# State v. Erasmo Montalvo > Texas Court of Appeals, 3rd District (Austin) · April 28, 2015 URL: https://www.frixlaw.com/law-library/cases/4064896 ## Case - **Court:** Texas Court of Appeals, 3rd District (Austin) - **Decided:** April 28, 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/4064896 ## Opinion text ACCEPTED 03-13-00370-CV 5055113 THIRD COURT OF APPEALS AUSTIN, TEXAS 4/28/2015 8:22:12 AM JEFFREY D. KYLE CLERK CASE NO. 03-13-00370-CV FILED IN 3rd COURT OF APPEALS IN THE COURT OF APPEALS AUSTIN, TEXAS FOR THE THIRD DISTRICT OF TEXAS AT4/28/2015 AUSTIN 8:22:12 AM JEFFREY D. KYLE Clerk STATE BOARD FOR EDUCATOR CERTIFICATION and MICHAEL BERRY, THE ACTING CHIEF EXECUTIVE OFFICER OF THE STATE BOARD FOR EDUCATOR CERTIFICATION, IN HIS OFFICIAL CAPACITY ONLY, Appellant, v. ERASMO MONTALVO, Appellee. On Appeal from the 200th Judicial District Court of Travis County, Texas; Cause No. D-1-GN-12-002991; Before the Honorable Tim Sulak APPELLANT’S BRIEF KEN PAXTON ELLEN M. SAMETH Attorney General of Texas Assistant Attorney General State Bar No. 17555550 CHARLES E. ROY ADMINISTRATIVE LAW DIVISION First Assistant Attorney General OFFICE OF THE TEXAS ATTORNEY GENERAL P. O. Box 12548 JAMES E. DAVIS Austin, Texas 78711-2548 Deputy, Attorney General for Civil Telephone: (512) 936-1838 Litigation Facsimile: (512) 457-4608 E-mail: ellen.sameth@texasattorneygeneral.gov DAVID A. TALBOT, JR Chief, Administrative Law Division Attorney for Appellant, State Board for Educator Certification April 27, 2015 IDENTITIES OF PARTIES AND COUNSEL PARTIES TO THE TRIAL COURT’S ORDER: Plaintiff/Appellant: State Board for Educator Certification and Michael Berry, the Acting Chief Executive Officer of the State Board for Educator Certification, in his Official Capacity Only1 Defendant/Appellee: Erasmo Montalvo COUNSEL: For Appellant, State Board for Educator Certification: Ellen M. Sameth Assistant Attorney General State Bar No. 17555550 OFFICE OF THE TEXAS ATTORNEY GENERAL ADMINISTRATIVE LAW DIVISION P.O. Box 12548 Austin, TX 78711-2548 Telephone: (512) 936-1838 Facsimile: (512) 457-4608 Email: ellen.sameth@texasattorneygeneral.gov For Appellee, Erasmo Montalvo: Mark W. Robinett State Bar No. 17083600 BRIM, ARNETT, ROBINETT, CONNERS & MCCORMICK, P.C. 2525 Wallingwood Drive, Bldg. 14 Austin, Texas 78746 Telephone: (512) 328-0048, x110 Facsimile: (512) 328-4814 E-mail: mrobinett@brimarnett.com 1 Michael Berry was released as a Defendant by Agreed Order dated March 28, 2013. See App. C. ii TABLE OF CONTENTS IDENTITIES OF PARTIES AND COUNSEL ........................................................ ii TABLE OF CONTENTS ......................................................................................... iii INDEX OF AUTHORITIES......................................................................................v STATEMENT OF THE CASE .............................................................................. viii REQUEST FOR ORAL ARGUMENT .....................................................................x ISSUES PRESENTED............................................................................................. xi STATEMENT OF FACTS ..................................................................................... xii SUMMARY OF THE ARGUMENT ........................................................................2 ARGUMENT & AUTHORITIES .............................................................................3 ISSUE I. .....................................................................................................................4 The trial court erred in failing to find substantial evidence in the administrative record to support the Board’s Final Decision and Order. .........4 A. The Board has authority to issue sanctions without Code of Ethics violations. ........................................................................................4 B. The ALJ misinterpreted and misapplied the standard of “unworthy to instruct.”......................................................................................5 1. The Board requires conduct to support a sanction, it does not require Code of Ethics violations. .........................................5 ISSUE II. ....................................................................................................................8 The Board properly amended the Proposal for Decision in Compliance with the Administrative Procedure Act.....................................................................8 A. The Board properly amended the Proposal for Decision to comport with the findings of fact. ...............................................................8 1. The ALJ’s analysis supports finding poor judgment by Montalvo. ...............................................................................9 2. The Board’s Order is not arbitrary or capricious. ................10 3. The Board’s interpretation of its rules is to be given deference. .............................................................................12 4. The Board properly used the findings of fact to conclude that Montalvo is unworthy to instruct.........................................13 iii ISSUE III..................................................................................................................16 The Board’s standard of “unworthy to instruct” is not unconstitutionally vague ...............................................................................................................16 A. The meaning and history of “unworthy to instruct.”.....................16 1. The “unworthy to instruct” language has been a part of educator parlance since at least 1925...................................16 2. The “unworthy to instruct” standard, and analogous standards, have been upheld in case law. ............................18 B. “Unworthy to instruct” applies to Montalvo despite the lack of other disciplinary violations..........................................................22 ISSUE IV. ................................................................................................................24 The trial court abused its discretion in issuing a permanent injunction. .......24 CONCLUSION ........................................................................................................25 PRAYER ..................................................................................................................26 CERTIFICATE OF COMPLIANCE .......................................................................27 CERTIFICATE OF SERVICE ................................................................................28 iv INDEX OF AUTHORITIES Cases Bexar Metro. Water Dist. v. Tex. Comm'n on Envtl. Quality, 185 S.W.3d 546 (Tex. App.—Austin 2006, pet. denied) .............................. 12, 13 Brantley v. Tex. Alcoholic Beverage Comm’n., 1 S.W.3d 343 (Tex. App—Texarkana 1999, no pet.) ............................................3 Dodd v. Meno, 870 S.W.2d 4 (Tex. 1994) ....................................................................................12 Gerst v. Nixon, 411 S.W.2d 350 (Tex. 1966) ..................................................................................3 Gomez v. Tex. Educ. Agency, 354 S.W.3d 905 (Tex. App.–Austin 2011, pet. denied) .......................................11 In re Gamble, 71 S.W.3d 313 (Tex. 2002....................................................................................24 In re State Bd. for Educator Certification, No. 13-0537, 2014 Tex. LEXIS 1208; (Tex. December 19, 2014).... ix, 14, 15, 24 In re State Bd. of Educator Certification, 411 S.W.3d 576 (Tex. App.—Austin 2013, orig. proceeding) ..................... ix, viii Jordan v. State Bd. of Ins., 334 S.W. 2d 278 (Tex. 1960) ........................................................................ 20, 21 Key Western Life Ins. Co. v. State Board of Insurance, 350 S.W.2d 839 (1961).........................................................................................20 Marrs v. Matthews, 270 S.W. 586 (Tex. Civ. App.—Texarkana 1925, writ ref’d) ..................... passim Martinez v. Tex. State Bd. of Med. Exam’rs, 476 S.W.2d 400 (Tex. Civ. App.—San Antonio 1972, writ ref’d n.r.e.) .............20 v McHaney v. Tex. Comm'n on Envtl. Quality, 2015 Tex. App. LEXIS 1903 (Tex. App.— Austin Feb. 27, 2015, no pet.) (mem.op.)..........................................................................................................3, 24 R.R. Comm'n v. Torch Operating Co., 912 S.W.2d 790 (Tex. 1995) ..................................................................................4 Rodriguez v. Serv. Lloyds Ins. Co., 997 S.W.2d 248 (Tex. 1999) ......................................................................... 12, 13 State Bd. for Educator Certification v. Montalvo, No. 03-12-00723-CV, 2013 Tex. App. LEXIS 4389 (Tex. App.—Austin April 3, 2013, no pet.) (mem. op.) ................................................................................... viii Storey v. Cent. Hide & Rendering Co., 226 S.W.2d 615 (Tex. 1950) ................................................................................24 Tex. Alcoholic Beverage Comm’n. v. Sanchez, 96 S.W.3d 483 (Tex. App.—Austin 2002, no pet.)................................................3 Tex. Alcoholic Beverage Comm’n. v. Sierra, 784 S.W.2d 359 (Tex. 1990) ..................................................................................3 Tex. Health Facilities Comm'n v. Charter Med.–Dall., Inc., 665 S.W.2d 446 (Tex. 1984) ..................................................................................3 Tex. State Bd. of Dental Exam’rs v. Sizemore, 759 S.W.2d 114 (Tex. 1988) ..............................................................................3, 4 TGS NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432 (Tex. 2011) ................................................................................11 Triantaphyllis v. Gamble, 93 S.W.3d 398 (Tex. App.