# Hermenia Jenkins v. Crosby Independent School District and Michael L. Williams in His Official Capacity as State Commissioner of Education > Texas Court of Appeals, 3rd District (Austin) · July 10, 2015 URL: https://www.frixlaw.com/law-library/cases/4070100 ## Case - **Court:** Texas Court of Appeals, 3rd District (Austin) - **Decided:** July 10, 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/4070100 ## Opinion text ACCEPTED 03-15-00313-CV 6015790 THIRD COURT OF APPEALS AUSTIN, TEXAS 7/10/2015 11:56:19 AM JEFFREY D. KYLE CLERK CASE NO. 03-15-00313-CV _______________________________ FILED IN 3rd COURT OF APPEALS IN THE COURT OF APPEALS AUSTIN, TEXAS FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN 7/10/2015 11:56:19 AM _____________________________ JEFFREY D. KYLE Clerk HERMENIA JENKINS , Appellant v. CROSBY INDEPENDENT SCHOOL DISTRICT, and MICHAEL L. WILLIAMS, COMMISSIONER OF EDUCATION, Appellees _______________________________________ Appealed from the 200th Judicial District of Travis County, Texas Cause No. D-1-GN-14-000619 Jenkins v. Crosby Indep. Sch. Dist. and Michael L. Williams The Honorable Amy Clark Meachum presiding _______________________________________ APPELLANT’S BRIEF ____________________________________ Kevin F. Lungwitz State Bar No. 12698790 Elizabeth Poole State Bar No. 24051201 The Lungwitz Law Firm, P.C. 3005 S. Lamar Blvd. Box D-109-362 Austin, Texas 78704-4785 P. 512.461.0188 F. 866.739.7138 Kevin@LungwitzLaw.com Elizabeth@LungwitzLaw.com Attorneys for Appellant Hermenia Jenkins ORAL ARGUMENT REQUESTED July 10, 2015 I. IDENTITIES OF PARTIES AND ATTORNEYS Appellant/Plaintiff Hermenia Jenkins Attorney in District Court and Court of Appeals: Kevin Lungwitz State Bar No. 12698790 Elizabeth Poole State Bar No. 24051201 THE LUNGWITZ LAW FIRM, P.C. 3005 S. Lamar Blvd. Box D-109-362 Austin TX 78704 Phone: 512.461.0188 Fax: 866.739.7138 Kevin@LungwitzLaw.com Elizabeth@LungwitzLaw.com Appellee/Defendant: Crosby Independent School District Attorneys in District Court and Court of Appeals: David B. Hodgins Rebecca R. Weimer THOMPSON & HORTON, L.L.P. 3200 Southwest Freeway, Suite 2000 Houston TX 77027 Tel: 713.554.6745 Fax: 713.583.8245 DHodgins@thompsonhorton.com RWeimer@thompsonhorton.com _______________________________________________________________________________________ Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV Appellant’s Brief Page 2 Appellee/Defendant: Michael L. Williams, Commissioner of Education Attorneys in District Court and Court of Appeals: Andrew Lutostanski Assistant Attorney General OFFICE OF THE ATTORNEY GENERAL OF TEXAS Administrative Law Division Andrew.Lutostanski@texasattorneygeneral.com Ken Paxton/Greg Abbott, Attorney General of Texas Charles E. Roy/Daniel T. Hodge, First Assistant Attorney General of Texas James E. Davis/David C. Mattax, Dep. Attorney General for Defense Litigation David A. Talbot, Jr., Chief - Administrative Law Division P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 Telephone: (512) 475-4200 Facsimile: (512) 457-4680 _______________________________________________________________________________________ Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV Appellant’s Brief Page 3 TABLE OF CONTENTS IDENTITY OF PARTIES AND ATTORNEYS ......................................................... 2 TABLE OF CONTENTS ............................................................................................ 4 TABLE OF APPENDICES ........................................................................................ 5 INDEX OF AUTHORITIES ...................................................................................... 6 STATEMENT OF THE CASE .................................................................................. 8 STATEMENT REGARDING ORAL ARGUMENT ................................................ 8 STANDARD OF REVIEW ........................................................................................ 9 ISSUES PRESENTED ............................................................................................... 10 STATEMENT OF FACTS .......................................................................................... 11 SUMMARY OF THE ARGUMENT .......................................................................... 12 ARGUMENT .............................................................................................................. 14 1. Texas law requires a principal to be employed in the “same professional capacity” from year to year, unless the school board nonrenews her contract. Here, Jenkins was employed as principal for eight years, then involuntarily reassigned to assistant principal without receiving the quasi- due-process protections of the contract nonrenewal process. Is principal in the “same professional capacity” as assistant principal? .............................. 