Texas Rules of Evidence
The Defendants' arguments are:
1. The Board's Procedure allowed hearsay
The District established its own non-renewal hearing rules and advised
Vazquez that the Rules of Evidence would not control. (LFISD Brief, p. 35-36).
The problem with this "rationale" is that it ignores the issue: i.e., whether the
decision is supported by substantial evidence. The fact that the Board allows non-
evidence to be admitted does not mean that the non-evidence is somehow
magically transformed into actual evidence for the purpose of a substantial
evidence review. The Board could also allow testimony from a psychic or tarot
card reader and consult a Ouija Board or Magic-8 Ball before making its decision.
21
The question in this proceeding would remain whether there is substantial evidence
in the record no matter how many times "It is certain" pops up on the Magic 8-
Ball.
In short, no matter what nonsensical procedures the Board adopts for its
hearing, those procedures do not make evidence out of something that is not
evidence.
2. The Board was entitled to ignore the Rules of Evidence
Los Fresnos ISD, at page 35 of its brief, entitles an entire section of its
argument, "The Rules of Evidence Do Not Apply." Also, the Commissioner, at
page 16 of his brief, writes that the Texas Rules of Evidence do not apply to
nonrenewal hearings.
Both appellants argue that since the Texas Education Code provides that the
Rules of Evidence apply in termination hearings and nonrenewal hearings before a
certified hearing examiner, we must infer that the legislature did not intend for
those rules to apply in a nonrenewal hearing before a school board.
This principle can be applied to a certain extent, but not to the extent to
which it was misused at the hearing and before the Commissioner of Education on
appeal in this case.
While some leeway is afforded in an administrative hearing concerning the
Rules of Evidence, what is not evidence cannot serve as substantial evidence. As
-)2.
noted in Mr. Vazquez's discussion of the Standard of Review as to statutory
construction, the Commissioner has held consistently that "[w]hile the Texas Rules
of Evidence do not apply to local hearings, they do apply when the record is
reviewed on appeal." Dunlap v. Breckenridge ISD, Docket No. 334-R1-692, pp. 8-
9 (Comm'r Educ. 1995); Gipson v. Ore City ISD, Docket No. 178-R1-690
(Comm'r Educ. 1992). Hearsay, properly objected to at the local hearing, is to be
rightfully excluded and cannot support a board's decision. Anderson v.
Jacksonville ISD, Docket No. 142-RI-397, p. 2 (Comm'r Educ. 1997).
More specifically, the Commissioner explained in Gipson, at p. 3:
Hearsay — As evidence that Petitioner failed to maintain an effective
working relationship, or maintain good rapport, with colleagues,
Respondent offered the testimony of Cornelia Wilson, a second year,
non-certified probationary teacher. Wilson testified that two students
said Petitioner referred to Cornelia Wilson, who was eight months
pregnant, as a "big-bellied b**** and a white Motherf***er."
Petitioner denied making the statement. The students were not
available for cross examination by Petitioner. The use of said
language in the presence of students is so damaging that Respondent's
failure to have the students testify is surprising. Because Cornelia
Wilson's testimony was objected to as hearsay, it will not be held to
be evidence of Respondent's cause for nonrenewal.
Further, in 2005, the Commissioner followed suit in Carnot v. North East
Independent School District, No. 066-R1-605, pp. 2-3 (Comm'r Educ. 2005):
23
Hearsay
Petitioner argues that the Chronology of Events and a statement by
Petitioner's supervisor should not have been admitted into evidence
because they were hearsay. In both cases, the statements are hearsay
and should not have been admitted.
Perhaps the strongest statement to this effect came in a contemporaneous
decision issued by The Honorable Raymon L. Bynum, the Commissioner of
Education in 1981when the Term Contract Nonrenewal Act was enacted:
Regardless of the manner in which the local board of trustees
structures its hearings, however, §21.207(a) of the TCNA authorizes
the Commissioner of Education to review the decisions of local school
boards in nonrenewal cases on a substantial evidence basis. It is well-
established that when the legislature uses a word, such as "evidence,"
which has a settled legal significance, it is presumed to have been
used in that sense. [Citation omitted.]
In the present case, it is not necessary to define precisely what
"evidence" is, because it is clear what "evidence" is not: in Texas the
hearsay rule applies in administrative hearings, just as it does in court.
And it is a rule that forbids the reception of evidence rather than one
that merely goes to the weight of the evidence." (Citation omitted.]
... the . . . well-established rule in Texas [is] that hearsay evidence is
"[w]holly incompetent and without probative force, and can never
form the basis for establishing a cause of action , finding of fact, or
judgment of court, whether objected to or not.
Seifert v. Lingleville ISD, No. 174-R1 a-782, p. 3 (Comm. Educ., Jan. 1983).
In the thirty-one years since the Seifert decision, the hearsay rule has been
loosened in some respects. Section 2001.081 of the Government Code, discussed
below, allows some hearsay exceptions in hearings before state agencies under
24
certain circumstances with regard to facts that are not reasonably susceptible of
proof. In addition, the courts have held that unobjected to hearsay can have some
probative value.
The present case, however, does not involve an evidentiary hearing before a
state agency, does not involve facts not reasonably susceptible of proof, and does
not involve unobjected to hearsay.
"Susceptible" is defined as:
capable of submitting to an action, process, or operation <a theory
susceptible to proofs
See http://www.merriam-webster.com/dictionary/susceptible?show=0&t=1378398320.
In other words, §2001.081 comes into play only if the fact to be proved is
not reasonably capable of being proved.
The allegations in this case are all "reasonably" susceptible (or capable) of
proof. They are, in fact, among the easiest matters to prove. The allegations
against Mr. Vazquez concern his overt conduct. In essence, he was accused of
acting rudely or insensitively toward students who claim to have observed his
conduct.
The Commissioner claims that the allegations are not "reasonably
susceptible of proof" because the District does not have subpoena power. This,
however, confines two different concepts: i.e., (1) not being "reasonably
susceptible of proof'; and (2) difficulty with producing witnesses.
25
For example, whether a teacher yelled, "Shut up" to a student is reasonably
susceptible of proof in all cases. That it might be more difficult in one case than
another to procure the evidence necessary to prove this allegation does not make it
"reasonably susceptible of proof" in the first case and "not reasonably susceptible
of proof' in the second. The concept of susceptibility is not dependent on how easy
or difficult it is in a particular case to actually produce testimony in support of the
fact to be proved. It, instead, relates to whether the fact can normally be proved
through regular admissible evidence—like testimony from witnesses with personal
knowledge.
The district, however, decries its inability to procure witnesses due to its
lack of "subpoena power" as part of the nonrenewal process. However, even if
§2001.081 (a) could be used in nonrenewal proceedings, and (b) difficulty in
producing witnesses were a factor in determining whether a fact was "reasonably
susceptible of proof," there is no (as in zero) evidence that the District, in this case,
had any difficulty in producing students as witnesses.
The Commissioner opines, on page 17 of his Decision, that:
When a school board hears a proposed nonrenewal itself, it does not
have subpoena power. While students may be asked to testify, many
parents would probably not choose to subject their children to cross-
examination by an attorney who is zealously advocating for his
client's employment. The lack of subpoena power means that what
occurred in a classroom when only a teacher and students were
present is not reasonably susceptible to proof using the hearsay
26
exceptions as applied by courts. The student statements are necessary
to ascertain facts not reasonably susceptible for proof.
In his Brief in this case, at p. 11, the Commissioner states that "it is unlikely
that [the students'] parents would allow them to testify and face a teacher who had
embarrassed and belittled them."
Setting aside the fact that this claim by the Commissioner is sheer
speculation and assumes away the issue, there have been countless nonrenewal
hearings in the thirty-plus years since the Term Contract Nonrenewal Act was
enacted in which students have appeared and testified and, amazingly, not been
traumatized. In fact, there is no evidence that any student, let alone a ninth grade
student, has ever been traumatized by telling a board of trustees information within
his or her personal knowledge at a nonrenewal hearing. This is nothing but wild-
eyed speculation supported by—well—nothing.
In addition, the burden in seeking the use of non-evidence at a hearing, to
the extent, if any, that using such information is allowed, must be on the party
offering the non-evidence; i.e., the party attempting to get around the normal Rules
of Evidence. In the present case, the District's administration, to its credit, did not
attempt to meet this burden, because it could not do so in good faith. Section
2001.081 was raised entirely sua sponte by the Commissioner; it is hard to imagine
a worst example of administrative activism.
17
What the administration did was state honestly and openly that it chose not
to call the students as witnesses. It did state that it could not produce them because
of a lack of cooperation. The superintendent, indeed, set forth his rationale as
follows:
We didn't call children today because we have a responsibility to
protect the children. To subject them to the imbalance of power that
would—they would have to experience here coming before a Board
where the only time they come here is when we praise them for their
accomplishments. To have them come here and have to relive and be
questioned about what they have already answered would be highly
inappropriate.
(Transcript, p. 164)
Need it be mentioned again that this "rationale" (a) assumes away the issue,
and (b) is not supported by anything?
The Commissioner also asserts incorrectly, on page 23 of his brief, that
"because the District could not subpoena the students, the Board could not ensure
the students' appearance at the hearing. More accurately, the District chose to
employ a process that allowed them to argue that they could not subpoena the
students. As noted in the Commissioner's own brief, the District had the option of
employing the Independent Hearing Examiner process established in Chapter 21,
Subchapter F of the Education Code, which includes subpoena power. That
process, however, also includes an impartial fact-finder, which could result in not
28
only relevant evidence being admitted in live testimony, but in an unbiased
assessment of the evidence that might not fit in with the administration's agenda.
In other words, the District cannot hide behind its lack of subpoena power as
a reason for not producing witnesses with personal knowledge of the allegations
when it (a) chose to not have subpoena power and (b) made no effort, as discussed
above, to even try to procure those witnesses.
There has been no change in the TCNA since the Seifert case to indicate that
hearsay is to be more freely allowed at nonrenewal hearings in 2013 or 2014 than it
was in 1983, §2001.081 of the Government Code notwithstanding.
Mr. Vazquez's position, consistent with all previous holdings by the
Commissioner, is that blatant hearsay cannot serve as substantial evidence.