—Houston [14th Dist.] 2002, pet. denied) ................24 Vista Healthcare, Inc. v. Tex. Mut. Ins. Co., 324 S.W.3d 264 (Tex. App.—Austin 2010, pet. denied) .....................................20 Zimmer US, Inc., v. Combs, 368 S.W.3d 579 (Tex. App.—Austin 2012, no pet.)............................................13 vi Statutes Tex. Educ. Code § 13.046 ............................................................................................................... 18 § 13.046(a)(2) .......................................................................................................18 § 21.035 ................................................................................................................ xi § 21.041(7), (8); 19 .................................................................................................5 §§ 21.031(a), .041(b)(1)(7)(8) ..............................................................................23 §§ 21.031(a); 21.041(b)(1)(7).................................................................................4 § 21.041(7) (West 2012).........................................................................................3 Tex. Gov’t Code § 2001.058(e) ..........................................................................................................9 § 2001.058(e)(1) ...............................................................................................9, 26 § 2001.175(e) ..........................................................................................................4 Other Authorities 74th Leg., R.S. ch. 260, § 58(1), 2003 Tex. Gen. Laws 2498 ..............................18 SBEC Disciplinary Policy ............................................................................. 21, 25 Tex. Rev. Civ. Statutes 1911, art. 2884 [2814] ...................................................18 Tex. Rev. Civ. Statutes art. 2814 ............................................................................5 Rules 19 Tex. Admin. Code § 247 .......................................................................................................................7 § 249 .......................................................................................................................7 § 249.15 ................................................................................................................17 § 249.15(a), (b)(3) ..................................................................................................5 § 249.15(b)(2) ................................................................................... xi, 2, 5, 17, 22 § 249.3(45)............................................................................................................17 § 249.5 ..............................................................................................................4, 21 §§ 249.15(a)(4) .....................................................................................................17 §§ 249.3(59)............................................................................................................2 vii STATEMENT OF THE CASE Trial Court Disposition: The trial court issued a Judgment reversing the Board’s Final Decision and Order and issuing a permanent injunction against the Board. CR2 3, or see App. A. Trial Court: 200th District Court, Travis County, Texas, before the Honorable Tim Sulak. Course of Proceedings: The Board issued a Final Decision and Order on August 10, 2012. 1 AR 67, or see App. B. A timely motion for rehearing was filed and overruled by operation of law. On September 25, 2012, Montalvo filed an Original Petition for Temporary Restraining Order, Temporary Injunction and Permanent Injunction. The trial court issued both a temporary restraining order and temporary injunction. Following the filing of an interlocutory appeal, this Court reversed and dissolved the temporary injunction for lack of a trial setting in the order. State Bd. for Educator Certification v. Montalvo, No. 03-12- 00723-CV, 2013 Tex. App. LEXIS 4389 (Tex. App.—Austin April 3, 2013, no pet.) (mem. op.). On March 28, 2013, the trial court issued an Agreed Order Dismissing Michael Berry as a defendant. See App. C. On April 29, 2013, the trial court issued its Judgment reversing the Board’s Order and issuing 2 “CR” refers to the Clerk’s Record. The number following refers to the page number. “AR” refers to the Administrative Record as this matter involved administrative proceedings at the agency level. The Administrative Record consists of nine volumes. The Administrative Record will be cited as, e.g., 2 AR *, where “2" refers to the volume and “*” represents a page number within the given volume. “FOF” and “COL” refer to findings of fact and conclusions of law, respectively. viii a permanent injunction (effective until a ruling on this appeal) against the Board, prohibiting it from treating Montalvo’s educator certificate as revoked, revoking his certificate, or superseding the court’s Judgment following payment of a bond by Montalvo, should the Board appeal. The Board filed a Petition for Writ of Mandamus and a Motion for Temporary Relief, both of which the Third Court of Appeals denied. In re State Bd. of Educator Certification, 411 S.W.3d 576 (Tex. App.—Austin 2013, orig. proceeding). The instant appeal was abated while the Board sought relief in the Texas Supreme Court by filing a Petition for Writ of Mandamus. The Supreme Court denied relief. In re State Bd. for Educator Certification, No. 13-0537, 2014 Tex. LEXIS 1208, (Tex. Dec. 19, 2014). ix REQUEST FOR ORAL ARGUMENT Pursuant to Rule 75, Texas Rules of Appellate Procedure, Appellant, State Board for Educator Certification, requests oral argument in this case. Because the issues involved concern the Board’s interpretation and application of a principle central to its authority to regulate educators, the Board believes that oral argument will assist the Court in its analysis and resolution of this case. x ISSUES PRESENTED ISSUE I. The trial court erred in failing to find substantial evidence in the administrative record to support the Board’s Final Decision and Order. ISSUE II. The Board properly amended the Proposal for Decision in compliance with the Administrative Procedure Act. ISSUE III. The Board’s standard of “unworthy to instruct” is not unconstitutionally vague. ISSUE IV. The trial court abused its discretion in issuing a permanent injunction. xi STATEMENT OF FACTS Erasmo Montalvo, Appellee, holds an educator certificate. Montalvo was employed as a middle school teacher and served as a track and field coach at the high school in the Rio Grande City Consolidated Independent School District at the time the disciplinary case against him arose. 1 AR 62 (FOF #5), or see App. D. VS was a female senior high school student, under the age of 18, and an athlete on the track team, coached by Montalvo. 1 AR 62 (FOF #6). The Texas Education Agency (TEA), as the administrative arm of the Board, (see Tex. Educ. Code § 21.035,3) opened a disciplinary complaint against Montalvo, and filed its Original Petition with the State Office of Administrative Hearings on August 2, 2011. In its Original Petition, TEA alleged that Montalvo is unworthy to instruct or supervise the youth of this State (hereinafter “unworthy to instruct”), as well as four violations of the Educators’ Code of Ethics. 2 AR 75. Being “unworthy to instruct” is not a Code of Ethics violation but is a separate finding that the Board may make against an educator regardless of whether there are violations of the Code of Ethics. Upon finding that an educator is unworthy to instruct, the Board has authority to sanction the educator’s certificate, as it did in Montalvo’s case. See 1 AR 67; 19 Tex. Admin. Code § 249.15(b)(2), attached and incorporated herein as App. E. 3 All references to statutes and rules refer to those in effect at the time of the conduct made the basis of the underlying administrative proceeding. xii Montalvo’s specific conduct alleged by TEA includes: allowing VS, both alone and with other students, to use the Jacuzzi in the master bath of his home; asking VS lie on the bed in his master bedroom so he could massage her injured leg; engaging in sexual relations with VS on school property; exchanging over 400 phone calls with VS, including many late at night; and, engaging in inappropriate sexual contact with VS. 2 AR 73–75. In October of 2009, after hearing from VS what had occurred, her college counselor filed a complaint with the Starr County District Attorney’s Office, which indicted Montalvo. Following a trial for sexual assault, Montalvo was acquitted. I AR 64 (FOF #33), or see App. D. Between the time that the criminal complaint was filed and the time that Montalvo was found not guilty, he was on paid administrative leave with the school district. 1 AR 43. Following the verdict Montalvo was allowed to resume his duties with the school district. 1AR 43. The Administrative Law Judge found that Montalvo had not committed any of the alleged Code of Ethics violations, was not unworthy to instruct, and that the Board was not authorized to sanction him. 1 AR 64 (COL #6–8), or see App. D. The Board issued its Final Decision and Order on August 10, 2012, revoking Montalvo’s educator certificate. 