14 A. Texas Education Code §21.201(1) defines “professional capacity” in §21.206. ............................................................................................. 14 B. A principal’s job is not comparable to an assistant principal’s job. ...... 20 2. School districts must employ each educator under a contract with a legitimate professional capacity. Jenkins was a principal, but her contract says she was an “Employee” which is not a legitimate professional capacity. The commissioner found that Jenkins was an “administrator,” a term not found in her contract or defined in law, but broad enough to encompass her reassignment from principal to assistant principal. Did the commissioner correctly interpret the contract? ................................................ 24 CONCLUSION ........................................................................................................... 29 PRAYER .................................................................................................................... 30 CERTIFICATE OF COMPLIANCE ......................................................................... 31 CERTIFICATE OF SERVICE ................................................................................... 32 _______________________________________________________________________________________ Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV Appellant’s Brief Page 4 TABLE OF APPENDICES 1. Jenkins v. Crosby Indep. Sch. Dist., Docket No. 043-R10-1211 (Tex. Comm’r Educ. 2013) 2. Final Judgment - Jenkins v. Crosby Indep. Sch. Dist., No. D-1-GN-14- 000619 (200th Dist. Ct., Travis County, Tex. Feb. 26, 2015) 3. Texas Education Code Chapter 21, Subchapter E §§21.201-21.213 4. Texas Education Code §11.201 and §11.202 5. Jenkins’ Employment Contract 2011-2013 6. Barich v. San Felipe-Del Rio Cons. Indep. Sch. Dist., Docket No. 117-R1a-484 (Tex. Comm’r Educ. 1985) 7. Perales v. Robstown Indep. Sch. Dist., Docket Nos. 053-R10-104; 084-R3-604 (Tex. Comm’r Educ. 2006) 8. Carpenter v. Wichita Falls Indep. Sch. Dist., Docket No. 247-R3-491 (Tex. Comm’r Educ. 1993) 9. Lehr v. Ector County Indep. Sch. Dist., Docket No. 003-R3-0908 (Tex. Comm’r Educ. 2011) 10. Young v. Leggett Indep. Sch. Dist., Docket No. 175-R3-898 (Tex. Comm’r Educ. 1998) 11. Wheeler v. Austin Indep. Sch. Dist., Docket No. 008-R3-1108 (Tex. Comm’r Educ. 2011) 12. Tuck v. Alief Indep. Sch. Dist., Docket No. 008-R10-1007 (Tex. Comm’r Educ. 2012) 13. Chart of reassignment decisions from the commissioner (From the commissioner’s brief filed in Travis County District Court.) _______________________________________________________________________________________ Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV Appellant’s Brief Page 5 INDEX OF AUTHORITIES Texas Cases: Evergreen Nat. Indem. Com. v. Tan It All, Inc., 111 S.W. 3d 669 (Tex. App. - Austin 2003, no pet.) ...................................................... 28 Kelley-Coppedge, Inc. v. Highlands Ins. Co., 980 S.W.2d 462 (Tex. 1998) ............................................................... 28 Montgomery Independent School District v. Davis, 34 S.W.3d 559, 566 (Tex. 2000) ............................................................................................ 9 Poole v. Karnack Indep. Sch. Dist., 344 S.W.3d 440, 443 (Tex. App. – Austin 2011, no pet.) ....................................................... 9 Commissioner’s Decisions: Barich v. San Felipe-Del Rio Cons. Indep. Sch. Dist., Docket No. 117-R1a-484 (Tex. Comm’r Educ. 1985) ..... 16, 17, 19, 20 Carpenter v. Wichita Falls Indep. Sch. Dist., Docket No. 247-R3-491 (Tex. Comm’r Educ. 1993) ................... 16, 26 Jenkins v. Crosby Indep. Sch. Dist., Docket No. 043-R10-1211 (Tex. Comm’r Educ. 2013) ........... 8, 18, 24 Lehr v. Ector County Indep. Sch. Dist., Docket No. 003-R3-0908, p. 13 (Tex. Comm’r Educ. 2011) ....... 15, 19 Martinez v. San Antonio Indep. Sch. Dist., Docket No. 219-R3-589 (Tex. Comm’r Educ. 1989) ........................ 17 Perales v. Robstown Indep. Sch. Dist., Docket No. 053-R10-104; 084-R3-604 (Tex. Comm’r Educ. 2006)..16 Ramos v. El Paso Indep. Sch. Dist., Docket No. 002-R10-900 (Tex. Comm’r Educ. 2002) ...................... 17 Tuck v. Alief Indep. Sch. Dist., Docket No. 008-R10-1007 (Tex. Comm’r Educ. 2012) ..................................................................................... 15, 19, 20, 25, 28 Wheeler v. Austin Indep. Sch. Dist., Docket No. 008-R3-1108 (Tex. Comm’r Educ. 2011) ........... 18, 25, 28 Young v. Leggett Indep. Sch. Dist., Docket No. 175-R3-898 (Tex. Comm’r Educ. 1998) ........................ 25 _______________________________________________________________________________________ Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV Appellant’s Brief Page 6 Texas Statutes and Administrative Code: Texas Education Code §7.057(d) ................................................................... 