Regardless of any school district's procedures, there must be something that
constitutes evidence in the record. There is a reason for the general rule against
hearsay, which is that it is inherently unreliable in the absence of a valid, well-
reasoned exception.
Why do we have exceptions? Because the drafters of the Rules have
determined that, in certain instances, hearsay is not unreliable—e.g., in the case of
excited utterances or statements made by a person under the belief that death is
imminent. However, in the present case, none of the exceptions to the lack of
trustworthiness apply.
29
In short, even though the Rules of Evidence might not apply as strictly in a
nonrenewal hearing as in court, the basis for the Rule remains: i.e., If Person A,
who was not present at the event about which he or she is testifying, merely repeats
what he or she was told by Person B about what Person B claims to have observed,
Person A has testified to nothing. Although the Board might want to listen to this
second hand account of what might have happened, and claim that the Rules of
Evidence do not apply, this type of information is not reliable, is not evidence, and
cannot be relied upon as substantial evidence on appeal.
The District argues, at p. 28, that "[i]t is within the board's purview to
determine what weight to afford evidence."
Though the Board may have license to determine what weight to afford
evidence, the Board is not authorized to give weight to non-evidence. In the
present case, the blatant hearsay submitted to the Board does not even resemble
evidence. The Board could not, therefore, use it as a basis for not renewing Mr.
Vazquez's employment.
The standard of review is, after all, "substantial evidence," not substantial
hearsay.
3. The hearsay rule is to be liberally applied
The Commissioner of Education argues that the students' statements were
admissible under liberal exceptions to the hearsay rules. Commissioner's Brief, at
30
19. For some reason, he supports this assertion with a statute that does not even
apply to this case—and which the Commissioner admits does not apply (at p. 21-
22): i.e., §2001.081 of the Government Code.
Section 2001.081
Section 2001.081 is part of the Administrative Procedure Act (Chapter 2001
of the Government Code), which has no application to school district nonrenewal
hearings. The Act's purpose is to govern contested cases before state agencies:
Sec. 2001.001. PURPOSE. It is the public policy of the state through this
chapter to:
(1) provide minimum standards of uniform practice and procedure for state
agencies;
(2) provide for public participation in the rulemaking process; and
(3) restate the law of judicial review of state agency action.
(Emphasis added)
Sec. 2001.003. DEFINITIONS. In this chapter:
(7) "State agency" means a state officer, board, commission, or department
with statewide jurisdiction that makes rules or determines contested
cases. . . .
(Emphasis added)
Subsection (1) defines "contested case " as follows:
(1) "Contested case" means a proceeding, including a ratemaking or
licensing proceeding, in which the legal rights, duties, or privileges of a
party are to be determined by a state agency after an opportunity for
adjudicative hearing.
31
(Emphasis added)
Nothing in the Administrative Procedure Act makes the contested case
provisions of the APA applicable to school district nonrenewal hearings. While the
Commissioner is entitled to deference in his interpretation of the law, his
interpretation must not be arbitrary and capricious, as it was in this case.
Nonrenewal hearings are governed by the Education Code and District
policy
Nonrenewal hearings are governed by §21.207 of the Education Code,
Subsection (b) of which reads as follows:
(b) The hearing must be conducted in accordance with rules adopted
by the board. The board may use the process established under
Subchapter F.
Subchapter F pertains to hearings before Independent Hearing Examiners,
which the Board, in this case, declined to use.
Conceivably, a school district could incorporate the procedures of the
Administrative Procedure Act into its nonrenewal hearings. However, Respondent
did not even purport to do so. See Administration Exhibit 1, Policy DFBB
(LEGAL) and (LOCAL).
Policy DFBB(LOCAL) provides, consistent with § 21.207(c), that:
3. The employee may cross-examine any witnesses for the
administration.
32
Mr. Vazquez was totally denied the opportunity to cross-examine the real
witnesses against him, contrary to this policy.
4. Non-hearsay evidence did not constitute substantial evidence supporting the
Board's decision
The Commissioner held that Mr. Vazquez would prevail even with the
admissions he made about his conduct, stating, "If Petitioner is to be believed his
actions would not warrant the nonrenewal of this contract" (Comm'r Dec. p. 27).
Regardless, this argument is one that was not raised by the appellants in the
proceedings in the District Court and should, therefore, not be considered by this
Court.
There is no need to remand this case back to the Commissioner for further
findings because he has already ruled that no substantial evidence would support
the nonrenewal of Vazquez's contract in the absence of the hearsay statements. It
would not, as further explained by Mr. Vazquez in Section A, parts 5-6 above.
5. Even if Vazquez does not have a due process right in the renewal of his
contract, the statute requires substantial "evidence"
Page 26 of the Commissioner's brief states that "because Mr. Vazquez has
no right to due process in nonrenewal of his contract, the Commissioner could
consider any evidence properly admitted under the Board's hearing rules." The
brief further states that Mr. Vazquez has "failed to address an essential question: if
33
a petitioner is not entitled to due process rights, what is the basis for providing that
petitioner with the procedural protection of the TRE's hearsay rule?"
Mr. Vazquez denies that he lacks a due process right in the renewal of his
contract. See Vitek v. Jones, 445 U.S. 480, 490-91, 100 S.Ct 1254, 1262-63, 63 L.
Ed. 2d 552 (1980), in which the United States Supreme Court held:
When a State grants a right or expectation. . .that adverse action will not be
taken . . . except upon the occurrence of specified behavior, "the
determination of whether such behavior has occurred becomes critical, and
the minimum requirements of procedural due process appropriate for the
circumstances must be observed." Wolff v. McDonnell, 418 U.S., at 558, 94
S.Ct., at 2976. These minimum requirements being a matter of federal law,
they are not diminished by the fact that the State may have specified its own
procedures that it may deem adequate for determining the preconditions to
adverse official action.
The State has granted a right or expectation to Mr. Vazquez: i.e., that his
contract will be renewed unless the school district takes affirmative action, in
accordance with the requirements of the Term Contract Nonrenewal Act, to
nonrenew his employment for the succeeding school year. The TCNA mandates
that, as a prerequisite to the adverse action of nonrenewal, there must be the
occurrence of specified behavior spelled out in district policy. Tex. Educ. Code
§21.203,.206-.207.
However, even if the Commissioner were correct in his statement that due
process does not apply in this case, it does not matter. The Term Contract
Nonrenewal Act, as previously and consistently held by prior Commissioner's
34
decisions, requires (a) a district to base nonrenewal decisions on evidence, and (2)
the Commissioner to review the Board's decision for substantial evidence.
CONCLUSION
The Term Contract Nonrenewal Act, Chapter 21, Subchapter E of the
Education Code, was a weak statute with regard to protecting teachers from the
moment it was enacted in 1981. It was better than what teachers had previously,
which was nothing: where a teacher could teach in a school district for twenty-five
years with exemplary results and suddenly learn at the end of his twenty-fifth year
that he would not be offered a contract for the ensuing school year, and not even be
told why. See Hix v. Tuloso-Midway ISD, 489 S.W.2d 706, 711 (Tex.App.—
Corpus Christi 1972—writ red, n.r.e.):
Under the facts and circumstances presented by this appeal, the Board of
Trustees, under Texas Law, had the exclusive right and sole legal authority
to re-employ or not re-employ plaintiff, with or without reason, so long as
his constitutional rights were not violated.
(Emphasis added.)
In 1981, the legislature enacted the TCNA, which required school districts to
give veteran, non-probationary teachers notice of their proposed nonrenewal,
reasons for the proposal, and a hearing concerning those reasons. Under this
statute:
35
(a) The teacher was still at a major disadvantage at the hearing, having to
persuade the Board of Trustees to go against its superintendent, who it
works with closely on a continuing basis, and who it pays well to run the
day to day operations of the district, advise it as to policy, and
recommend employment of its teachers and administrators; and
(b) Any adverse decision by the Board stands on appeal if it is supported by
substantial evidence and is not arbitrary and capricious, difficult
standards to overcome.
For more than three decades, the Commissioner of Education has required
that, at the very least, school districts must only meet this most minimal of
standards (i.e., substantial evidence/arbitrariness and capriciousness).
In the present case, the Commissioner has abandoned even the minimal
substantial evidence standard, as if it is too much to ask of the school district to
base its decision on even what has been described as "more than a scintilla of
evidence."
Instead, legislating from his office in the William B. Travis State Office
Building, the Commissioner has decided, out of nowhere, to suddenly re-legislate
an Act that has been consistently applied for more than thirty years: by requiring
no evidence to uphold the district's action; by requiring, instead, "substantial
hearsay."
The trial court correctly held that this is an improper standard. Its decision
should be affirmed.
36
PRAYER
For the above reasons, Mr. Vazquez requests that the Court AFFIRM the
District Court's Final Judgment overturning the decision of the Commissioner of
Education and grant the following relief:
1. Find that the Board of Trustees acted arbitrarily, capriciously, and
without substantial evidence when it nonrenewed Mr. Vazquez's
contract;
2. Overturn the Board's action;
3. Enter an Order declaring the Board's action to be void;
4. Order Los Fresnos ISD to reinstate Plaintiff's employment with back
pay from the date of nonrenewal to the date of reinstatement,
reimbursement of any expenses incurred by Mr. Vazquez due to the
loss of any non salary employee benefits, and an amount sufficient to
compensate Mr. Vazquez for the expected loss of retirement benefits
due him;
5. Or, in lieu of requests 2 through 4, remand this case to the
Commissioner of Education with instructions to enter an Order to the
same effect; and
6. Grant any other appropriate relief.
37
Respectfully submitted,
BRIM, ARNETT, ROBINETT, P.C.
Attorneys at Law
2525 Wallingwood Drive
Building 14
Austin, Texas 78746
(512) 328-0048
(512) 328-4814 (facsimile)
mrobinett@brimarnett.com
BY: /s/ Mark W. Robinett
MARK W. ROBINETT
State Bar No. 17083600
38
CERTIFICATE OF COMPLIANCE
Pursuant to TEX. R. APP. P. 9.4, I hereby certify that this Appellee's Brief
contains 9,513 words. This is a computer-generated document created in
Microsoft Word, using 14 point typeface for all text. In making this certificate of
compliance, I am relying on the word count provided by the software used to
prepare the document.