1 AR 68, or see App. B. In doing so, the Board xiii adopted all thirty-three Findings of Fact in the PFD4 without change. Of the eight Conclusions of Law, the Board modified two, and added a ninth. Montalvo sought injunctive relief and judicial review of the Board’s Final Decision and Order. On September 25, 2012, the trial court issued an ex parte Temporary Restraining Order and, on October 9, 2012, following a hearing, a Temporary Injunction. CR 96, 113. The temporary injunction was overturned following an interlocutory appeal by the Board, because the injunction was lacking a date for a trial on the merits. After the trial on the merits, the trial court reversed the Board’s Final Decision and Order, and issued a permanent injunction barring the Board from treating Montalvo’s educator certificate as having been revoked. See App. A. The injunction is to remain in effect pending the appellate court’s ruling on the Board’s appeal. 4 Proposal for Decision issued by an Administrative Law Judge following a contested hearing before the State Office of Administrative Hearings (SOAH). xiv CASE NO. 03-13-00370-CV IN THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN STATE BOARD FOR EDUCATOR CERTIFICATION and MICHAEL BERRY, THE ACTING CHIEF EXECUTIVE OFFICER OF THE STATE BOARD FOR EDUCATOR CERTIFICATION, IN HIS OFFICIAL CAPACITY ONLY, Appellant, v. ERASMO MONTALVO, Appellee. On Appeal from the 200th Judicial District Court of Travis County, Texas; Cause No. D-1-GN-12-002991; Before the Honorable Tim Sulak APPELLANT’S BRIEF TO THE HONORABLE THIRD COURT OF APPEALS: The trial court erred in reversing Appellant State Board for Educator Certification’s (Board) Final Decision and Order, which revoked Appellee Erasmo Montalvo’s (Montalvo) educator certificate after finding that it is not supported by substantial evidence, and is arbitrary and capricious. Further, the trial court erred in issuing a permanent injunction without balancing the equities. Accordingly, this 1 Court should reverse the Judgment of the trial court, and affirm the Board’s Final Decision and Order. SUMMARY OF THE ARGUMENT There is substantial evidence in the record to support the Board’s Final Decision and Order, which found that Montalvo is unworthy to instruct. In its pleadings before SOAH, the Board alleged that Montalvo is not only unworthy to instruct, but also violated four standards contained in the Educators’ Code of Ethics, as well as other standards contained in the Board’s rules. 2 AR 75; see 19 Tex. Admin. Code chs. 247, 249. The ALJ did not find rule violations, or that Montalvo is unworthy to instruct. 1 AR 64 (COL #6–7), or see App. D. The Board adopted the ALJ’s findings of fact without changes. 1 AR 67. The Board further determined that, based solely on Montalvo’s conduct as found by the ALJ in FOF #11, 14, 18, 20, 22, 23, and 26, and Board standards, policies, and prior decisions, Montalvo is unworthy to instruct or supervise the youth of this state. 1 AR 68, or see App. A; 1 AR 62–63 or see App. D The Board has authority to find an educator unworthy to instruct based on conduct. 19 Tex. Admin. Code §§ 249.3(59), .15(b)(2), or see Apps. E, F. Furthermore, the “unworthy to instruct” standard is not unconstitutionally vague so as to deprive Montalvo of due process, and has passed muster with Texas 2 appellate courts. Marrs v. Matthews, 270 S.W. 586, 589 (Tex. Civ. App.— Texarkana 1925, writ ref’d). ARGUMENT & AUTHORITIES STANDARD OF REVIEW Review of disciplinary decisions of the Board proceeds under the APA and the standard of review is that of substantial evidence. Tex. Educ. Code § 21.041(7) (West 2012). Under that standard the question for the reviewing court is the reasonableness of the Board’s Order, not its correctness. Tex. Health Facilities Comm'n v. Charter Med.–Dall., Inc., 665 S.W.2d 446, 452–453 (Tex. 1984); Tex. Alcoholic Beverage Comm’n. v. Sierra, 784 S.W.2d 359, 360 (Tex. 1990); Brantley v. Tex. Alcoholic Beverage Comm’n. 1 S.W.3d 343, 347 (Tex. App— Texarkana 1999, no pet.); Tex. Alcoholic Beverage Comm’n. v. Sanchez, 96 S.W.3d 483, 489 (Tex. App.—Austin 2002, no pet.). The reviewing court cannot substitute its own judgment for that of the Board. Tex. State Bd. of Dental Exam’rs v. Sizemore, 759 S.W.2d 114, 116 (Tex. 1988). “The true test is not whether the agency reached the correct conclusion, but whether some reasonable basis exists in the record for the action taken by the agency.” Charter Med.-Dall., Inc., 665 S.W.2d at 452 (citing Gerst v. Nixon, 411 S.W.2d 350, 354 (Tex. 1966)); McHaney v. Tex. Comm'n on Envtl. Quality, 2015 Tex. App. LEXIS 1903 (Tex. App.— Austin Feb. 27, 2015, no pet.) (mem.op.) (“We must sustain the agency's action if 3 it is supported by substantial evidence, meaning that the evidence is such that reasonable minds could have reached the conclusion that the agency must have reached in order to justify its action.”). Further, the administrative order is given deference because of the agency’s expertise with the subject matter. R.R. Comm'n v. Torch Operating Co., 912 S.W.2d 790, 792 (Tex. 1995). In applying the substantial evidence standard, there is a presumption that the agency’s order is supported by substantial evidence in the record, and the burden is on the one challenging that order to show that it is not. Sizemore, 759 S.W.2d at 116. Review is restricted to the administrative record. Tex. Gov’t Code § 2001.175(e). ISSUE I. The trial court erred in failing to find substantial evidence in the administrative record to support the Board’s Final Decision and Order. A. The Board has authority to issue sanctions without Code of Ethics violations. One of the most basic functions of the Board is to regulate educator conduct and issue sanctions. Tex. Educ. Code §§ 21.031(a); 21.041(b)(1)(7); 19 Tex. Admin. Code § 249.5, or see App. I. The Board has promulgated a Code of Ethics, the violation of which may result in a sanction ranging from a non-inscribed (private) reprimand to permanent revocation of the individual’s educator 4 certificate. Tex. Educ. Code § 21.041(7), (8); 19 Tex. Admin. Code, Ch. 247, § 249.15(a), (b)(3). But, importantly, aside from the Code of Ethics, an educator is subject to being sanctioned if found “unworthy to instruct.” 19 Tex. Admin. Code § 249.15(b)(2), see App. E. As early as 1911, Tex. Rev. Civ. Statutes, art. 2882 [2814] made reference to the authority of the then-State Superintendent of Public Instruction to cancel a certificate “upon satisfactory evidence that the holder thereof “[ . . . ] is a person unworthy to instruct the youth of this State[.]” See App. G.; Marrs, 270 S.W. at 588. The Marrs case (discussed in more detail in section B, below) is squarely on point as it involves an appeal based on the vagueness and uncertainty of the term “unworthy,” as used in Tex. Rev. Civ. Statutes art. 2814, in effect at that time. See App. G, attached; Marrs, 270 S.W. 586, 588. By choosing to become part of any regulated profession, the license holder is consciously and voluntarily making a choice to abide by the rules of that profession. B. The ALJ misinterpreted and misapplied the standard of “unworthy to instruct.” 1. The Board requires conduct to support a sanction, it does not require Code of Ethics violations. The Board’s complaint alleged that Montalvo’s conduct indicates that he is a person unworthy to instruct, and that he violated various disciplinary rules of the 5 Board. 2 AR 75. The ALJ found that none of the alleged violations were substantiated. 1 AR 63–64 (FOF # 16, 21, 24, 25, 28–30, and COL #6–7), or see App. D. To the contrary, the Findings of Fact support the Board’s action of revoking Montalvo’s certificate because he is unworthy to instruct, including: FOF #11 District protocol required that injured students he sent to the trainer. (1 AR 62); FOF #14 VS did not visit the trainer about her injury. (1 AR 62); FOF #18: Following her injury, VS underwent stretching, rub downs, ice baths, and whirlpool use under Mr. Montalvo’s direction. (1 AR 63); FOF #20: Mr. Montalvo gave VS, and other students, rub downs. (1 AR 63); FOF #22: On two or three occasions, student athletes visited Mr. Montalvo’s home to use his Jacuzzi in the master bath. The athletes wore sports bras or bathing suit tops, and brief “bikers” shorts. (1 AR 63); FOF #23: On one occasion, VS went alone to Mr. Montalvo’s house to use the Jacuzzi. (1 AR 63); FOF #26: From February through June 2008, Mr. Montalvo engaged in approximately 480 phone calls with Student 1,5 with over 80 of the calls placed after 10:00 p.m. (1 AR 63). 5 Student 1 and VS are the same person. 6 Montalvo did not challenge these findings. It is clear that there is substantial evidence in the record for the Board to find that Montalvo is unworthy to instruct based on his conduct, even though the ALJ failed to find a basis upon which the Board could sanction Montalvo. There is testimony in the record attesting to the fact that allowing students to come to your home to use the Jacuzzi in the master bathroom is inappropriate and “unethical” (testimony of James Meguire, Head Athletic Trainer at Rio Grande City High School, 4 AR 275, TR 295:21–296:5), and that it is inappropriate (testimony of Rey Ramirez, Athletic Director at the Rio Grande ISD, 4 AR 261, TR 241:13–18). There is also testimony that engaging in over 400 telephone calls with a student in a four month period is a “little excessive” and inappropriate (testimony of Rey Ramirez, 4 AR 261 TR 241:23– 242:2). What the ALJ failed to grasp is that Montalvo’s conduct, as found by FOF #11, #14, #18, #20, #22–23, and #26, speaks for itself in terms of demonstrating a serious lack of judgment. These seven findings of fact indicate Montalvo’s conduct – he did not object to any of them. It is that lack of judgment, leading to Montalvo’s inappropriate and unacceptable behavior as an educator, which indicates his unworthiness to instruct; violations of the Code of Ethics are unnecessary. 7 ISSUE II. The Board properly amended the Proposal for Decision in Compliance with the Administrative Procedure Act. A. The Board properly amended the Proposal for Decision to comport with the findings of fact. The Board adopted, verbatim, all Findings of Fact and the first six of the eight Conclusions of Law, modifying two, and adding one. The two Conclusions of Law, as found by the ALJ, that are in issue are: 7. The foregoing Findings of Fact do not support a conclusion that Mr. Montalvo is a person unworthy to instruct or supervise the youth of this state. 