9 Texas Education Code §11.201 and 11.202 .................................................. 21 Texas Education Code §11.253..................................................................... 21 Texas Education Code §11.253(h) ................................................................ 22 Texas Education Code Chapter 21 ................................................................ 14 Texas Education Code §21.002..................................................................... 27 Texas Education Code §21.201................................................... 12, 13, 16, 26 Texas Education Code §21.201(1) ...................... 12, 14, 15, 16, 18, 19, 20, 29 Texas Education Code §21.206....................................... 12, 14, 15, 16, 19, 20 Texas Education Code §21.206(b) .................................................... 14, 15, 18 Texas Education Code §21.210(c) ................................................................ 16 Texas Education Code §21.212..................................................................... 15 Texas Education Code §21.212(b) ................................................................ 15 Texas Education Code §21.354..................................................................... 23 Texas Education Code §21.3541................................................................... 23 Texas Education Code §21.357..................................................................... 22 Texas Education Code §39.107(b) ................................................................ 22 Texas Govt. Code §2001.174 .......................................................................... 9 Texas Govt. Code Chapter 2001, subchapters F and G .................................. 8 19 Texas Admin Code Chapters 241 and 242 ............................................... 23 19 Texas Admin Code §232.2(b) .................................................................. 23 _______________________________________________________________________________________ Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV Appellant’s Brief Page 7 STATEMENT OF THE CASE Nature of the This is a public educator employment and contract case. case The case is procedurally governed by Texas Education Code §7.057(d), which gives this court jurisdiction; and Texas Government Code Chapter 2001, subchapters F and G. Jenkins pursued an employment grievance. (R. 287-289; R. 327-336) The Crosby ISD school board denied the grievance on October 24, 2011. (R. 324) The Jenkins timely appealed to the Commissioner of Commissioner Education who affirmed the school board on December of Education 19, 2013. Jenkins v. Crosby Indep. Sch. Dist., Docket No. 043-R10-1211 (Tex. Comm’r Educ. 2013) (Appx. 1, R. 5-30). Trial Court Jenkins timely appealed the Commissioner’s Decision to Judge, district, the 200th Judicial District Court of Travis County, county and Texas. Jenkins v. Crosby Indep. Sch. Dist. and Michael disposition L. Williams, Cause No. D-1-GN-14-000619. On February 26, 2015, the Honorable Amy Clark Meachum signed the Final Judgment affirming the Commissioner’s Decision. (Appx. 3) Jenkins timely filed a motion for new trial on March 23, 2015, which was overruled by operation of law. Third Court of Jenkins filed a Notice of Appeal on May 22, 2015. Appeals STATEMENT REGARDING ORAL ARGUMENT Oral argument would aid in the Court’s decision on the novel issues presented. The likely presence of amici curiae indicates a broad interest in the issues among affected members of the school law community. All of the attorneys _______________________________________________________________________________________ Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV Appellant’s Brief Page 8 in this case have experience in the narrow field of school law, providing the Court the opportunity to inquire about matters that the briefs may not fully resolve. STANDARD OF REVIEW This Court has jurisdiction pursuant to §7.057(d) of the Texas Education Code. Judicial review of the commissioner’s decision is governed by a substantial evidence review, as set forth in §2001.174 of the Texas Administrative Procedure Act. Poole v. Karnack Indep. Sch. Dist., 344 S.W.3d 440, 443 (Tex. App. – Austin 2011, no pet.). Under the substantial evidence rule, this Court reviews issues of law de novo. Tex. Gov. Code §2001.174. This appeal involves pure issues of law. This Court must confine its review to the record of the proceedings before the commissioner. In reviewing the commissioner's decision, this Court must determine whether there is "more than a mere scintilla" of evidence to support the commissioner's decision. Whether the commissioner's decision meets that standard is a question of law. Montgomery Independent School District v. Davis, 34 S.W.3d 559, 566 (Tex. 2000). Substantial evidence does not exist to support the commissioner’s decision and