/s/ Mark W. Robinett
MARK W. ROBINETT
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument has
been delivered by e-mail on this the 19th day of March, 2015 to:
Jennifer L. Hopgood
Assistant Attorney General
Administrative Law Division
Office of the Texas Attorney General
P. 0. Box 12548, Capitol Station
Austin, Texas 78711-2548
Jennifer.hopgood@texasattomeygeneral.gov
Attorney for Michael Williams
and
D. Craig Wood
Attorney at Law
Walsh, Anderson, Gallegos, Green & Trevino, P.C.
P. 0. Box 460606
San Antonio, Texas 78246-0606
cwood@wabsa.com
Attorney for Los Fresnos ISD
Is! Mark W. Robinett
MARK W. ROBINETT
39
APPENDIX
TAB
A Transcript Hearing (Pages cited in brief)
Tr. 25:18 through 26:6
Tr. 28:13-24
Tr. 30:6-23
Tr. 99:12-23
Tr. 109-18-25
Tr. 117:10 through 118:21)
Tr. 123:20-124:1
Tr. 125:12-126:15
Tr. 126: 14 through 130:14
Tr. 131:13 through 133:4
Tr. 159:14 through 160.10
B Cases not included in Appellants' Appendices
1. Jeannette Seibert v. Lingleville Independent School District
2. Kathy Anderson v. Jacksonville Independent School District
C Board Hearing Procedures Policy DFBB (LOCAL)
TAB A
Transcript of Hearing (Pages cited in brief)
25:18 through 26:6
Tr. 28:13-24
Tr. 30:6-23
Tr. 99:12-23
Tr. 109:18-25
Tr. 117:10 through 118:21)
Tr. 123:20-124:1
Tr. 125:12-126:15
Tr. 126: 14 through 130:14
Tr. 131:13 through 133:4
Tr. 159:14 through 160.10
Page 1
1
2
3
4
5
6 LOS FRESNOS
7 CONSOLIDATED INDEPENDENT SCHOOL DISTRICT
8 JORGE VAZQUEZ, JR.
9 NONRENEWAL HEARING
10 JUNE 13, 2013
11
12 - - -
13
14
15
16
17
18
19
20
21
22 BE IT REMEMBERED that on the 13th day of June,
23 2013, in the Training Center Board Room located next to
24 Los Fresnos Elementary School, 3602 State Highway 100,
25 Los Fresnos, Texas, a Special Board Meeting was held.
Electronically signed by Trade Wilson (601-098-354-1200) bb7ca2ed-3bda-4896-a5c0-8e7b62fc9004
Los Fresnos CISD L.R. 0001
Page 2
1 APPEARANCES
2 FOR THE ADMINISTRATION:
3 D. Craig Wood
Elizabeth G. Neally
4 WALSH, ANDERSON, GALLEGOS, GREEN & TREVINO P.C.
100 NE Loop 410, Suite 900
5 San Antonio, Texas 78216
6
FOR JORGE VAZQUEZ, JR.:
7
Mark W. Robinett
8 BRIM, ARNETT, ROBINETT, HANNER & CONNERS
2525 Wallingwood Drive, Suite 1400
9 Austin, Texas 78746
10
11 Board MEMBERS
12 Darlene Pederson
Ruben Trevino
13 Rey Farias
Leonel Garza
14 Martin Castillo
Gonzalo Salazar
15
16
17
18
19
20
21
22
23
24
25
Electronically signed by Trade Wilson (601-098-354-1200) bb7ca2ed-3bda-4896-a5c0-8e7b62k9C104
Los Fresnos CISD L.R. 0002
Page 3
1 INDEX
ADMINISTRATION'S DIRECT EVIDENCE
2
WITNESSES:
3
JOSEPH VILLARREAL
4 Direct Examination by Mr. Wood 20
Cross-Examination by Mr. Robinett 54
5 Redirect Examination by Mr. Wood 73
Recross-Examination by Mr. Robinett 81
6 Redirect Examination by Mr. Wood 83
7 ADA AMARO-SIBAJA
Direct Examination by Ms. Neally 84
8 Cross-Examination by Mr. Robinett 89
Redirect Examination by Ms. Neally 92
9
GONZALO SALAZAR
10 Direct Examination by Mr. Wood 93
Cross-Examination by Mr. Robinett 100
11 Redirect Examination by Mr. Wood 110
Recross-Examination by Mr. Robinett 110
12
JORGE VAZQUEZ' DIRECT EVIDENCE
13
JORGE VAZQUEZ,JR.:
14 Direct Examination by Mr. Robinett 115
Cross-Examination by Mr. Wood 149
15
ADMINISTRATION'S REBUTTAL EVIDENCE
16
GONZALO SALAZAR
17 Direct Examination by Mr. Wood 154
Cross-Examination by Mr. Robinett 161
18
ADMINISTRATION'S DOCUMENTARY EVIDENCE
19
NO. DESCRIPTION
20
1 Notice of Proposed Nonrenewal
21
2 Recommendation to Propose
22 Nonrenewal
23 3 Term Contract
24 4 Written Job Description for
Classroom Teacher
25
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1 that it is never acceptable to pretend to videotape a
2 student in a classroom. Do you agree with that
3 statement?
4 A. Yes. If you're either going to videotape or
5 pretend to videotape, it's absolutely -- you know, it's
6 out of character -- out of line for a professional.
7 Q. Okay. And I would like you to turn to Exhibit
8 No. 13. Let's see. I'm sorry. That's the wrong one.
9 Let me jump here. To Exhibit No. 17, sir.
10 A. (Witness complies.)
11 Q. And Exhibit No. 17 appears to be some student
12 statements that were submitted in connection with this
13 incident involving the tossing of hair; is that correct?
14 A. Yes.
15 Q. And the first student there -- and for purposes
16 of the record, she will be identified as S.G., but S.G.
17 was the --
18 MR. ROBINETT: I'm going to object to any of
19 the student statements in Exhibit 17. Those are all
20 statements made by individuals who aren't here to be
21 cross-examined, which is commonly called hearsay.
22 MS. PEDERSON: What is your position on
23 this?
24 MR. WOOD: My response to that, Your Honor,
25 is I can authenticate the investigation. I would
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1 further respond that the Texas Rules of Evidence have
2 been specifically noted to not apply in this particular
3 situation. I believe that the evidence is admissible,
4 but the Board can -- may consider it.
5 MS. PEDERSON: I'm going to go ahead and
6 overrule.
7 BY MR. WOOD:
8 Q. Mr. Villarreal, these documents that appear out
9 of Exhibit No. 17, are those statements that relate to
10 the investigation of that particular incident? I think
11 you answered that, but --
12 A. Yes.
13 Q. And so with respect to the particular -- the
14 first item in that particular exhibit, is that -- is
15 that young lady who was subject to this humiliating
16 treatment?
17 A. Yes, sir.
18 Q. And, likewise, behind that, there are several
19 other statements that appear as well; is that correct?
20 A. Yes.
21 Q. And do you believe that the actions taken by
22 Mr. McDonough, in issuing the Notice of Warning to
23 Mr. Vazquez in connection with this incident, was
24 warranted?
25 A. Yes, absolutely.
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1 to my attention by a teacher who had -- who had heard
2 from a student that another student in Mr. Vazquez's
3 class had been subjected tb ridicule by Mr. Vazquez in
4 his reference to what the student was wearing. In this
5 instance, he was wearing suspenders and a belt, and
6 Mr. Vazquez was questioning the student as to why he was
7 wearing suspenders and a belt, that they shouldn't be
8 worn together, but continually brought up that specific
9 topic in the short amount of time that the student was
10 in class. And so the other students in the class felt
11 that it wasn't appropriate, and so they reported it to
12 another adult who immediately reported it to me.
13 MR. ROBINETT: I'm going to object again as
14 to it being hearsay.
15 MR. WOOD: Same response, Your Honor.
16 MS. PEDERSON: Again, Rules of Evidence do
17 not apply, so I'm going to go ahead and overrule this.
18 MR. ROBINETT: Just for the record, I will
19 submit that even if the Rules of Evidence don't strictly
20 comply, the rules of common sense and logic do apply,
21 and that any attempt to get in what is blatant hearsay
22 goes beyond the leeway given to the Board in this type
23 of situation.
24 MS. PEDERSON: Noted.
25 BY MR. WOOD:
•
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1 you, sir?
2 A. Yes, I do.
3 Q. Is this N.N.'s statement about this situation?
4 A. Yes, it is.
5 Q. Now, he also provided some subsequent --
6 MR. ROBINETT: I'm going to object, again,
7 as hearsay, and maybe -- well, I think I probably just
8 need to note my objection every time hearsay is gone
9 into.
10 MR. WOOD: Your Honor, I would be willing
11 to, rather than taking the time, just grant Mr. Robinett
12 a standing objection to hearsay with respect to the
13 student statements.
14 MS. PEDERSON: Okay. You may continue.
15 MR. ROBINETT: Okay. Is it okay that the
16 standing objection is good?
17 MS. PEDERSON: Yes.
18 MR. ROBINETT: So the Board is aware that
19 every time they start talking about what a student has
20 told them either in writing or orally, I don't have to
21 state the objection; the Board understands it's
22 standing?
23 MS. PEDERSON: It will be noted, yes.
24 MR. ROBINETT: Thank you.
25 BY MR. WOOD:
- - - - •■ • • •
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1 classroom management to pretend to set up a camera to
2 record a student to establish how many times that
3 student has toyed with her hair? I do recall that
4 meeting.
5 Q. And that's all you know about it, is that it was
6 about a student toying with her hair?
7 A. Yes, sir, and how he believed it disrupted class,
8 but it didn't matter. It mattered less to him that we
9 were consuming precious instructional time pretending to
10 set up a camera to record the student and to do this in
11 front of all of her classmates.
12 Q. And did it make any difference to you who that
13 student was?
14 A. It doesn't make a difference to me, sir.
15 Q. Well, it did make a difference to you that the
16 student was the school Board president's daughter,
17 didn't it?
18 A. No, sir. I have an obligation to protect every
19 child.
20 Q. Isn't that the only reason that you were upset
21 with Mr. Vazquez is because the school Board president
22 told you to be?