8. SBEC is not authorized to take disciplinary action against Respondent’s Texas Educator Certificate. I AR 64. The Board modified those conclusions, and added a ninth one in its Final Decision and Order: 7. Based on Findings of Fact 11, 14, 18, 20, 22, 23 and 26, Respondent exceeded the bounds of the proper educator–student relationship and is a person unworthy to instruct or supervise the youth of this state. 8. SBEC is authorized to take disciplinary action against Respondent’s Texas Educator Certificate. 9. Respondent’s educator certificate should be sanctioned. 8 Based on Montalvo’s conduct as found in the Findings of Fact, there is nothing arbitrary or capricious about the Board’s Final Decision and Order. It is reasonable, given the Findings of Fact, for a state licensing board charged with regulating educator conduct in an effort to ensure the safety of schoolchildren, to find that Montalvo’s judgment and subsequent actions placed those children at risk. Further, the changes were made by the Board in compliance with Tex. Gov’t Code § 2001.058(e); they are supported by substantial evidence in the record (as noted by the references to the specific findings of fact relied upon); were made, as permitted under Tex. Gov’t Code section 2001.058(e)(1), because the ALJ misinterpreted and misapplied the Board’s rule regarding “unworthy to instruct;” and were explained in the Board’s Final Decision and Order, tying the findings to the Board’s philosophy and perspective. I AR 67–69, or see Appendix B. 1. The ALJ’s analysis supports finding poor judgment by Montalvo. In her analysis of the evidence, the ALJ noted the following: “A coach’s talking to a student by telephone 480 times over five months is certainly a matter to trigger concern.” I AR 59 (App. D); “Mr. Montalvo unquestionably exercised bad judgment in opening his master bath to students, and especially to one female student alone—even if Mr. Montalvo’s wife was at home at the time.” 1 AR 61 (App. D). 9 Thus, the ALJ found at least two of Montalvo’s decisions to be of questionable judgment and a cause for concern despite the conclusion in the PFD that the Board has no basis upon which to sanction his certificate. Based on the totality of Montalvo’s questionable actions, the Board, as the final arbiter of the sanction, properly determined that Montalvo is unworthy to instruct or supervise. The Marrs decision is instructive, because it speaks to educator “qualities.” See Marrs, 270 S.W. at 588. In fact, what the Marrs Court opines is that there are “many characteristics which may and should be considered in passing upon the issue of unworthiness in a teacher” and that they are too many and varied to enumerate. Id. at 588. The judgment of an educator is integral to that educator’s worthiness, or unworthiness, to instruct or supervise the youth of this state. 2. The Board’s Order is not arbitrary or capricious. As shown by both the Findings of Fact and the concerns found by the ALJ in her analysis of Montalvo’s conduct, there is clearly a basis for reasonable minds to come to the same conclusion that the Board came to, that is, to find that Montalvo is unworthy to instruct. The Board, as was the ALJ, is concerned about Montalvo’s judgment and behavior but, unlike the ALJ, the Board also correctly interpreted and applied the Findings of Fact to find that Montalvo is unworthy to instruct. 10 Reiterating the standard involved in a substantial evidence appeal, the question is not the correctness of the agency’s order, but its reasonableness. To be “arbitrary and capricious,” there must be a lack of guiding principles: When there is vagueness, ambiguity, or room for policy determinations in a statute or regulation, we generally defer to the agency's interpretation unless it is “plainly erroneous or inconsistent with the language of the statute, regulation, or rule.” TGS NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 438 (Tex. 2011). But this deference to the Board's interpretation is not conclusive or unlimited—we defer only to the extent that the Board's interpretation is reasonable. Gomez v. Tex. Educ. Agency, 354 S.W.3d 905, 912 (Tex. App.–Austin 2011, pet. denied). The Board’s “unworthy to instruct” determination is rationally related to Montalvo’s conduct; even the ALJ expressed concern about that conduct in her analysis of the evidence. It is reasonable for the Board to be concerned about Montalvo allowing students to use the Jacuzzi in his master bath, including on one occasion VS, a female under the age of 18, alone. It is equally reasonable for the Board to be concerned about hundreds of phone calls having taken place during a four–month period between VS and Montalvo. Those facts are just two of the many taken into account when the Board found Montalvo to be unworthy to instruct. Moreover, Montalvo did not appeal any of the findings of fact in his suit for judicial review. Montalvo’s conduct goes beyond the fact that he did not 11 violate the Code of Ethics; what matters is that the inappropriate conduct itself occurred. 3. The Board’s interpretation of its rules is to be given deference. The “unworthy to instruct” standard is broader than Code of Ethics or other standards. As a result, whether or not Montalvo violated the Board’s rules is not dispositive of whether or not he is “unworthy to instruct.” The ALJ’s conclusion that the Board cannot sanction Montalvo’s certificate is an incorrect interpretation of the Board’s rules, philosophy, and Disciplinary Policy. The Board has expertise and a central role in protecting the welfare of schoolchildren and educators. Because of that, Board’s conclusion finding Montalvo lacking in the judgment necessary to be a role model for students and to protect them, must be given deference. The Board’s interpretation of its statutes and rules is to be given “serious consideration, as long as the construction is reasonable and does not contradict the plain language of the statute.” Dodd v. Meno, 870 S.W.2d 4, 7 (Tex. 1994); Bexar Metro. Water Dist. v. Tex. Comm'n on Envtl. Quality, 185 S.W.3d 546, 550 (Tex. App.—Austin 2006, pet. denied) (“We give great weight to the agency's interpretation of its own rules and regulations, although such interpretation is not binding on this Court.”). Administrative rules are ordinarily construed in the same manner as statutes. Rodriguez v. Serv. Lloyds Ins. Co., 997 S.W.2d 248, 254 (Tex. 12 1999). “Unless a rule is ambiguous, we follow the rule's clear language; when there is vagueness, ambiguity, or room for policy determinations in a rule, we defer to the agency's interpretation unless it is plainly inconsistent with the language of the rule.” (Emphasis added). Zimmer US, Inc., v. Combs, 368 S.W.3d 579, 583 (Tex. App.—Austin 2012, no pet.). Further, agencies “must be afforded sufficient flexibility to determine and carry out [their] clear legislative mandate.” Bexar Metro., 185 S.W. 3d at 551. There is nothing inconsistent or unreasonable about the Board’s interpretation of the “unworthy to instruct” language. To force the Board to wait for a proven injury to a student is asking it to abandon its duty to protect schoolchildren. Because Montalvo’s judgment and behaviors as an educator are questionable, the Board’s determination that Montalvo is unworthy to instruct should be accorded deference and upheld upon the evidence contained in the record. The fact that the ALJ concluded that no ethical standards were violated and that Montalvo is not unworthy to instruct is irrelevant to the Board’s determination, based on the facts recited in the PFD, that Montalvo is unworthy to instruct. 4. The Board properly used the findings of fact to conclude that Montalvo is unworthy to instruct. It is clear from the discussion of the evidence in the PFD that the ALJ analyzed each piece of evidence in terms of whether or not it demonstrated a 13 violation of a particular rule or standard, and if it indicated that Montalvo is unworthy to instruct. But from the Board’s perspective, unworthiness to instruct is not necessarily based on individual findings indicating poor judgment or ethical violations but, rather, on the totality of findings. The fact that the ALJ found at least two categories of behavior by Montalvo (excessive phone calls, and allowing students to use the Jacuzzi in his master bath at home) to be questionable but not indicative of Montalvo’s being unworthy to instruct, is not the end of the analysis. In her concurring opinion in In re State Bd. for Educator Certification, No. 13-0537, 2014 Tex. LEXIS 1208 (Tex. December 19, 2014), Justice Guzman wrote: I also write separately today because I believe the record before us fails to affirmatively indicate that the trial court considered the potentially significant harm to schoolchildren before effectively reinstating Erasmo Montalvo's educator certificate pending the outcome of the appeal. 