the commissioner’s conclusions of law are in violation of statute, in excess of the agency’s statutory authority, or are otherwise erroneous. Tex. Gov. Code §2001.174. _______________________________________________________________________________________ Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV Appellant’s Brief Page 9 ISSUES PRESENTED 1. Texas law requires a principal to be employed in the “same professional capacity” from year to year, unless the school board nonrenews her contract. Here, Jenkins was employed as principal for eight years, then she was involuntarily reassigned to assistant principal without receiving the quasi-due-process protections of the contract nonrenewal process. Is principal in the “same professional capacity” as assistant principal? 2. School districts must employ each educator under a contract with a legitimate professional capacity. Jenkins was a principal, but her contract says she was an “Employee” which is not a legitimate professional capacity. The commissioner found that Jenkins was an “administrator,” a term not found in her contract or defined in law, but broad enough to encompass her reassignment from principal to assistant principal. Did the commissioner correctly interpret the contract? _______________________________________________________________________________________ Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV Appellant’s Brief Page 10 STATEMENT OF FACTS1 Jenkins served as campus principal of Charles R. Drew Intermediate School from 2003 through June 2011. (R. 258, grievance transcript) She was employed by Defendant Crosby Independent School District (CISD) under a term contract for the school years 2011 - 2013, which she signed on March 2, 2011. (Appx. 5; R. 294 ex. 4) The contract is silent regarding her job placement or employment classification. (e.g. principal, teacher, administrator, counselor, etc.) The contract merely refers to Jenkins as “Employee.” (Appx. 5) The superintendent informed her by memo dated June 28, 2011 that he was reassigning Jenkins from campus principal of Charles R. Drew Intermediate to assistant principal at Crosby High School for the 2011-12 school year. No performance reason was given for the reassignment. (R. 291) At the time, Jenkins had worked in CISD for 16 years, the previous eight years as principal. Jenkins objected to the reassignment by pursuing an employment grievance under school board policy DGBA. The school board denied the grievance. (R. 287-322; R. 324) Policy DGBA does not provide for a due process hearing; only a “stop, look and listen” hearing. (R. 327) 1 “R.” stands for administrative record, and is followed by the administrative record page number. The administrative record is part of the reporter’s record. _______________________________________________________________________________________ Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV Appellant’s Brief Page 11 SUMMARY OF THE ARGUMENT THE FIRST ISSUE: Principal and assistant principal are not in the “same professional capacity” in Texas Education Code §21.206. Texas Education Code §21.201(1) defines “teacher” as “superintendent, principal, supervisor, classroom teacher, counselor, or other full-time professional employee who is required to hold a certificate …, or a nurse.” (Appx. 3, emphasis added) Applying the law to the facts, §21.206 requires that Jenkins - a principal - be employed in the “same professional capacity” from year to year, unless the school board invokes the statutory, contract nonrenewal process. (Appx. 3) Jenkins lost her job as principal without receiving the protections of the quasi-due-process contract nonrenewal process because CISD and the commissioner erroneously construed principal and assistant principal to be in the same professional capacity. For years the commissioner has opined that the positions listed in §21.201, including superintendent, classroom teacher, counselor, librarian and nurse are all distinct professional capacities - except for principal. Instead of looking to the list of professional capacities in §21.201 to decide this case, the commissioner first looked to the job title in the contract. Here, the contract was too vague to determine professional capacity, so the commissioner purportedly reviewed the authority, duties and salaries of the positions before and after the reassignment to determine whether they fell within the same professional _______________________________________________________________________________________ Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV Appellant’s Brief Page 12 capacity. Even by this standard, it is clear that principal is not in the same professional capacity as assistant principal. By law, a principal is the sole, campus instructional leader and state law largely defines the authority and duties. Conversely, state law does not define what an assistant