23 A. No, sir.
24 Q. It was entirely a matter of politics, wasn't it?
25 A. It is not, sir. It's a matter of ethics. It
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1 BY MR. ROBINETT:
2 Q. WOULD you not agree, Mr. Salazar, that the best
3 time to obtain a rebuttal is before you have taken a
4 position on the situation?
5 A. I will agree with that.
6 MR. ROBINETT: I'll pass the witness.
7 MR. WOOD: Nothing further. Thank you,
8 Mr. Salazar.
9 MS. PEDERSON: Does the Administration have
10 anything further to present to this Board?
11 MR. WOOD: We do not, Your Honor.
12 MS. PEDERSON: Are you going to submit any
13 documents or --
14 MR. WOOD: Yes. At this time I would offer
15 the Administration Exhibit Nos. 1 through 24 as
16 previously provided to opposing counsel and as provided
17 to the chair.
18 MR. ROBINETT: And I would like to note that
19 before the hearing, Mr. Wood and I agreed that the
20 documents I presented to the Board were stipulated to,
21 and I would stipulate to the School District's exhibits
22 other than the student statements which are specifically
23 in tab 11, 17. Also, some of them are in tab one, and
24 if I have missed any, I would object to student
25 statements that pop up in any other tab as well.
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1 Q. Now, when you refer to that student -- let me
2 preface it by saying, have you ever intended to hurt any
3 student's feelings?
4 A. No.
5 Q. Have you ever intended to embarrass or humiliate
6 a student?
7 A. No.
8 Q. Or bully or intimidate them?
9 A. No.
10 Q. Let's go back to the student you were starting to
11 talk about with regard to the pretend videotape. Can
12 you explain to the Board what happened in that
13 situation?
14 A. Sure. I explained it to Mr. Salazar when he
15 called me in for that meeting. I told him that what I
16 used to do before that incident was I would record my
17 students' presentations for my communications class.
18 That's what she was in, she was in a communication
19 class. So it wasn't that I took time to set it up; it
20 was already set up because we had been having
21 presentations. And she had been misbehaving. She had
22 been off task. She and her two friends had been sitting
23 there distracting the rest of my class, and that day,
24 just like I mentioned to him, I moved about a third of
25 the class because they were being disruptive, and I
..TE.1.....1...1.1, ....
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1 wasn't going to tolerate that in my class.
2 Q. Was this about her twirling her hair?
3 A. No. It was -- she would be talking to them. She
4 would be off task. That would make them get off task
5 also, and everybody else in the class was doing their
6 job except for a few of the students that were around
7 her, and that's why I decided just to move everybody
8 just to be fair, and that's why I moved her. And then I
9 told her about taping her to make her correct her
10 behavior. Was there any tape? No, because Mr. Salazar
11 asked the technicians to look through every computer
12 that I had. That's the classroom computer, my laptop,
13 everything was looked through. There wasn't anything on
14 there.
15 Q. Did you pretend to tape her?
16 A. Yes.
17 Q. Now, you have heard Mr. Salazar and
18 Mr. Villarreal talk about how horrible that was and that
19 you were bullying or humiliating or intimidating the
20 student. Is that what you felt you were doing?
21 A. No. And they keep talking about putting her in
22 front of the class. She wasn't in front of the class.
23 She got moved to the front row; that's what happened.
24 It wasn't like I put her up at the podium that we have
25 in our class and said, "Okay. Stand up there and let's
II■afa■•■•••11■1■1•••■.=■,11+......1114%..1....
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1 keep the kids interested in it. Were some of them upset
2 because they were doing it? Of course, because some of
3 them actually had the BIM class also, which they
4 shouldn't have. You cannot have BIM before you take
5 keyboarding. It's a requirement, and yet they had that.
6 Q. The implication was made that you were trying to
7 convey that you didn't think the keyboarding class was
8 important. Do you ever talk to the students about the
9 importance or lack of importance of keyboarding?
10 A. My class is -- I graduated in 1977 from Hanna. I
11 did not have to take keyboarding back then or typing as
12 it was called back then, but I did take it because I
13 knew the importance of it. I knew that if I went to
14 college, I was going to have to type out papers and
15 reports. It was not a required course back then. Some
16 of you are old enough to remember that, and yet I took
17 it. So why would I not encourage it? I just don't
18 encourage it as a one-year, full semester class because
19 there's just not enough material.
20 Q. Now, back to the student that you did a pretend
21 video of, was it your intention to try to embarrass her?
22 A. No.
23 Q. What was it that you were trying to accomplish?
24 A. I wanted her to change her behavior in my class
25 and to quit disrupting my class with her two friends
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1 that were always sitting with her, so I decided to move
2 her. My policy is -- I don't set them up -- line them
3 up A, B, C, D. I don't line them up that way. They
4 come into my class. I say, "You sit where you would
5 like to sit," and unless something like this happens
6 where the behavior has changed that is disruptive to my
7 class, then I start assigning seats, but other than
8 that, they can literally sit wherever they want. That
9 was back then, that's it's now. And that was last year.
10 I still do it -- this year, I still do it that way.
11 Q. Now, you mentioned that you had spoken with the
12 Administration about that incident --
13 A. Uh-huh.
14 Q. -- and what was -- what were you told by the
15 principal and by Mr. Salazar concerning their viewpoint
16 of it?
17 A. They said that it wasn't proper gauche. I have
18 trouble saying the word, but for education purposes, it
19 was not proper; that it was bizarre was Mr. Salazar's
20 comment, which kind of hit the spot there with me.
21 Q. It didn't seem to be bizarre at the time you were
22 doing it?
23 A. No. It was just a way of correcting it. I've
24 been in management most of my life. I have dealt with a
25 lot of people's money. I've had a lot of secretaries
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1 and a lot of assistants, and the thing is, too -- when I
2 was at Wal-Mart, if I did what happened to me here,
3 would have gotten fired as a manager because I didn't
4 follow protocol. You talk to them. You tell them what
5 the situation is. You give them corrective behavior.
6 If they don't follow corrective behavior at Wal-Mart,
7 you tell them, "This is what you're going to do. If you
8 don't want to follow it, then you're going to get
9 fired." Nowhere in this situation did they do that. I
10 wasn't spoken to about this last notice until it
11 actually happened, that they gave it to me.
12 Q. Well, after Mr. McDonough and Mr. Salazar voiced
13 their displeasure with the way you handled the
14 situation, what action did you take?
15 A. I have never recorded a student again. I haven't
16 done it in -- I mean, my whole Banking and Finance class
17 changed as far as -- they still do presentations, but we
18 can't critique them, which is important for a person to
19 see themselves -- it's real easy for me to say, "You did
20 this wrong. You should have been standing proper. You
21 should have been" -- but for a student to actually --
22 whether they're in high school or whether they're in
23 college -- and it's an articulate class. It should be
24 taught like it was in college.
25 For them to really understand what they're doing
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1 wrong and what they need to correct in a presentation,
2 it's a lot easier for them to see themselves because
3 then it's not like, "Oh, he's just telling me stuff."
4 They actually get to see themselves, and that's why they
5 were recorded. And, also, they have the benefit of
6 taking it to their parents and showing them the kind of
7 work that they're doing in my class.
B Q. So the recording wasn't something that you
9 thought would embarrass the student; they were used to
10 it?
11 A. Right.
12 Q. But you haven't done it since then?
13 A. No, because of what happened.
14 Q. Now, the other thing that occurred in the
15 previous school year was the showing of a movie in your
16 class. Can you explain to the Board how that came
17 about?
18 A. I was moved from -- I had to use the lab in 609,
19 which is now my current classroom, so I was moving from
20 613 to 609, and so I took my whole class over there to
21 do their assignments, and Ms. Padilla was using the
22 classroom for testing. So after we had set up
23 everything, they came in, and we had to literally get up
24 and go back to our classroom. And they started talking
25 about showing a movie, and that's not an uncommon thing
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• •••••••••••••••*•- fr..- •
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1 in our district or our high school or at United where if
2 something goes -- changes, and people show movies.
3 Now, it's not something that I normally do, but
4 the kids kept on and kept on. "It's only about 20 more
5 minutes until the bell. Just show us a little bit of
6 it." And a student suggested a movie, and they
7 mentioned that they had already seen it in another
8 class. I just took it for granted that it was okay.
9 They told me which one it was. I said it's PG-13, and
10 so it seemed okay because of the age -- it's a national
11 certification. It's not just me coming up with the
12 PG-13. That's the national certification for the movie.
13 Q. Now, was that your plan that day to show a movie
14 in your class?
15 A. No, and that's why it wouldn't have been on my
16 lesson plan because it wasn't part of it. My lesson
17 plan was to go into the lab and have -- go through their
18 exercises.
19 Q. And, again, you left the lab why?
20 A. Because Ms. Padilla went in there to do some
21 testing.
22 Q. Ms. Padilla is who?
23 A. Ms. Padilla is the assistant principal, the Dean
24 of Instruction of there.
25 Q. So Ms. Padilla removed you from the lab?
■
••■■■••.-.
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1 A. Right.
2 Q. Which interfered with your class that day?
3 A. Yes.
4 Q. When you got back to your classroom, how much
5 time was left?
6 A. About 20, 25 minutes.
7 Q. And were you -- did you have enough time at that
8 point to go ahead with your lesson for the day?
9 A. No. It wouldn't have been -- normally, a lesson,
10 they're going to run maybe 45 minutes, maybe 50, 55, and
11 they're going to give the children or the students time
12 to do their exercises, to work on their assignment so we
13 can correct whatever is wrong.
14 Q. So how much time was left when you got back to
15 the class?
16 A. About 25 minutes.
17 Q. And how much time was the movie playing?
18 A. They saw maybe the first 10, 15 minutes.
19 Q. Now, you said that you were told by these
20 students that some other teacher had shown the same
21 movie?
22 A. Yes.
23 Q. But after you showed the movie, which is PG-13,
24 again, the Administration asked you to talk to them
25 about it; is that right?
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1 A. Talk to the kids about it?
2 Q. No. Talk to you -- the Administration talked to
3 you about it.
4 A. Yes. I told them that -- the way it was written
5 out, the Notice of Warning, it implied that the whole
6 movie had been shown, and it wasn't. And when the
7 students came back the next day and they wanted to
8 finish seeing it, it was, like, no, because, then, I had
9 finished seeing it. It was, like, okay, I understand
10 you might not want to show it, and I didn't.