2014 Tex. LEXIS 1208 at *20. Justice Guzman further opined: But of at least equal import is the interest of schoolchildren in not being exposed to the harm of interaction with a teacher who fails to understand the proper bounds of the student-teacher relationship. The record before us reflects the trial court gave only cursory (if any) consideration to the safety and welfare of Texas students, declaring only that “[t]he competing equities favor granting the injunction.” But evidence undisputedly indicates that Montalvo, a high school track and field coach and an elementary school physical education coach, allowed a teenage female student—wearing only a 14 sports bra and biker shorts—to use the Jacuzzi in the master bathroom of his home while no one else was present, called that female student over 480 times over a four-month period (with over 80 calls occurring after 10:00 p.m.), gave several female athletes “rubdowns” and ice baths, and failed to follow district protocol to send an injured athlete to the trainer. The State Board for Educator Certification determined these actions exceeded the bounds of the proper educator-student relationship and violated the trusted position of authority afforded to Texas school teachers. Allowing Montalvo to continue teaching after willingly exceeding the bounds of the proper student-teacher relationship could substantially harm the safety and welfare of Texas schoolchildren. Id. at *23–24 (emphasis added). While Justice Guzman was discussing the issuance by the trial court of its injunction against the Board while the case is on appeal, her observations clearly relate equally as well to the merits of this case and go to the heart of the “unworthy to instruct” issue. The Board has experience, expertise, and a thorough understanding of what it means to find an educator to be unworthy to instruct. It is the Board’s interpretation of the phrase, “unworthy to instruct,” which dictates whether or not the pieces of evidence, as found by the ALJ, support such a finding. In this case, there are no specific Code of Ethics or other rule violations. And, while individual facts may not support a finding that Montalvo is unworthy to instruct, the Board has explained that it is all of those findings together that indicate to it, that Montalvo is unworthy to instruct. I AR 68–69, or see App. B. The Board’s Final 15 Decision and Order cites to seven findings of fact – the findings that speak to Montalvo’s conduct and that went unchallenged in the trial court – found by the ALJ that support its conclusion that Montalvo is unworthy to instruct. In summary, the Board found that, based on the totality of circumstances, Montalvo exceeded the boundaries of an appropriate educator-student relationship, and is unworthy to instruct. ISSUE III. The Board’s standard of “unworthy to instruct” is not unconstitutionally vague. A. The meaning and history of “unworthy to instruct.” 1. The “unworthy to instruct” language has been a part of educator parlance since at least 1925. The standard of “unworthy to instruct” is not unconstitutionally vague or otherwise a violation of Montalvo’s due process rights. The standard has a long history with educators, in both law and case law. In fact, other professions have analogous standards which have also been upheld. The “unworthy to instruct” language appears in several places in the Board’s rules. It is first referenced in § 249.3, the “Definitions” section relating to disciplinary proceedings: 16 Unworthy to instruct or to supervise the youth of this state—the determination that a person is unfit to hold a certificate under the TEC, Chapter 21, Subchapter B,6 or to be allowed on a school campus under the auspices of an educator preparation program. 19 Tex. Admin. Code § 249.3(45), or see App. F. The next reference is contained in § 249.15(b)(2): § 249.15. Disciplinary Action by State Board for Educator Certification (a) Pursuant to this chapter, the State Board for Educator Certification (SBEC) may take any of the following actions: ... (4) revoke or cancel, which includes accepting the surrender of, a certificate without opportunity for reapplication for a set term or permanently; or ... (b) The SBEC may take any of the actions listed in subsection (a) of this section based on satisfactory evidence that: ... (2) the person is unworthy to instruct or to supervise the youth of this state; 19 Tex. Admin. Code §§ 249.15(a)(4), (b)(2) (emphasis added), or see App. E. Thus, § 249.15 expressly authorizes the Board to revoke an educator certificate based on being found “unworthy to instruct.” 6 Chapter 21, Subchapter B of the Texas Education Code is the chapter governing the certification of educators. 17 Section 13.046 of the Texas Education Code (now repealed), in noting when an educator certificate is subject to cancellation, referenced “unworthy to instruct”: (a) Any teacher's certificate issued under the provisions of this code or under any previous statute relating to the certification of teachers may be suspended or cancelled by the state commissioner of education under any one or more of the following circumstances: ... (2) on satisfactory evidence that the holder is a person unworthy to instruct the youth of this state; or (emphasis added). Tex. Educ. Code § 13.046(a)(2) (Repealed by Acts of May 30, 1995, 74th Leg., R.S. ch. 260, § 58(1), 2003 Tex. Gen. Laws 2498. When the Board came into existence, in 1995, various statutes were repealed, including § 13.046, and others promulgated. Even prior to § 13.046, reference can be found to the authority of the then-State Superintendent of Public Instruction to cancel a certificate “upon satisfactory evidence that the holder thereof “[ . . . ] is a person unworthy to instruct the youth of this State. Tex. Rev. Civ. Statutes 1911, art. 2884 [2814]. See App. G. 2. The “unworthy to instruct,” and analogous standards, have been upheld in case law. Case law in Texas referencing “unworthy to instruct” also goes back at least as far as 1925: 18 The contention is that the term “unworthy,” as used in article 2814, is too vague and uncertain to legally define a disqualification to further hold a teacher's certificate. Marrs, 270 S.W. at 588. Thus, in addressing Montalvo’s assertion that the standard of “unworthy to instruct” is vague and ambiguous, the Marrs case is directly on point. The Court opined: The word “unworthy,” as used in common parlance, has a well-defined signification. As here used, it means the lack of “worth”; the absence of those moral and mental qualities which are required to enable one to render the service essential to the accomplishment of the object which the law has in view. It may also include those positive traits of character which, notwithstanding excellent educational attainments, unfit one to impart proper instruction to the young. To call one “unworthy” is to impute moral delinquency to a degree of unfitness for the work in hand. There are many characteristics which may and should be considered in passing upon the issue of unworthiness in a teacher in the public schools. Different minds might reach different conclusions as to what qualities of character should render one unworthy to hold a certificate to teach. But there can be no difference of opinion about the fact that an unworthy person should not be permitted to teach in the public schools. What qualities, or lack of qualities, should render one unworthy would be difficult for legislative enumeration. They are so numerous, and their combinations so varied in different individuals, that a statute which undertakes to be more specific would either be incomplete, or so inflexible as to defeat the ends sought. In the very nature of the subject there must be lodged somewhere a personal discretion for determining who are the “unworthy.” 19 (Emphasis added). Id. Aside from its detailed explanation of “unworthy to instruct,” this passage in Marrs makes it clear that it is impossible to legislate all circumstances in which one may be found unworthy to instruct. The Marrs case has not been overruled. Other cases upholding language that is analogous to “unworthy to instruct” in that the language is not susceptible to exact definition and has been attacked as too vague and ambiguous to be upheld, include: Jordan v. State Bd. of Ins., 334 S.W. 2d 278, 280 (Tex. 1960) (“Further the idea embodied within the phrase [unworthy of the public confidence] is reasonably clear and hence acceptable as a standard of measurement. And in this lies the true constitutional test.”); Martinez v. Tex. State Bd. of Med. Exam’rs, 476 S.W.2d 400, 404 (Tex. Civ. App.—San Antonio 1972, writ ref’d n.r.e.) (“The idea embodied within the phrase ‘grossly unprofessional or dishonorable conduct of a character which in the opinion of the Board is likely to deceive or defraud the public’ is reasonably clear.”); Key Western Life Ins. Co. v. State Board of Ins., 350 S.W.2d 839 (1961), (authorizing disapproval of a policy form if it "encourages misrepresentation"); Vista Healthcare, Inc. v. Tex. Mut. Ins. Co., 324 S.W.3d 264, 274 (Tex. App.—Austin 2010, pet. denied) (“ . . . no requirement here that every detail of what constitutes ‘fair and reasonable’ . . . be set out by rule to provide Vista with fair notice of the standards by which individual fee disputes will be adjudicated.”). And, as in 20 Marrs, these opinions support the proposition that the fact situations to which civil statutes might apply are simply too numerous to legislate. In Jordan v. State Bd. of Ins., 334 S.W. 2d 278, 281 (Tex. 1960), the Texas Supreme Court includes in its opinion a list (citing to K. Davis, Administrative Law Treatise, § 2.03 (1st ed. 1958)) of various “general” phrases – i.e., the same genre as “unworthy to instruct” – which have passed muster with the United States Supreme Court; [T]he standards the Supreme Court [of the United States] has held adequate include ‘just and reasonable,’ ‘public interest,’ ‘unreasonable obstruction’ to navigation, ‘reciprocally unequal and unreasonable,’ ‘public convenience, interest, or necessity,’ ‘tea of inferior quality,’ ‘unfair methods of competition,’ ‘reasonable variations,’ ‘unduly or unnecessarily complicate the structure’ of a holding company system or ‘unfairly or inequitably distribute voting power among security holders.’” The Jordan case also specifically cites to Marrs. See Jordan, 334 S.W. 2d at 281. As evidence of just how central the concept of “unworthy to instruct” and the Marrs case is to the Board and disciplinary actions, the Board cites to Marrs in its Disciplinary Policy. 