# Los Fresnos Consolidated Independent School District and Michael L. Williams, Commissioner of Education v. Jorge Vazquez > Texas Court of Appeals, 3rd District (Austin) · March 19, 2015 URL: https://www.frixlaw.com/law-library/cases/4059492 ## Case - **Court:** Texas Court of Appeals, 3rd District (Austin) - **Decided:** March 19, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4059492 ## Opinion text 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