11 Q. Now, after you were talked with about the movie
12 and you received the Notice of Warning, which was
13 brought up previously, what action did you take as far
14 as movies were concerned in the future?
15 A. I haven't shown a movie since.
16 Q. Have you even tried to show a movie -- to get
17 permission to show a movie?
18 A. I asked Mr. Villarreal one question this
19 semester, and it was -- the kids kept telling me they
20 wanted to see Pitch Perfect. I have never seen the
21 movie, and they kept nagging me and nagging me about it.
22 I said, "I don't show movies," and I was, like, "Okay,
23 fine. Let me call him up and let me ask him," and
24 Mr. Villarreal said no because there's some language, I
25 believe. Again, I haven't seen the movie, but what the
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1 kids were telling me is that they had watched part of
2 the movie at the gym when they were doing the testing,
3 so how is that being -- how does that even fit into
4 anybody's lesson plan?
5 Q. But the bottom line is once you were told not to
6 show movies without getting permission, you have not
7 shown any movie at all?
8 A. Right, I haven't. I haven't even bothered to.
9 When I talked to Mr. Villarreal about that particular
10 one, it was just to get the kids off my back because
11 they kept saying, "Well, we see it in the gym." It was,
12 like, "Well, this isn't the gym," and I wasn't going to
13 risk anything because I truly have enjoyed working for
14 this district.
15 Q. All right. Now, would you take a look at the
16 Notice of Warning you received on March the 5th, which I
17 believe is the School District's Exhibit 8?
18 A. 8?
19 Q. I'm trying to verify that. Yes, No. 8.
20 A. Okay.
21 Q. And the first item on that was that there was a
22 complaint that you questioned a student's manner of
23 dress although the student was not violating dress code
24 policy. Now, Mr. Villarreal states that he discussed
25 that matter with you; is that correct?
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1 A. Yes.
2 Q. Did he discuss it with you before he gave you the
3 Notice of Warning or the memorandum about that? It
4 wasn't a Notice of Warning, but before he counseled you
5 about that incident?
6 A. Yes. Your question one more time.
7 Q. Well, did he get your side of the story before he
8 wrote you up about the suspenders and belt incident?
9 A. Yes, he got my side of the story before he wrote
10 me up, and that's what the -- the E-mail that I sent
11 back to him, I asked him at that point if I violated any
12 policies. He said no.
13 Q. Now, can you explain to the Board what happened
14 in connection with this student who was wearing the
15 suspenders and a belt?
16 A. He came up to my desk because he wanted his --
17 his log-in and his password weren't working. When he
18 got close to my desk, I saw his suspenders and his belt,
19 and when he got close to my desk -- it just -- I asked
20 him whether he -- why he was wearing them, if he knew
21 that you usually don't wear suspenders with belts.
22 Q. What was your intent in doing that?
23 A. Well, my intent was to make sure that somebody
24 didn't make fun of him because -- unless things have
25 changed, and apparently they have, I mean, I don't -- we
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1 don't wear belts with suspenders without having somebody
2 say something about them, and I just was trying to make
3 sure that he didn't get made fun of. It wasn't an
4 intention to hurt. When we were discussing this,
5 Mr. Salazar (sic) mentioned that the boy had issues, and
6 I was, like, "Well, you should tell us if he has social
7 issues so that we can handle him a different way. Does
8 he have modifications?" "No," and he mentioned that,
9 too.
10 Q. What do you mean by Mr. Villarreal told you that
11 he had issues?
12 A. He said that he had had him at the middle school
13 that he was at before and that he had a hard time
14 dealing with other students, other people.
15 Q. So was the implication that you got that he was
16 very sensitive?
17 A. Yes.
18 Q. Did you have any reason to believe that before
19 this incident?
20 A. No, because I had missed a lot of days at the
21 beginning of the semester because I was sick.
22 Q. Now, when you made this statement, were you
23 trying to bring that to the attention of the entire
24 class?
25 A. No. I was just trying to let him know that you
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1 normally don't do that, to help him out.
2 Q. Did you take any steps that you thought would
3 keep it out of the purview of the rest of the class?
4 A. I didn't think I was talking loud.
5 Q. There was an allegation made in one of the
6 documents, which we have objected to as hearsay, which
7 said something about a light switch and -- being on or
8 off and having something to do with this student N.N.
9 Do you recall that incident?
10 A. I know that I have used that before because it's
11 a programming situation. It's called a bleam. It's
12 either on or off. It's a yes-or-no answer, if you're
13 familiar with it, and programming is -- I teach visual
14 basic. That's an application. We do -- actually do
15 programs that come up on your screen and you can enter
16 information. It does calculations for you. It does
17 reservations, so I have used it before as an example in
18 class on how things work as far as answering yes or no.
19 Now, do I remember using it that day, no. My
20 response is the same thing; I don't remember using it
21 that day, but -- like I said, I was sick. I had come in
22 and I thought I was well, and, like I said, when I was
23 talking to him, I thought I was talking just between him
24 and me to hear, not for the rest of the class.
25 Q. Well, did the incident with the on/off switch,
Electronically signed by Tracie Wilson (601-098-354-1200) bb7ca2ed-3bda-4896-a5c0-8e7b62fc9004
Los Fresnos CISD L.R. 0133
Page 159
1 by pointing you back to that last exhibit that you
2 looked at, which was Exhibit No. 7, Mr. Vazquez' own
3 letter when he applied for employment with the District,
4 and this is the statement that he said when he applied
5 for employment with Los Fresnos Consolidated Independent
6 School District. He said, "A tyrant should not run the
7 class but an understanding teacher," and I'm going to
8 tell you, that's what Mr. Salazar is asking you to do is
9 make sure that a tyrant is not running the class but an
10 understanding teacher instead. Thank you.
11 MS. PEDERSON: Mr. Robinett, you may now
12 make closing argument. The argument will be limited to
13 not more than five minutes.
14 MR. ROBINETT: The humorous thing about the
15 Administration's close was its first few words where it
16 said, "The evidence speaks for itself." There is no
17 evidence. This is the most pathetic example of a lack
18 of evidence that is imaginable. All you have is the
19 Administrative coming here and saying, "Somebody told me
20 that somebody did something else." That's all you have.
21 You don't get a chance to cross-examine or to consider
22 anything that is being told to you by the people who
23 actually claim to have experienced it to see whether
24 they are people who are credible when they're asked
25 directly about their statements or asked to put things
11146...16.
Electronically signed by Trade Wilson (601-098-354-1200) bb7ca2ed-3bda-4896-a5c0-8e7b62fc9004
Los Fresnos CISD L.R. 0159
Page 160
1 in context where they can say, well, either they're
2 lying, or, you know what, you have a point. I didn't
3 recall that. Now that you put it in context, what I was
4 saying, it isn't quite as clear even though it happened
5 a few months earlier.
6 There's nothing resembling evidence, so you
7 can say you're not going to apply the strict rules of
8 evidence in this case, but there has to be something
9 resembling evidence. There is nothing. The whole thing
10 is a sham. Now, I have to mention one other thing,
11 which is that it's contemptible what the Administration
12 has done to try to imply that there's any sexual
13 connotations just because Mr. Vazquez is saying nice
14 things to people.
15 Every time a male says a nice thing to or
16 about a female, it's not sexual, and it's shameful that
17 Mr. Salazar would allow that to happen, allow that
18 implication to even be out there, and you ought to
19 sanction him for doing it. You've talked about
20 bullying. There is bullying going on in this case, but
21 it's bullying by the Administration of Mr. Vazquez.
22 Mr. Vazquez has not bullied anyone, that -- what the
23 District is going to have happen tonight, if it goes
24 ahead and follows Mr. Salazar's advice, is to lose a
25 great teacher and a great person. Not a good teacher,
Electronically signed by Trade Wilson (601-098-354-1200) bb7ca2ed-3bda-4896-a5c0-8e7b621c9004
Los Fresnos CISD L.R. 0160
TAB B - No. 1
Jeanette Seifert v. Lingleville
1983 TX Ethic. Agency LE IS 174
Copyright (c) 1983 Texas Education Agency
January 27, 1983; January 27, 1983
DOCKET NO. 174-R I a-782
Reporter
1983 TX Educ. Agency LEXIS 174
JEANETTE SEIFERT v. ; LINGLEVILLE INDEPENDENT SCHOOL DISTRICT
Core Terms
nonrenewal, teacher, incompetent, hearsay, notice, substantial evidence, board of trustees, rerd, term contract, school
district, local board, school year, excited, utterance
Panel: I II RAYMON L. BYNUM, COMMISSIONER OF EDUCATION
Opinion
DECISION OF THE COMMISSIONER
Statement of the Case
Jeanette Seifert, Petitioner, brings this appeal from an action of the Board of Trustees of Litteleville Independent School
District (LISD), Respondent, to nonrenew her teaching contract for the 1982-83 school year.
Mark W. Robinett is the Hearing Officer appointed to prepare this Proposal for Decision and such other documents as may
be necessary in this case. Petitioner is represented by Dianne E. Doggett, Attorney at Law, Austin, Texas. Respondent is
represented by Marilyn Shell, Attorney at Law, Stephenville, Texas.
On November 16, 1982, the Hearing Officer entered a Proposal for Decision recommending to the State Commissioner of
Education that Petitioner's appeal be granted. The record reflects that a copy of the Proposal for Decision was received by
all parties, and that Respondent's Exceptions to the Hearing Officer's Proposal for Decision were filed on December 8,
1982. No replies to Respondent's Exceptions were filed.
Findings of Fact
Having considered all evidence and matters officially noticed, in my capacity as State Commissioner of Education, I make
the following Findings of Fact: 1 21
1. At all times relevant to this appeal, Respondent had in full force and effect School Board Policy DOAD (Ex. C) which
provides, in part, as follows:
Reasons for nonrenewal of a professional certified employee's contract shall be:
I. Deficiencies pointed out in observation reports, evaluations, or other Supplemental memoranda.
3. Incompetency
15. Any activity, school-connected or otherwise, that because of publicity given it, or knowledge of it among students,
faculty, and community, impairs or diminishes the employee's effectiveness in the District.