7 AR 688–690, or see App. J. Portions of the Board’s Disciplinary Policy are now stated in rule (although this was not the case until December 23, 2013), including its explanation of “unworthy to instruct.” 19 Tex. Admin. Code 249.5. 21 B. “Unworthy to instruct” applies to Montalvo despite the lack of other disciplinary violations. The allegation that Montalvo is “unworthy to instruct or supervise the youth of this state” stands as a separate basis for sanctioning an educator certificate and does not rely on a violation of the Code of Ethics. 19 Tex. Admin. Code § 249.15(b)(2); I AR 64 (COL #5). The ALJ’s Findings of Fact, adopted verbatim by the Board in its Final Decision and Order, support a finding of “unworthy to instruct.” Thus, for example, while the ALJ did not find any romantic underpinnings in the 480 phone calls over a four month period between Montalvo and VS and therefore no violations of the Code of Ethics, the Board took exception to the fact that there were 480 calls, determining that such an excessive number of calls crossed the bounds of an appropriate educator-student relationship. I AR 67– 68. As another example, the fact that the ALJ failed to find that Montalvo had sexually abused or assaulted VS when she went alone to Montalvo’s house to use the Jacuzzi did not sway the Board, which, instead, took exception to the fact that Montalvo allowed VS come to his home alone to use the Jacuzzi in his master bathroom. 1 AR 67–68. The Board found that this conduct makes Montalvo unworthy to instruct by “crossing the bounds of an appropriate student-teacher relationship.” I AR 69, or see App. B There is no doubt that allowing VS, a female high school student, into his master bathroom to use the Jacuzzi, illustrates a lack of judgment on Montalvo’s 22 part. Additionally, the occurrence of 480 telephone calls during a four-month period, with over 80 of them taking place after 10:00 p.m., further illustrates Montalvo’s lack of judgment. Montalvo’s conduct, as found by the ALJ’s Findings of Fact, exceeds the bounds of a proper educator–student relationship. The Board relied on those findings illustrating his conduct to find Montalvo unworthy to instruct. Ultimately, whether or not improper conduct—beyond the ALJ’s Findings of Fact—took place is not the issue. Thus, it does not matter whether the content of the phone calls was romantic in nature. Stated another way, it is immaterial whether the content of the phone calls implicated a Code of Ethics violation for the Board to find that the conduct exceeded the bounds of an appropriate student- teacher relationship and thus at least implicates the standard of “unworthy to instruct.” Instead, the ultimate issue for the Board is the fact that Montalvo engaged in these behaviors. That conduct alone demonstrates how Montalvo fails to meet the expectations of the Board in protecting the welfare of students and educators. The legislature has given broad authority to the Board to carry out its functions. Tex. Educ. Code §§ 21.031(a), .041(b)(1)(7)(8). The Board determined that Montalvo’s judgment and behavior speaks louder than whether or not specific standards in the Code of Ethics were violated. Reasonable minds could certainly 23 reach the same conclusion as the Board concerning Montalvo’s judgment. “The substantial-evidence standard does not require ‘a large or considerable amount of evidence’—in fact, the evidence may even preponderate against the agency's finding—but requires only ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion of fact.’” McHaney, 2015 Tex. App. LEXIS 1903 at *11. ISSUE IV. The trial court abused its discretion in issuing a permanent injunction. The trial court improperly issued a permanent injunction, prohibiting the Board from treating Montalvo’s educator certificate as having been revoked. See App. A. In issuing an injunction, the trial court must look not only at the elements needed to support issuance, but it must also balance the equities. Triantaphyllis v. Gamble, 93 S.W.3d 398, 401–02 (Tex. App.—Houston [14th Dist.] 2002, pet. denied). Because an injunction is an equitable remedy, the equities on both sides must be taken into account prior to issuance. In re Gamble, 71 S.W.3d 313, 317 (Tex. 2002); Storey v. Cent. Hide & Rendering Co., 226 S.W.2d 615, 618-19 (Tex. 1950). A failure to do so is an abuse of discretion, as here. In re State Bd. for Educator Certification, 2014 Tex. LEXIS 1208 at *20; Triantaphyllis 93 S.W.3d at 402. 24 As noted above in Justice Guzman’s concurring opinion, the trial court failed to balance the equities prior to issuing its injunction and disallowing the Board from superseding its ruling on appeal. See App. H (Trial Court’s Findings of Fact and Conclusions of Law). Instead, the trial court looked only at the effect on Montalvo if it did not grant his request for relief, and failed to look at the risk to schoolchildren in allowing Montalvo to remain an educator pending any appeal by the Board. The trial court, in issuing an injunction against the Board without weighing the equities, has abused its discretion and allowed Montalvo to continue in his role as an educator, despite being found unworthy to instruct. As a result, the schoolchildren that the Board has a duty to protect, have been put at risk. CONCLUSION The Court should reverse the trial court’s Judgment, including the injunction, and affirm the Board’s Final Decision and Order revoking Monalvo’s educator certificate, for the following reasons: 1. The ALJ misinterpreted and misapplied the standard of “unworthy to instruct” as used in educator parlance; 2. There is substantial evidence in the record supporting the Board’s finding that Montalvo, due to his judgment and conduct, is unworthy to instruct; 3. No violations of the Educators’ Code of Ethics or other Board rules are necessary to support a finding of “unworthy to instruct;” 25 4. The Board’s changes to the ALJ’s Proposal for Decision comply with the requirements of the APA, § 2001.058(e)(1), because the changes were made based on legal reasons explained in its Final Decision and Order; 5. All changes to the Proposal for Decision are supported by substantial evidence; and 6. The issuance of a permanent injunction against the Board was an abuse of discretion. PRAYER Appellant, State Board for Educator Certification, respectfully requests that this Court affirm the Board’s Final Decision and Order in SOAH Docket No. 701– 11–8468.EC in all respects and deny all relief sought by Appellee, Erasmo Montalvo. Appellant prays for such other and further relief to which it may be justly entitled. Respectfully submitted, KEN PAXTON Attorney General of Texas CHARLES E. ROY First Assistant Attorney General JAMES E. DAVIS Deputy Attorney General for Civil Litigation DAVID A. TALBOT, JR. Chief, Administrative Law Division 26 /s/ Ellen M. Sameth ELLEN M. SAMETH Assistant Attorney General Texas State Bar No. 17555550 OFFICE OF THE TEXAS ATTORNEY GENERAL ADMINISTRATIVE LAW DIVISION P.O. Box 12548 Austin, Texas 78711-2548 Telephone: (512) 936-1838 Facsimile: (512) 457-4608 E-mail: ellen.sameth@texasattorneygeneral.gov ATTORNEYS FOR STATE BOARD FOR EDUCATOR CERTIFICATION CERTIFICATE OF COMPLIANCE I certify that this Appellant’s Brief submitted complies with Tex. R. App. P. 9 and the word count of this document is 5,796. The word processing software used to prepare this filing, and calculate the word count of the document, is Microsoft Word 2010. Date: April 27, 2015 /s/ Ellen M. Sameth Ellen M. Sameth Assistant Attorney General 27 CERTIFICATE OF SERVICE I hereby certify that on April 27, 2015, a true and correct copy of the foregoing document was served via the Court’s ECF system to all counsel of record: Mark W. Robinett Via: Electronic Service BRIM, ARNETT, ROBINETT, CONNERS & MCCORMICK, P.C. 2525 Wallingwood Drive, Bldg. 14 Austin, Texas 78746 mrobinett@brimarnett.com /s/ Ellen M. Sameth Ellen M. Sameth Assistant Attorney General 28 CASE NO. 03- 1 3-00370-CV IN THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN STATE BOARD FOR EDUCATOR CERTIFICATION ANd MICHAEL BERRY, TIIE ACTING CHIEF EXECUTIVE OFFICER OF THE STATE BOARD FOR EDUCATOR CERTIFICATION, IN HIS OFFICIAL CAPACITY ONLY, Appellant, V ERASMO MONTALVO, Appellee. On Appeal from the 200th Judicial District Court of Travis County, Texas; Cause No. D-1-GN-12-00299I; Before the Honorable Tim Sulak APPELLANTS' BRIEF APPENDIX A 2 har ó9 (J ,! CAUSE NO. D-I-GN-12-002991 +J l''' (J LT, : ü> ERASMO MONTALVO, $ IN THE DIS'|RICT COURT OF rlÕ() :{ ,u Plaintffi $ -í ¿:¡ É --Õ ^4 $ f) t-' v $ TRAVIS COUNTY, TEXAS :¡ ir_ 4 $ THE STATE BOARD FOR $ EDUCATO R CERTIFICATION, $ Defendant, $ 2OOTH JUDICIAL DISTRICT JUDGMENT On the 2l't day of March, 2013, the Court heard the merits of the above- entitled and numbered cause on the claim ofjudicial review brought by Plaintiff, Erasmo Montalvo, complaining of the administrative order of Defendant, State Boarcl for Educator Certification, which was subject to substantial evidence review on the adrninistrative record. Plaintiffs Original Petition included a request for injunctive relief, heard on April 25,2013, Plaintiff Erasmo Montalvo appeared in person and by his attorneys of record, Mark Robinett and Corey Tanner, on both dates; Defendant State Board for Educator Certifrcation appeared in person and by its attorney of record, Ellen Sameth, Assistant Attorney General, on both dates. After considering atl briefs, arguments, the adlninistrative record and applicable rules and law, the Court finds that Defendant's Final Decision and Order in SOAH Docket No.70l-ll-8468.8C is not supported by substantial evidence and is arbitrary and capricious, IT IS THEREFORE ORDERED that Defendant's Final Decision and Order is REVERSED, Page I ofZ The Court FURTHER FINDS, after considering the evidence adduced and argument of counsel