MARK ROBINETT
Page 2 of 5
1983 TX Educ. Agency LEXIS 174, •4
2. Petitioner was given written notice on March 2, 1982 that the superintendent had recommended to the Board of Trustees
that Petitioner's contract be nonrenewed because of a "community feeling of incompetence." Ex. D.
3. On March 29, 1982, a hearing was held before LISD's Board of Trustees on the issue of the proposed nonrenewal of
Petitioner's contract.
4. After the hearing on March 29, 1982, LISD's Board of Trustees voted to nonrenew Petitioner's contract for the I982-83
school year.
Discussion
Petitioner contends that the nonrenewal of her contract by LISD's Board of Trustees is invalid under the Term Contract
Nonrenewal Act (TCNA), I 31 .r•%. Ethic. Cod( 4,in._§ 21.21' et seq. (Vernon Supp. 1982), because (I) the reason given
Petitioner for her proposed nonrenewal (i.e., "community feeling of incompetence") is not listed as a reason for nonrenewal
in Policy DOAD; (2) a "community feeling of incompetence" is not a proper basis for nonrenewal, because it is not
educationally related; and (3) there is not substantial evidence of incompetency, which is the only reason for nonrenewal
listed in Policy DOAD of which she had fair notice.
Respondent, on the other hand, contends (I) that its decision is not subject to the TCNA, because Petitioner's contract was
signed before the Act took effect; (2) it is not requisite for a district's policy reasons for nonrenewal to be educationally
related; (3) "community feeling of incompetence" is nonetheless an educationally related standard which encompasses the
three reasons for nonrenewal in Policy DOAD, previously set forth; (4) the Petitioner waived any defect in the notice by
participating in the March 29 hearing; and (5) its decision is supported by substantial evidence.
I. "Community Feeling of Incompetence"
Section 21.203(b) of the TCNA instructs 1'.I1 boards of trustees to establish policies which establish reasons for
nonrenewal. Section 21.204 requires the local board of trustees to give a teacher written notice of a proposed nonrenewal,
which contains a statement of all the reasons for the proposal. Viewing the Act as a unified procedural scheme for dealing
with the nonrenewal of term contracts, it must be concluded that a teacher cannot be nonrenewed for a reason of which
he or she has not been given fair notice.
"Community feeling of incompetence" is the only reason for nonrenewal of which Petitioner was given written notice. It
is a reason inconsistent with the purposes of the TCNA. Section 21.203(b) of the Act, which requires the local board of
trustees to establish reasons for nonrenewal, has no purpose if not to provide the individual teacher with advance notice
of what he or she must do in order to retain his or her position with the school district. For example, a teacher might be
reasonably required to do such things as prepare lesson plans; keep proper records; be punctual; be competent; avoid
activities which could impair or diminish the teacher's effectiveness in the district; and cultivate a working relationshipl 51
with parents, the community, and colleagues. However, a teacher cannot reasonably be required to control the community's
perception of his or her competence as an instructor.
A holding to the effect that a school district may nonrenew a teacher for a reason over which the teacher has no control
would render § 21.203 an extremely futile piece of legislation; the teacher's situation would he only negligibly improved
over the days in which he or she could be nonrenewed for no reason or any reason, with the exception, of course, of a reason
prohibited by federal law. A teacher could be nonrenewed for the reason that "the superintendent (or principal, or one
member of the board of trustees) thinks you are incompetent." As long as the superintendent (or principal, or one member
of the board of trustees) were to state under oath that, in his or her opinion, the teacher in question was incompetent, that
one line of testimony, by itself, could serve as sufficient evidence to support the board of trustees' nonrenewal decision on
appeal to the Commissioner.
The TCNA does not contemplate such a roundabout method of nonrenewing a teacher; it was not enacted to allow the
nonrenewal of a competent 1 61 (or excellent) teacher based on second hand accounts of the talcs of children which grow
more exaggerated with each retelling. In short, the community's perception of a teacher's competence is irrelevant. What
MARK ROBINETT
Page 3 of 5
1983 TX Educ. Agency LEXIS 174, "6
is relevant is whether or not the teacher actually is competent and the evidence pertaining to that issue. "Community feeling
of incompetence," therefore, is not a permissible reason for nonrenewal and it is unnecessary to decide whether there was
substantial evidence before the Board of Trustees in support of that reason.
2. Actual Incompetency
In her brief concerning the issue of substantial evidence, Petitioner acknowledges that she received fair notice of the reason
of "incompetency." It must, therefore, next be determined whether there was substantial evidence before the Board of
Trustees to support this reason.
The evidence at the hearing before the Board of Trustees in support of the Board's decision consisted of the following: (I)
the superintendent's testimony concerning his opinion that the Petitioner was incompetent, based on "items presented to
[him]" by school board members (Tr. 9); (2) the testimony of parents in the community concerning their reasons for
believing 1'71 that Petitioner was incompetent, based on statements made to them by their children; and (3) Petitioner's
failure rate (Resp. Ex. H).
All of the above evidence, except the failure rate, is merely hearsay: the superintendent's testimony is based on information
related to him by members of the Board of Trustees, which was related to them by parents in the community; and the
parents, in turn, based their conclusions on statements made to them by their children.
Although Petitioner's failure rate, which was not based on hearsay, was the highest in the school (Tr. 68), that fact alone
does not necessarily indicate that Petitioner is incompetent. The most failing grades in the school district could just as well
be assigned by an excellent teacher with high standards. In addition, if the grades assigned by a teacher are to be taken as
an indication of a teacher's competence, a teacher who assigns every student an "A" could use that fact as evidence that
he or she had attained a high level of teaching competence.
Also introduced into evidence before the Board of Trustees were the administration's evaluations of Petitioner, the
consideration of which by the Board is required by § 21.202 of 81 the TCNA. The most recent evaluation, dated February
16, 1982, is generally supportive of the Petitioner.
Under the circumstances, it must be concluded that the Board of Trustees' decision was not based on substantial evidence
of actual incompetency.
3. Applicability of the TCNA to Petitioner
The only contention of Respondent 1-91 that has not been resolved to this point is its assertion that Petitioner is not entitled
to the protections of the TCNA because she had signed her contract for the 1981-82 school year before the Act took effect
on August 31, 1981. As of the effective date of the TCNA, the local board of trustees became obligated to comply with
the Act's terms if it should "choose not to renew the employment of any teacher employed under a term contract effective
at the end of the contract period." The date on which the teacher signed his or her contract does not affect that obligation
in any way.
Respondent's Exceptions to Proposal
In its Exceptions to the Hearing Officer's Proposal for Decision, Respondent contends that the hearsay rule did not apply
to the local school board hearing in this case, inasmuch as § 21.205(b) of the TCNA authorizes the local school district to
• Even were the evaluations otherwise, it should be noted that they would not constitute substantial evidence in and of themselves in
a case in which the person making the evaluation does not testify. The thrust of the TCNA is to require (I) administrators to conduct
honest evaluations, (2) local boards of trustees to consider those evaluations prior to giving notice of any proposed nonrencwals, and (3)
the evaluators to appear at any hearing before the local boards of trustees and testify concerning the accuracy of and the basis for the
evaluations. This observation should not be construed to mean that a local board of trustees is bound by the evaluation and testimony
of an evaluator or that this is the only means by which substantial evidence may be adduced at a local hearing: however, this process
is certainly one of the principal concerns of the Act.
MARK ROBINETT
Page 4 of 5
1983 TX Educ. Agency LEXIS 174, *9
conduct the required hearing in accordance with rules promulgated by the district. Respondent's Policy DOAD states that
"the Board may consider only such evidence as is presented at the hearing and need consider only such evidence as it
believes to be fair and reliable." Respondent, therefore, argues that it "could properly consider I 1111 any evidence presented
at the hearing which the board believed to be fair and reliable, whether hearsay or not."
Regardless of the manner in which the local board of trustees structures its hearings, however, § 21.207(a) of the TCNA
authorizes the Commissioner of Education to review the decisions of local school boards in nonrenewal cases on a
substantial evidence basis. It is well established that when the legislature uses a word, such as "evidence," which has a
settled legal significance, it is presumed to have been used in that sense. 1-ira National BanA nl Mineola I, Farmers
Suite Bank. 417 5.11.2,1 117. 329 (Tex. Civ. App. -- Tyler 1967, writ rerd n.r.e.).
In the present case, it is not necessary to define precisely what "evidence" is, because it is clear what "evidence" is not:
"In Texas the hearsay rule applies in administrative hearings, just as it does in court. And it is a rule that forbids the
reception of evidence rather than one that merely goes to the weight of the evidence." Spoti»Iton.. Sitriov4.c
Avcnciarion. 5.11:201 INN. /56 (To. 19721.
Respondent contends, however, that the hearsay in this case should L. I i I he accorded some weight, because it was not
objected to even though it could have easily been refuted if not true. Respondent cites li
(Tex. Civ. App. -- Amarillo 1963, writ rerd n.r.e.) in support of this proposition. That case, however, is contrary to the
otherwise well-established rule in Texas that hearsay evidence is "wholly incompetent and without probative force, and can
never form the basis for establishing a cause of action, finding of fact, or judgment of court, whether objected to nor not."
White r. White. 590 S.11:211 557.559 (Tex. Civ. App. -- Houston [1st Dist.] 1979, no writ). See also Aetna Insurance
Company r. Klein, 325 S. W.2sl 376, 379 (Tex. 19591: Ii. co, v. Thonlii,. 57') 11:2(/ 46. 4' (TM Civ. App.
-- Beaumont 1979, writ ref d n.r.e.); Alain Think Trust 11 571 S.11:241 222. 224 (Tex. Civ. App. -- El Paso 1978, writ
ref d n.r.e.); Perkins r. Spritiontn. 557 S. WI/ 345 (Tex. Civ. App. -- Austin 1977, writ recd n.r.e.); 11,tnAan Artm/mc
Corp I. Pal-Mde Cony. ca.. 554 S.41:2(1 712. 723 I921 (Tex. Civ. App. -- Dallas 1977, writ reed n.r.e.); 1 .rtited Set tic e.■
.tutoutobile As.5'n t. Ratterree. 512 S,U 2d 30..1 (Tex. Civ. App. -- San Antonio 1974, writ recd n.r.e.); !bight 5 t. Suite.