during the April 25,2013, hearing for injunctive relief, that Plaintiffi Erasmo Montalvo, is entitled to a permanent injtrnction prohibiting the State Board for Educator from treating as revoked or revoking the educator certificate of Plaintiff based on the facts and allegations made the basis of Defendant's complaint in SOAH Docket No. 701-ll-8468.EC, which injunction is to.remain in effect until, in the case of any appeal taken by Defendant, a ruling from the appellate cotlrt issues' IT IS FURTHER ORDERED, pursuant to Rule 2a.2@)(3) of the Texas Rules of Appellate Procedure, that any appeal taken of this Judgment by Defendant State Board for Educator Certifrcation will not supersede this Judgment during the pendency of such *¡ oQo.qoto secure appeal. Plaintiff is ORDERED to post security in the amount of the Defendant against any loss or damage caused by the relief granted Plaintiff if an appellate court determines, on final disposition, that relief was improper. IT IS FURTHER ORDERED that all taxable costs of court be assessed against the party who incurred them. IT IS FURTHER ORDERED that alt remedies not specifically granted are herein denied. signed on the 21Ë, * APÉtc 20t3. ETIMS Pagc2 ol2 CASE NO. 03-1 3-00370-CV IN THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN STATE BOARD FOR EDUCATOR CERTIFICATION ANd MICHAEL BERRY, THE ACTING CHIEF EXECUTIVE OFFICER OF THE STATE BOARD FOR EDUCATOR CERTIFICATION, IN HIS OFFICIAL CAPAÇITY ONLY, Appellant, V ERASMO MONTALVO, Appellee. On Appeal from the 200th Judicial District Court of Travis County, Texas; Cause No. D-1-GN-12-00299I; Before the Honorable Tim sulak APPELLANTS' BRIEF APPENDIX B soAH DOCKET NO. XXX-XX-XXXX.8C TEXAS EDUCÂTION AGENCY, $ BEFORE THE STATE OF'FICE EDUC^'IOR CERTIFICI\TION AND $ STANDARDS DIVISTON, $ Petitioner $ $ V, $ OF $ ERASMO MONTALVO,.IR., $ Respondent s ADMINISTRATIVE TIEARJNGS FINAL DECISION A¡{D ORDER Came on for consideration on the l0rl'clay of Augusl2012 the above-styled matter. After proper notice was given, the above-styled case was heard by an Administrative Law Judge who made ancl hled a Proposal for Decision containing Findings of Fact and Conclusions of Law. This Proposal for Decision was properly served on all parties, who were givcn an opport¡nity to file exceptions and rcplies as part ol the administrative record. The State Board for Educator Certification, ("Board" or "SBEC"), after review and consideration of the Proposal for l)ecision, as well as the exceptions and replies fìled, if any, adopts the Findings of Fact Nos. I through 33 and Conclusions of Law Nos. I through 6 in the Proposal tbr Decision, as if fully set out herein. The Board modifies and adopts Conclusions of Law Nos. 7 and 8, as set out below, and aclds Conclusion of Law 9, All proposed Findings of Fact and Conclusions of Lnw not specifically adopted herein are hereby denied. Respondent, a rnale coach, engaged in conduct which exceeds the bottnds of the ¡lroper educator- stulent relarionship during the spring semester of 200tì by iailing to tbllow district protocol and s,.-nd V.S. ro the trainer for her ongoing iniury, (Findings ot'Fact ll and la); by rttbbing dowrr ancl/gr nrassaging V.S., (Finrlings of Fact l8 and 20); by treating V.S.'s initrry himself rvith stretching, ice baths, antl rvhirlpools, (F-inding of Fact l8); by allolving V.S, to use thc Jttcttzz'iin thc r:rastcr bedroom ot'his homc 'uvhile no one else was present, (Fírrdings of ["act 22 and 23); and by cngaging in approximately 480 phone calls rvith V.S, during a .l nronth pcriocl, rvith over 80 trf those crrlls being placed atler l0:00 p.nr. lFinding of l?act 26)' MONTALVO V. SBEC 0067 Conclusion of Law 7l Basecl on Findings of Fttct ll, 14, 18,20,22,23 and26, Respondent exceeded the bounds of the proper educator-student relationship and is a person unworthy to ínstruct or supervise the youth of this state. Conclusion of Law 8: SBEC is authorized to take disciplinary action against Respondent's Texas Educator Certificate' Conclusion of Law 9: Respondent's educator certificate should be sanctioned' 'l'hese additions and modifications are permissible pursuant to Texas Government Code g 2001.058(e) and are necessary because the Administrative Law Judge failcd to appropriately 'fexReg 5421'22, Marrs v' lufulthews,270 interpret.and apply SBEC policies and rules. See 34 S.W. 586 (1925), l9 Tex. Admin. Code 5 249,15(b)(2)' protecting the safety and welfare of Texas schoolchildren and school personnel is a primary purpose of the SBEC. A certified educator holds a unique position of public trust, and therefore, the contluct of an edttcator must be held to the highest standard' The nroral titness of an educator must be deternlined from an examination of all relevant conduct and is not limited to conduct that constitutes a criminal violation or results in a criminal 'Ihe rcsponsibility ancl discretion to make this weighty detern'rination is vested in the conviction. SBEC. ÌVIr. Ivfonralvo held a rrusted position ol authoríty that provided him a ttnic¡ue opportttnity to expl.it vulnerable tèmale athleres. Eclucator.s nrttst clearly understand the hortndaries of the any violatiott educator-stt¡dent relationship that they are trustcd not to cross. The SBEC considers tif that trust to bc cQnduct that may result in permanent revocalion olln educator's certific¿ìte' i\llorving a f'emale stutlerrt tt: use the iactrz,'t-i in lhe lnaster batltroo¡n ol'his h0llre rvlrile trtl trlre ()\'ur (ì lt¡ur tnonlh pcriod. itnd else is l)resL.nt. cirlling a strrrlcn( ovcr {81) tinres in the late evcnirrg MONTALVO V, SBEC 0068 a male corch giv¡ng a t'emale athlete rubdowns and ice baths, tàiling to follorv district protocol to send an injured athlete to the trainer is conduct that the SBEC consiclers to cross the bounds of lhe appropriate student-teacher relationship and is sa¡rctionable conduct. Respondent's uctions crossed the bounds of an appropriate cducator'student relationship anrl 'Iexas educator celificate, show that he is not presently worthy to hold a NOW, THEREFORE, lT IS ORDERED by the Board pursuant to the Texas Education Code Sections Zl.O3l and 2t.041(b)(7) and the Board's rules promulgated in accordance with these statutes thar Respondent ERASMO MONTALVO, JR.'S Texas Educator Certifrcate Ntrmber XXX-XX-66-13 is herebY ?o,. '^rrL¡¡ d On behalf of the State Board l'or Educator Certification: lo- L. CAIN, Ed. DATE Note: Pttrstrctnt to Board order No. 990705DP' issued under I9 Tex. ldmin' code $ 249'7(u), the Boardþr Edtrcalor Certificttlion may sn order on hehuUof the presiding oflìcer of Sfate 'sign møking thetìnul decision on q case' lhe majority of members MONTALVO V. SBEC 0069 CASE NO. 03- 1 3-00370-CV IN THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN STATE BOARD FOR EDUCATOR CERTIFICATION ANd MICHAEL BERRY, TIü ACTING CHIEF EXECUTIVE OFFICER OF TI{E STATE BOARD FOR EDUCATOR CERTIFICATION, IN HIS OFFICIAL CAPACITY ONLY, Appellant, v ERASMO MONTALVO, Appellee. On Appeal from the 200th Judicial District Court of Travis County, Texas; Cause No. D-1-GN-12-002991; Before the Honorable Tim Sulak APPELLANTS' BRIEF APPENDIX C O- *l v En Ã$ _9 o ciã el- :È.1 ño ií CAUSE NO. D-1-cN-12.002991 () ''r= >\ -rl ñ¡l = UD LJo = æl \,¡ =NÐ ERASMO MONTALVO, IN TTIE DISTRICT COURT o¡O I :) Plaintiff $ Ë,s æ, I U' $ :Et úõo $ EF 0)F ó v TRAVIS COIJNTY, TEXAS I $ u i E $ THE STATE BOARD FOR $ EDUCATOR CERTIFICATION AND $ MCHAEL BERRY, THE ACTING $ CHIEF OF THE STATE BOARD FOR $ EDUCATOR CERTIFICATION, IN $ HIS OFFICIAL CAPAC]TY ONLY $ 2OOTH ruDICIAL DISTRICT AGREEI' ORDER DISMISSING MICHAEL BERRY on this &uv of HÀ,4CH ,zot3, the Court considered the Agreed Order Dismissing Míohael Berry as a Defendant in the instant cause, Afrer reviewing the pleadings and this Agreed Order, jointly fíled by counsel for Plaintiff and Defendants, thc Court is of the opinion that the Agreed Order Dísmissing Michael Berry should be granted and that Michael Berry, The Aoting Chief of the State Board for Educator Certification, In his Off¡cial Capacity Only, should be dismissed from this lawsuit. The Court finds that Michacl Berry ís not the Chief of the State Board for Educator Certification, and that the only proper defendant to this lawsuit is the State Board for Educator Certi ficati on, IT IS THEREFORE ORDERED that Michael Berry, The Acting Chief of the State Board for Educator Certification, In his Official Capacity Only ís hereby DISMISSED as a Defendant with prejudice to re-filing same. C/N D-l -CN- l2-002991 ; Montalvo v SBEC and Mtchael Berry Page I o/2 SIGNED on the &uro¡ M AÈc Èl- .20-É Tì SU '.1. AGREED AS TO FORM AND SUBSTANCE: EllenM. Sameth Mark W. Robinett State Bar No. 17555550 state Bæ No. 17083600 OTrICE OF THE AI.TORNEY GENERAL BRIMM, ARNETT, ROBINETT AovIuISrR¡TIVE LAW DIvISION CONNERS & MCCORMICK, P.C. P.O. Box 12548 2525 Wallingwood Drive, Bldg. 14 Austin, Texas 78'l ll'2548 Austin, Texas 78746 Telephone; (5 I 2) 936- t 83 I Telephone: (5 12) 328'0048 Faosimiler (512) 320'0167 Facsimile: (5 I 2) 328'48 14 E-mail: Ellen.Sameth@.oag.statc,fx.us E-mail: mrobinett@brimarnett,com ATTORNEY NOR DETENDANTS ATIOR¡IEV FOR PLAINTIFP C/N D- I -GN- t 2-00299 I ; Montalvo v SBEC ond Mlchael Berry Poge 2 ol2 CASE NO. 03- 1 3-00370-CV IN THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS AT AUSTTN STATE BOARD FOR EDUCATOR CERTIFICATION ANd MICHAEL BERRY, TIIE ACTING CHIEF EXECUTIVE OFFICER OF THE STATE BOARD FOR EDUCATOR CERTIFICATION, IN HIS OFFICIAL CAPACITY ONLY, Appellant, V ERASMO MONTALVO, Appellee. On Appeal from the 200th Judicial District Court of Travis County, Texas; Cause - No. D-l-GN- 12-002991; Before the Honorable Tim sulak APPELLANTS' BRIEF APPENDIX D SOAH DOCKET NO. 701.1 I-8468.8C TEXÄS EDUCATION AGENCY $ BEFORE THE STATD OFFICD DDUCATOR CERTIFICATION AND $ SÎANDARDS DIVISION, $ ' Petitioner $ $ or v $ $ ERASMO MONTALVO, JR., $ Respondettt $ ADMINISTRATIVE HEARINGS TABI,E OF CONTENTS I. JURISDICTION, NOTICE, AND PROCEDLJRAL IIISTORI þiiârìü¡r¡)rïr¡r,¡f¡i,?,qr'¡r:,.¡.,'?'r, I A. Undisputed Background Fac1s,..,....... ,..,.,,,,.,....2 B. The AIlegAtiOnSír)t¡Ìii.ì¡ri..iËt ¡r¡tí'.ir1jii¡aaia¡i¿ir¡¡ih;ir.ii..¡¡¡ir'.¡lïi.aiì¡¡i¡ôli¡¡ir.ïr¡är!:a¡ir¡Ì¡¡iìt"ii¡:iris¡r.3 1. Allegations Set X'orth in StafPs Pleacling..... .............'.3 2. Unpled M¿tters..,.., ,,,,,,,,,',,,,,,4 l. ., Statements by V.S. (Student 1) 8 V.S.'s Testimony,. .......' 8 ^, b. V.S-ts Statenrent at thc Child Advocacy Ccnter¡,.-.;-; j.ri.,.¿r.1ai,i.i.,4..>¡;it*ó. 14 3. Testimony t¡f Erasmo Mr¡ntalvo ..,,.'..... 16 4. Telephone Records...... ..................... .....,20 5. Testimony of Other 'Witnesses ..""".".'.' 21 a. .Student I's Parents 21 b. Diana Garzn-Louis, LPC......., ....,.24 c. Rio Grande City CISD Teachers nnd Colches.....................-...'.............26 d. Rio Grandc CirJ* IIS Students and Itarents ¡;¡ìjìi¡';..¡'¡,r.1ir.,¿.;iz'¡,'t,,.¿,',,,;.,..34 MONTALVO V. SBEC 0008 TAtsLE OF CONTENTS I'AGE 2 soAH DOCKET NO. XXX-XX-XXXX.8C 1. \ilitness Credibility """"""' 43 Sexual Impropricty and Assault 45 2, """""" 3, Telling V.S. Not to Go to the Trainer """""""""""' 48 4, Telephoue Cat1s..........' """' 50 5. Student IIse of Mr. Montalvo's Jacuzzi'.'..'.,"""""' -;'*--"""""' 52 6. Sunrmary and Resomnrendttiorr """""'52 MONTALVO V. SBEC 0009 SOAH DOCKDT NO. 70I-1I-8468.8C TEXAS EDUCATION ÄGENCY $ BEFORE THD STATE OÍ'FICD EDUCATOR CERTIIÍICATION ANI) $ STANDARDS DIVISION, $ Petitioner $ $ OF Vi, s $ ERASMO IVIONTALVO, JR., $ Respondent $ ADMI NI STRATIVTi, HEARINGS PROPOSAL FOR DECISION The staff (SIr¡fÐ of the Texas Education Agency, Educator Certification and Søndard-s Division (TEA), on behalf of the State Boa¡d for Educator Certification (SBEC or the Board), brought this {isciplirìary action against Erasmo Montalvo, Jr,, to permanently revoke his Texas Educator Certificate.r Staff âlleges that Rcspondent engagcd in sexual contact r'vith a fcmale high school student and otherwise treated her in a neglectful or harmful filanner' The Actministrative Law Juclge (ALJ) fìrrds tbe eviclence fails to prepottderate ìn suppott of StafPs allegations. 'fhe AL,J recommends that no sanction be assessed against Mr. Montalvo. I. JURISDICTION, NOTICE, AND PROCEDUR.AL HISTORY of notjce or jurisdiction are acldressed in the findings of fact. Issues General issues concerning the scope of the case, as determinecl by the pleaclings, are discussed below in connection witli Staff s allegatiorrs' The hearing was held January g-12, 2012, before ALJ Shannon Kilgore at the State Officc of Administrative I'Iearings (SOAIÐ in the'Williarn P. Clements Brrilding,300 West l5rr' Street, pourth Floor, Austin, Texas. Staff was represented by atforneys Richard J. Ybarra and lr4erle Hoffnlan Dover, Mr. Montah,o appeared ancl was represented by attorneys lr4ark Robinett 'lex. Educ. Code $ 21,015. ' TEA is authorizeii fo prot,ide adrninistrative fonctions and scr.liccs to SBEC. MONTALVO V. SBEC 001 0 soÄH DocKIlT NO, 701-ll-8468.8C PROPOSAL FOR DECISION PAGE,2 and CoÌey Tanner. The recorcl closed on lvlarch 9,2012, with the parties' submission of reply briefs,'? II. DISCUSSION A. Llndisputed Background fiacts Mr, Montalvo holds a Texas Educator Certificate issued by the Board. In the spring of 2008, Mr.lr4ontalvo was a track and field coach at the Rio Grande City High School (Rio (hande City I-IS), part of the Rio Grande City Consolidated Independent School District (Rio Grande City CISD). He was also the physical education coach at a CISD elementary school, $tudent I (also r.feo"A to as "V.S."),3 afemale seniorunder the age of 18, was on the hìgh school tlack team coached by Mr. Montalvo. Dulirrg the 2008 ûack season, she suffered a ha¡rstri¡g injur.y. Student 1 received a track and field scho)arship to attend college in Corpus Clristi the following year, She graduated from high school in May 2008 and lefl for college that August. Ar some point during the 2008-2009 academic year, V.S. told a c.ounselor at her college and her family that tvlr. Montalvo had sexually assaulted her in the spring of 2008, In 2009, Mr.Montalvo was chargecl with trvo counts of secottd-degtee'felony improper relationship between educator and student. He was indicted in October 2009, and acquitted of both counts following a jury trial.'l 2 The parties' blieîs included proposed findilgs offact and conclusions of !aw, Proposed 1-rndings offäct an¿ conr:lusi¡rns of law not spe(:ifirally adopted in this proposal for clecision (PFD) are ovenuled. 3 This srudort was rcl'crcd to i¡ Staft's pfeadings as "Súudent l" ìrul in the henring mostly as "\'.S." The AL-,| therefo¡e uscs boih rnethods of referring to the sludent. 4 Rcspondcnt's Exhibits l-3. MONTALVO V. SBEC 001 I soAH DOCKET NO. XXX-XX-XXXX.8C PROPOSAL FOR DECISION PAGE 3 R. The Allegations L, Allegations Sct X'orth in StafPs Pleading Tlre primary altegation of Slaffs Original Petition is that, in the spring of 2008, lvfr. Montalrro engaged in unwarrted sexual contact with Stude¡lt I ort a number of occasions, StafPs specific aJlegafiorrs of sekual inrpropriet¡' are as follows:5 a Res¡rondent [nrassaged] Stuclent I's leglhamstring area and would move farther and farther up her leg as he massaged her. Ultimately, Respondent's touchíng became inappropriate, moving up into Student I's genital area, a Stuclent 1, along with other 1'emale students on the girls' track team, would go to Respondent's home to soali jn his "hot tub," wbich was actually a Jacuzzi-style batlrtub in the master bedroom of his home. On one of these occasions when Student I was alone with Respondent in his home, in or arouncl April 2008, Respondent invited Student I to use his "hot tub." He then asked her to lie on his bed so thal he could nrassage her leg. At that time, Respondent then proceeded to engage in oral sex witlr Student L a Subsequently, Respondent ÈnBaged in sexual telations witb Student I on school property in the Field House. a Continuing on through the spring semester of 2008, Respondent would engage in inappropriate touching of Student l, sometimes occttrring on school propefly, Staff asserts tbat Mr. Montalvo told V.S. that if she lold the athletic trainer she was injured, the. trainer would not let her run in the district and regional track meets, Furthet, Staff alleges that, during the spring of 2008, Mr. Montalvo engaged in approxjrnately 480 phone calls witb Studeot l, with over B0 of the calls placed after l0:0(l p.m. lvfr. Montalvo denies all allegations ol'sexual nrisconduct. He denies any assertion that he told V..S, not to go to the trainer. He admits lhat there were plrone calls with Student l, but assefls that he does not know the numbel of calls. He' cie¡ic.s tlut the calls were inappropriate,d r 'l'hc allcgations are taken 6'om Steff's Original Petition at 2"5, as amended through an unopposed oral rnotion at thc hearing. I 'I'r. at 4-5. 6 Monlalvo's .Answer at 2, N,lr. MONTALVO V. SBEC 0012 soAH DOCI(E',t' NO. 701 -lr-8468.8C PROPOSAL FOR DECISION PAGE 4 2. Unpled Matters In iis opening sratementT and closing zugnrnenls. Staffhas made amunber of additional assertions, including that Mr. \4ontalvo: gave V,S, rides home; rubbed down and massagcd female athletes, inclucling V.S,; stretched female athletes in a way that looked inappropriate; allowed female athletes, including V,S., to take ice baths in the field house without a I'emale coach present to supervise; was alone with female athletes, including V.S., in a hotel room; gave female athletes, including V.S., gifts; lailed to refer V.S. for counseliug in conuection v"ith ber suicidal thoughts; slappecl girls on tleir backsides; and took V.S, to be massaged by a female coach who rvas not licensed or certified to give mâssages.8 Staff specificalty argues that manyïf these assertions constitute bases for sanction,e There are no factual allegations in Staff s pleadinglo to support any of these contentions, rühile there are mùty factual assertions in Staffls pleading, there is uo mention of rides home, stretching of female athletes, ice baùs, being alone with female athletes, gifts, handling of an athlete with suicidal thorrght.s, Slapping of backsides, or a massage by an uncertified female coach. As to massages, Staff s pleadirig alleges that Respondent massaged V'S. imrnediately after ¡.er hamstring injury, that a massage on a later date became sexual, and that he told V-S. that he needed to continue to massage her due to her injury.ll However, there is no allegation that Mr. Montalvo should not have been engaged in non-sexual massages or rub dow¡rs of female athletes, as Staff argues. At hearin-r, Søff orally amended the. factual assertions in its pleading, but did ttot move to include factual allegations going to arry of the matters describecl above, In his reply brief. .Mr.lvlontalvo objected to Staft's going beyond the confines of itspleading'¡z The objection is , ,,(L-.. .;¡,. - t. , 1 Tr, at 19. * Peticioner's Clo.sing Argtrtnent a¡' 62o. e Petitioner's Closing Ârgumcot at 20. r0 Stafl--s Original Petition, as orally anrerrded at hearing. rr Stafls Originaì Petition at 3-4, r2 Respontlent's Post-l'leaLing repìy Brief at 7' MONTALVO V. SBEC 001 3 PROPOSAL FOR DECISION PAGE 5 soAH DoCKU',l' No. ?0I -l l-8468.I1C sustained; those matters zrrenot considered as possibl" ina.p"ndent bases tbr sanction.l3 Holvever, the ALJ does consider the svidence relevant to those lnatters in light of whether it supports the allegations actually plècl by Søff- C. Applicable Legal Standards SBÉC may take disciplinary action against an educator who is unrt'ofthy to inslruct or supervise lhe youth of this state or u'ho has violaæd olÌe or more provisíons of the Eduoatots' youth Code of Ethics,r{ In this case, Staff conten