51)5 S.;1:2t1 /67. /69 (Tex. Civ. App. -- Corpus Christi 1974, writ ref' d n.r.e.); Clil, I. Dunn. -177 S 2,1 (vii. 642 (Tex.
Civ. App. -- Waco 1972, no writ).
In addition, in Hamill. tt AricAets Ginnitn; Company. -196 S.11:241 755. 792 (Tex. Civ. App. -- Amarillo 1973, no writ), the
same court that decided Marion, on which Respondent relies, stated, in regard to certain hand printed notations on a
document, "The hand printed notations arc hearsay and inadmissible as proof of any fact . ..; and the notations appearing
on the drafts admitted into evidence with or without objection are incompetent to establish any fact or to form the basis
of a judgment." That court had previously held to the same effect in Seunp.tan I. Aiwa Oil Col voration. 476 S.11:11 431).
(Tex. Civ. App. -- Amarillo 1972, no writ). Respondent's contention that hearsay testimony can be considered by 14'131
the Commissioner in support of a nonrenewal decision is, therefore, unpersuasive.
Finally, in regard to hearsay, Respondent argues that the testimony of Mrs. Bays (Tr. 31) that her daughter came home
crying and upset because Petitioner had "hollered" at one of her friends, was admissible under the excited utterance
exception of the hearsay rule. To constitute an excited utterance, however, the statement must be made before there has been
time to contrive and misrepresent; it must be "made under circumstances which raise a reasonable presumption that it is
the spontaneous utterance of thought created by or springing out of the [exciting] occurrence itself and, so to speak,
becomes a part of the occurrence." 1 In addition,
there must be proof independent of the excited utterance, of the exciting occurrence, In the present case, the only
evidence of the occurrence is the hearsay statement which, like the proof at issue in Michling, "is attempting to lift itself
by its own bootstraps." Id. Mrs. Bays' testimony, therefore, is inadmissible even under a I 14 liberal construction of the
excited utterance exception to the hearsay rule.
One other exception which merits response is Respondent's contention that applying the TCNA to a contract signed before
the Act's effective date constitutes a violation of the provisions of the Texas and United States Constitutions which prohibit
impairment of contractual obligations. Respondent argues as follows:
MARK ROBINETT
Page 5 of 5
1983 TX Educ. Agency LEXIS 174, *14
The general rule is that operational policies promulgated by a school board prior to making a contract of employment with
a teacher form part of the contract, and the teacher's employment is subject thereto. ion c n 1. Colollot liblepenikva School
111 ■1,1 1, 6 2_1 (Tex. Civ. App. -- Corpus Christi, 1980, reid n.r.e.). It is undisputed that under the policies and
statutes in effect as of June 21, 1981, Respondent could lawfully nonrenew Petitioner's term contract in its sole discretion
without any reasons. 11 1 1S. I LP IT /0 1: COM. S . At the time the contract was executed, Petitioner had no
"property" interest in employment beyond the 1980-81 (sic) school year, and Respondent had the right to nonrenew the
contract. The 1 151 proposed retroactive application of the Term Contract Nonrenewal Act would impermissabty (sic)
impair Respondent's contractual rights to spend local funds on teachers the board chose to renew.
There is no evidence, however, that Respondent had promulgated any operational policies prior to making the contract of
employment with Petitioner which would allow it to nonrenew Petitioner's term contract at its sole discretion without any
reasons.
As for Respondent's reliance on the fact that Petitioner had no property interest under State law in employment beyond
the 1981-82 school year at the time the contract was executed, it must be determined whether Respondent had a vested
interest in Petitioner's status at the time the contract was signed. Wood I. Lot cu. 313 1'.5 362. 371 11V-111. There is,
however, no property right or vested interest in any rule of common law; the Constitution does not forbid the creation of
new rights, or the abolition of old ones recognized by the common law, to attain a permissible legislative objective, despite
the fact that "otherwise settled expectations" may he upset thereby.
1.161
Respondent's expectation, therefore, that, under common law, Petitioner would continue to have no property interest in
employment beyond the 1981-82 school year, was a mere expectancy, contingent on the action (or inaction) of the
legislature. Upon the enactment of the TCNA, that expectation ceased and Respondent became bound to honor Petitioner's
newly created statutory rights.
Conclusions of Law
After due consideration of the record, matters officially noticed, and the foregoing Findings of Fact, in my capacity as State
Commissioner of Education, I make the following Conclusions of Law:
I. Petitioner was entitled to the benefits afforded by the Term Contract Nonrenewal Act.
2. Petitioner could not properly be nonrenewed pursuant to the Term Contract Nonrenewal Act because of a "community
feeling of imcompetcncy.
3. There is not substantial evidence of actual incompetency.
4. Petitioner's appeal should be, in all things, GRANTED.
ORDER
After due consideration of the record, matters officially noticed, and the foregoing Findings of Fact and Conclusions of
Law, in my capacity as State Commissioner of Education, it is hereby
ORDERED that Petitioner's appeal be, in all things, GRANTED. I 17 1
SIGNED AND ENTERED this 27th day of Jan., 1983.
MARK ROBINETT
TAB No. B-2
Kathy Anderson v. Jacksonville
Independent School District
1997 TX Educ_Lb
17ency LEXIS 78
Copyright (c) 1997 Texas Education Agency
I 997; 1997
DOCKET NO. 142-R 1 -397
Reporter
1997 TX Educ. Agency LEXIS 78
KATHY ANDERSON ; v. ; JACKSONVILLE INDEPENDENT SCHOOL DISTRICT
Core Terms
nonrenewal, hearsay, teacher, school year, notice, good cause, coach, recommend, terminate, substantial evidence to
support, girl's
Panel: 1 11 MIKE MOSES, COMMISSIONER OF EDUCATION
Opinion
DECISION OF THE COMMISSIONER
Statement of the Case
Petitioner, Kathy Anderson, appeals Respondent's, Jacksonville Independent School District's, decision to nonrenew her
contract.
Christopher Maska was the Administrative Law Judge appointed by the Commissioner of Education to preside over this
cause. Petitioner was represented by Mr. Kevin F. Lungwitz, Attorney at Law, Austin, Texas. Respondent was represented
by Mr. John C. Hardy, Attorney at Law, Tyler, Texas.
Findines of Fact
I. On March 3, 1997, Respondent Jacksonville Independent School District voted to nonrenew Petitioner's, Kathy
Anderson's, I995-1996 contract.
2. On March 24, 1997, Petitioner filed her Petition for Review.
Discussion
Jurisdiction
Petitioner contends that Respondent failed to give her notice of proposed nonrenewal as required by
2I.2w) ibi. Petitioner points to the fact that the notice states:
YOU ARE HEREBY NOTIFIED that the Superintendent of Jacksonville ISD has recommended to the board of
trustees at a lawfully called meeting of the Board of Trustees on April 3, 1996, that your employment 1 2] contract
as teacher/coach in the District not be renewed for the succeeding school year.
This notice nowhere states that the board adopted the recommendation. However, the document is entitled "NOTICE OF
PROPOSED CONTRACT NONRENEWAL." It states, "This notice is given pursuant to the provisions of 21.206
MARK ROBINETT
Page 2 of 5
1997 TX Educ. Agency LEXIS 78, *3
(j the Texas- Ethitittion Code, as amended in 1995." The document is signed by the President of the board, as representing
the board. Further, the board did, in fact, vote to propose nonrenewal of Petitioner's contract. While the notice is not a
model of clarity, it is a notice of proposed nonrenewal. It is also an official notice from the board of this fact. The
requirements of are met by the notification.
Must A Principal Propose
Petitioner contends that a district may not nonrenew a teacher unless a principal recommend nonrenewal. The
Code 11.21)2 (h ) reads:
Each principal shall:
(6) recommend to the superintendent the termination or suspension of an employee assigned to the campus or the
nonrenewal I .1] of the term contract of an employee assigned to the campus; and.
While principals are given the authority to recommend teachers for nonrenewal, there is nothing to indicate that this power
is exclusive. In fact, the Education Code is clear that a superintendent, not a principal, initiates a nonrenewal:
The duties of the superintendent include:
(4) initiating the termination or suspension of an employee or the nonrenewal of an employee's term contract.
"Tedc Lir/ea/ion CO3/e //.21)/ (d), Principals are to recommend nonrenewal to superintendents, but a decision of a
principal not to recommend nonrenewal does not deprive a superintendent of the authority to initiate a nonrenewal
proceedings against a teacher's contract.
Substantial Evidence
Petitioner contends that there is not substantial evidence to support the reasons for proposed nonrenewal. In particular,
Petitioner contends that Respondent's case is based on hearsay that was admitted over objection, Petitioner is correct that
properly objected to hearsay cannot support a board's decision. Further, there is much properly objected to hearsay that was
allowed in. Mr. Mooring's 1 41 statements to Dr. Turner were improperly held not to constitute hearsay. (Tr. 23). The girl's
basketball coach's statements to Dr. Turner were improperly held not to constitute hearsay. (Tr. 32). Parents' statements to
Mr. Long were improperly held not to constitute hearsay. (Tr. 76). Pages 4 and 5 of Administration Exhibit 6 was
improperly held not to he hearsay. (Tr. 81, 83). The question to be decided is whether there is substantial evidence to
support the board's decision excluding properly objected to hearsay.
Petitioner's contract with the district was for the 1995-1996 school year. Events that occurred earlier than the 1995-1996
school year cannot constitute reasons for nonrenewing the 1995-1996 contract unless the district was not aware of the
events when they occurred. Successfully hiding serious failings will not be rewarded. While failings in a previous contract
term cannot usually support action against the current contract, the fact that a failing occurred, a teacher was reprimanded,
and the teacher committed the same act in the current term shows a willfulness that makes the present violation more
serious. In this case, Respondent alleges violations such as studying 1 51 instead of coaching during tennis tournaments,
which occurred in the previous contract period, were known to the district, and were not repeated. These violations cannot
form the basis for nonrenewing the 1995-1996 contract.
Petitioner held a dual assignment contract: teacher and coach. Petitioner taught math. There is not substantial evidence to
support the claim that Petitioner was not a good math teacher or that she violated policy in relation to teaching math.
Petitioner was the girl's volleyball coach and the assistant girl's basketball coach during the 1995-1996 school year. While
the evidence is conflicting and at times sparse, there is substantial evidence to support the reasons for nonrenewal. For
example, there is substantial evidence that Petitioner did not maintain good effective working relationships with the girl's
basketball coach and with parents.
MARK ROBINETT
Page 3 of 5
1997 TX Educ. Agency LEXIS 78, *5
Petitioner contends that she was not given a chance to remediate. There is no right to remediation. However, if a chance
to remediate is not given, a violation may not be sufficiently serious to support nonrenewal. Remediation works in different
but related ways in termination and nonrenewal cases. In a termination case, concerning 1'61 a term contract, the board
must show either good cause or financial exigency. Good cause is a high standard. It is met when a teacher's actions are
so serious as to destroy a vested property right. In a nonrenewal case, the standard is not as high as good cause. A vested
property right is not destroyed when a district decides not to offer a teacher a new contract. The standard in such a case
is whether the teacher violated the standards established by the district I. Tends nhreatirrii Code § 21.203. Since the
standard for nonrenewal cases is lower than the standard for termination cases, a lessor violation is sufficient to support
board action. Hence, if a violation was only sufficient to support a termination after remediation was offered, the same
violation without an opportunity for remediation may be sufficient to support a nonrenewal. In this case, Petitioner was
given some opportunities for remediation and where the opportunity was not given, the violations 1 71 were sufficient to
support a nonrenewal.
Delay in Decision
Petitioner contends that even if Respondent's decision to nonrenew is upheld, that she should be paid for the 1996-1997
school year up until the time the board decided to nonrenew her. Petitioner, however, does admit that she waived the
requirement that the hearing be held within 15 days. L. Coi/c 21.21r. By giving a blanket waiver, Petitioner
consented to the possibility that the decision would not be complete before the start of the next school year. A better practice
would he to agree on a specific date for holding the hearing. However, just because a teacher waives the requirement that
a hearing be held within 15 days does not mean that a school district can choose not to hold a hearing. A TC ki(3 Edit/ iltilon
cause of action would lie if a school district refused to set a hearing within a reasonable time. In this case,
the evidence does not indicate Respondent unreasonably delayed the hearing.
Because Respondent gave Petitioner notice of proposed nonrenewal, Respondent did not have to offer Petitioner a
1996-1997 1 81 contract. klas Lim-ea/on Code_ 21.2H(,. Since Petitioner has no 1996-1997 contract, Respondent cannot
be required to pay Petitioner for the 1996-1997 school year unless it can be shown that the nonrenewal was not properly
done. Respondent is not liable for paying Petitioner a salary for the 1996-1997 school year just because the board decision
did not decide the nonrenewal issue until after the start of the next school year Additionally, Petitioner was employed by
another district for the 1996-1997 school year.
Additional Evidence
Petitioner contends that because Petitioner's principal no longer worked for the Respondent he was not present at the
hearing on the merits. Further, Petitioner notes that neither party to the local hearing could subpoena him. This case was
heard by the board, not by a certified hearing examiner. The Education Code does not give a board subpoena power.
Petitioner alleges that this is a procedural irregularity, and that based on -/c‘i ■ Lim CoA s additional
evidence can be allowed. However, the Agency's rules concerning allowing additional evidence to be taken 1*91 require
good cause to be shown. i 9 TAC § 157.1071. Petitioner's allegations do not amount to good cause for reopening evidence.
The taking of additional evidence was not permitted in this case.
Conduct of Hearing
Petitioner objects to the conduct of the hearing, alleging that the Board President asked Petitioner's counsel to stop
objecting and made inconsistent rulings on hearsay objections that favored Respondent. As to the request to stop objecting,
this was not proper. However, the exchange ended as follows:
MR. LUNGWITZ: Respectfully, Mr. Stone, I'll object to anything I think needs to be objected to tonight to protect
Ms. Anderson's rights.
MR. STONE. Okay. Okay.
1 Additionally, there are procedural safe guards in nonrenewal cases. A violation of these procedural standards can lead to the
requirement of offering the teacher a new contract.
MARK ROBINETT
Page 4 of 5
1997 TX Educ. Agency LEXIS 78, *9
(Tr. 81). Mr. Lungwitz continued to object. Mr. Stone did not convince him not to protect his client's interest.
As pointed out above, several incorrect rulings regarding hearsay were made. These rulings did favor Respondent, but the
Commissioner has the authority to correct these errors. The board President was under the impression that administrators
who were told things in the course and scope of their employment could re-tell what they had heard. This is incorrect. Legal
errors were made regarding rulings 1'11)1 on objections. Incorrect rulings that are corrected cannot lead to overturning a
board's decision.
Board Member's Statement
Petitioner objects to a board member's statement concerning race:
Mr. MONTGOMERY: And I absolutely, 110 percent, resent the fact that this was any kind of a racial thing at all.
It had absolutely nothing to do with the color of anyone's skin. And I just want to say I resent that. That is not
what this district is all about.
(Tr. 218). The statement itself shows that after hearing the evidence, the board member concluded, "It had absolutely
nothing to do with" race. Having found the allegation to be meritless, the board member stated he resented that the
allegation was made. But even if one board member had said he would not even consider a racial discrimination argument,
this would not change the result. The board vote was 6-0. A 5-1 vote would not change the outcome.
Conclusion
Petitioner received a fair hearing and Respondent's decision is not arbitrary and capricious or unlawful. Respondent's
decision to nonrenew Petitioner's contract is affirmed. Petitioner is not entitled to any compensation for the 1996-1997
school year from Respondent.
1: tit Conclusions Of Law
After due consideration of the record, matters officially noticed, and the foregoing Findings of Fact, in my capacity as
Commissioner of Education, I make the following Conclusions of Law:
1.The Commissioner of Education has jurisdiction of this appeal pursuant to k.,;s Eihrt raisin Cod( § 21.301 .
2. The notice of proposed nonrenewal complies with Pm's Elm alio', 01/41,. 2I.206.
3. Respondent made a number of erroneous evidentiary rulings:
Mr. Mooring's statements to Dr. Turner were improperly held not to constitute hearsay. (Tr. 23). The girl's
basketball coach's statements to Dr. Turner were improperly held not to constitute hearsay. (Tr. 32). Parents'
statements to Mr. Long were improperly held not to constitute hearsay. (Tr. 76). Pages 4 and 5 of Administration
Exhibit 6 were improperly held not to be hearsay. (Tr. 81, 83).
These rulings are reversed. Except for the erroneous rulings noted, Petitioner received a fair hearing.
4. Respondent's decision to nonrenew Petitioner's contract is supported by substantial evidence.
5. A violation that occurred prior to the current contract 1 :121 cannot be used to nonrenew the current contract unless the
district did not know of the violation at the time it occurred. While failings in a previous contract term cannot usually
support action against the current contract, the facts that a failing occurred, a teacher was reprimanded, and the teacher
committed the same act in the current term show a willfulness that makes the present serious violation more serious.
6. Petitioner has failed to show good cause for reopening evidence.
7. Petitioner is not entitled to pay for the portion of the 1996-1997 school year that passed before Respondent voted to
nonrenew her 1995-1996 contract.
MARK ROBINETT
Page 5 of 5
1997 TX Educ. Agency LEXIS 78, "12
8. There is no right to remediation. In some circumstances, a violation without remediation will not support nonrenewal,
but the same violation with a chance to remediate will support a nonrenewal.
9. Respondent's decision to nonrenew Petitioner's contract is not arbitrary and capricious, or unlawful.
10. The standard for determining most terminations, good cause, is not necessarily the standard for determining
nonrenewals. A board, however, could adopt good cause as its standard if it wished to. A board can also adopt a standard
lower than good cause I 131 for nonrenewals.
1 I. Properly objected to hearsay may not be considered when determining whether substantial evidence supports a
nonrenewal.
12. Petitioner's appeal should be denied.
ORDER
After due consideration of the record, matters officially noticed, and the foregoing Findings of Fact and Conclusions of
Law, in my capacity as Commissioner of Education, it is hereby
ORDERED that Petitioner's appeal be, and is hereby, DENIED.
SIGNED AND ISSUED this day of —, 1997.
MARK ROBINETT
TAB C
Board Hearing Procedures Policy
DFBB (LOCAL)
Los Fresnos CISD
031906
TERM CONTRACTS DFBB
NONRENEWAL (LOCAL)
not later than the 15th day after the date the employee received
the notice of proposed nonrenewal.
When a timely request for a hearing on a proposed nonrenewal is
received by the presiding officer, the Board shall notify the employ-
ee whether the hearing will be conducted by the Board [see HEAR-
ING BY THE BOARD, below] or an attorney designated by the
Board [see HEARING BY AN ATTORNEY DESIGNATED BY THE
BOARD, below].
In either case, the hearing shalt be held not later than the 15th day
after receipt of the request, unless the parties mutually agree to a
delay. The employee shall be given notice of the hearing date as
soon as It Is set.
HEARING BY THE Unless the employee requests that the hearing be open, the hear-
BOARD ing shall be conducted In closed meeting with only the members of
the Board, the employee, the Superintendent, their representa-
tives, and such witnesses as may be called in attendance. Wit-
nesses may be excluded from the hearing until called to present
evidence. The employee and the administration may choose a
representative. Notice, at least five days In adVance of the hearing,
shall be given by each party intending to be represented, including
the name of the representative. Failure to give such notice may
result In postponement al the hearing.
HEARING The conduct of the hearing shall be under the presiding officer's
PROCEDURES control and shall generally follow the steps listed below:
1. After consultation with the parties, the presiding officer shall
impose reasonable time limits for presentation of evidence
and closing arguments.
2. The hearing shall begin with the administration's presentation,
supported by such proof as it desires to offer.
3. The employee may cross-examine any witnesses for the ad-
ministration.
4. The employee may then present such testimonial or docu-
mentary proof, as desired, to offer in rebuttal or general sup-
port of the contention that the contract be renewed.
5. The administration may cross-examine any witnesses for the
employee and offer rebuttal to the testimony of the employ-
ee's witnesses.
6. Closing arguments may be made by each party.
A record of the hearing shall be made.
DATE ISSUED: 10/4/2012 4 of 5
UPDATE 95
DFBB(LOCAL)-X