principal does. An assistant principal serves at the pleasure of the principal, subject to a local job description. Also, the job descriptions in this case prove that principal and assistant principal are not in the same professional capacity. THE SECOND ISSUE: A school district must employ each educator under a contract with a legitimate professional capacity. Though Jenkins had been employed as principal for the preceding eight years, Jenkins’ contract with CISD said she was a generic “employee,” which the commissioner has said is not a legitimate professional capacity. To resolve this contractual ambiguity, the commissioner erroneously held that Jenkins was an “administrator,” another generic term broad enough to encompass her reassignment to assistant principal. But “administrator” does not appear anywhere in Jenkins’ contract or in §21.201, and it is not defined in relevant state law. Since the contract did not state a legitimate professional capacity, the commissioner should have construed it narrowly against the author, CISD, as a contract for the position of “principal,” thereby invalidating Jenkins’ reassignment to assistant principal. _______________________________________________________________________________________ Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV Appellant’s Brief Page 13 ARGUMENT 1. Texas law requires a principal to be employed in the “same professional capacity” from year to year, unless the school board nonrenews her contract. Here, Jenkins was employed as principal for eight years, then involuntarily reassigned to assistant principal without receiving the quasi-due-process protections of the contract nonrenewal process. Is principal in the “same professional capacity” as assistant principal? A. TEXAS EDUCATION CODE §21.201(1) DEFINES “PROFESSIONAL CAPACITY” IN §21.206. Chapter 21 of the Texas Education Code governs the contractual relationship between the professional, certified employee and the school district. Texas Education Code §21.201(1) defines teacher as: A superintendent, principal, supervisor, classroom teacher, counselor, or other full-time professional employee who is required to hold a certificate issued under Subchapter B, or a nurse. (Appx. 3, emphasis added) One of the greatest statutory protections teachers have is the right to be employed from year to year, under contract, in the same professional capacity unless the school district invokes the statutory, contract nonrenewal process. Texas Education Code §21.206(b) states, “The board’s failure to give [timely, written notice of proposed, contract nonrenewal] … constitutes an election to employ the teacher in the same professional capacity for the following school year.” (Brackets and emphases added) (Appx. 3) The commissioner has described this _______________________________________________________________________________________ Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV Appellant’s Brief Page 14 passage in §21.206 as “a central plank” in an educator’s statutory contract rights. Tuck v. Alief Indep. Sch. Dist., Docket No. 008-R10-1007, p. 5 (Tex. Comm’r Educ. 2012) (Appx. 12). Since the term “teacher” specifically includes principal, as applied in this case §21.206(b) says, “The board’s failure to give [statutory written notice of proposed, contract nonrenewal] … constitutes an election to employ the principal in the same professional capacity for the following school year.” (Brackets and emphases added; “principal” substituted for “teacher”) (Appx. 3) Principal is one of several “professional capacities” specifically identified in §21.201(1).2 If a school board seeks to nonrenew a principal’s contract at the end of the school year, the statutory nonrenewal process in §21.206 requires the board to give a principal timely written notice and reasons for the proposed nonrenewal, and an opportunity for a formal hearing to challenge the reasons. At the hearing, the principal has the right to be represented, to hear the evidence against her, to cross- examine adverse witnesses, and to present supporting evidence. Tex. Educ. Code 2 Superintendents are not included in the definition of “teacher” in §21.206. Superintendents are protected by §21.212, the only other place in the Education Code where the term “same professional capacity” is used. While the contract nonrenewal procedures for superintendents are slightly different than for principals, supervisors, classroom teachers, and counselors, §21.212(b) still requires a school board to “employ the superintendent in the same professional capacity for the following school year” if the board fails to timely invoke the contract nonrenewal process. (Appx. 3) It is undisputed that superintendent is a “professional capacity” and that a school board cannot reassign a superintendent without following the contract _______________________________________________________________________________________ Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV Appellant’s Brief Page 15 §21.210 (c). These protections are best described as due process or “quasi-due- process” protections.3 Here, Jenkins lost her principal job without ever receiving these protections. She was only allowed to pursue a grievance with a “stop, look, and listen” review by the school board. (R. 327; 287-289) There are no reported Texas court cases on whether §21.201 defines some or all of the “professional capacities” referred to in §21.206.4 Barich v. San Felipe- Del Rio Cons. Indep. Sch. Dist., Tex. Educ. Agency Docket No. 117-R1a-484 (Tex. Comm’r Educ. 1985) (Appx. 6), is the commissioner’s watershed decision on reassignments. In Barich, the issue was whether an ROTC instructor had to be reassigned to the same ROTC position (for which he may not have been properly certified by the U.S. Air Force), or another teaching position for which he was certified by the Texas Education Agency. The commissioner explained that the nonrenewal process. Lehr v. Ector County Indep. Sch. Dist., Tex. Educ. Agency Docket No. 003-R3-0908, p. 12 (Tex. Comm’r Educ. 2011) (Appx. 9) 3 While these protections include the traditional components of due process, the legislature has declared that, “A teacher does not have a property interest in a contract beyond its term.” Tex. Educ. Code §21.204 (e). Whether this declaration formally undercuts a claim to due process in light of these traditional due process rights, is beyond the scope of this case. Suffice it to say that the contract nonrenewal protections are at the very least “quasi-due-process” in nature. 4 The commissioner has confronted this argument before. Perales v. Robstown Indep. Sch. Dist., Docket Nos. 053-R10-104; 084-R3-604 (Tex. Comm’r Educ. 2006) (Appx. 7) “Same professional capacity,” as used in Texas Education Code section 21.206, is not limited to the individual classifications used in Texas Education Code section 21.201(1).” Carpenter v. Wichita Falls Indep. Sch. Dist., Docket No. 247-R3-491 (Tex. Comm’r Educ. 1993) (Appx. 8) “Appellant would have the commissioner … hold that the phrase "same professional capacity" … is … defined … by the definition of "teacher" found in §21.201(1) of that Act. … [T]his phrase is … undefined … and … is a matter for interpretation by the commissioner, in the first instance, and by the courts.” _______________________________________________________________________________________ Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV Appellant’s Brief Page 16 legislature used the phrase “same professional capacity” rather than “exact same position,” thereby giving districts flexibility in personnel assignments “while discouraging the abuse of the district’s inherent or contractual reassignment authority.” Barich, pp. 7-8 (Appx. 6) Jenkins agrees that an employee is not entitled to the exact same position from year to year. “Same professional capacity” lies somewhere between, on the one hand, the “exact same position,” and on the other hand, the school district’s unfettered authority to reassign employees. The elementary principal of Campus A may be reassigned as elementary principal of Campus B as in Martinez v. San Antonio Indep. Sch. Dist., Tex. Educ. Agency Docket No. 219-R3-589 (Tex. Comm’r Educ. 1989) (Appx. 8). A high school principal may be reassigned as an elementary school principal as in Ramos v. El Paso Indep. Sch. Dist., Tex. Educ. Agency Docket No. 002-R10-900 (Tex. Comm’r Educ. 2002) (Appx. 9). However, since principal is its own professional capacity, CISD cannot reassign Jenkins from principal to assistant principal without giving her the protections of the contract nonrenewal process. The commissioner recently described the competing interests that exist in reassignments: T h e district is given some flexibility to reassign employees in order to manage staff to cover school needs, while employees are assured of due process to protect against decisions that effectively demote them or _______________________________________________________________________________________ Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV Appellant’s Brief Page 17 fundamentally alter their existing contractual relationships with and duties to the employing district. Wheeler v. Austin Indep. Sch. Dist., Docket No. 008-R3-1108, p. 3 (Tex. Comm’r Educ. 2011) (Appx. 11). Though the commissioner speaks as if he tries to balance the different interests, the scales are always tipped against administrators. For 30 years prior to this case, the commissioner has never rejected a reassignment from one administrator position to another. (Appx. 13) Jenkins was effectively demoted from the unique position of campus principal to one of several assistant principals at a different campus, fundamentally altering her contractual relationship with the district, without any quasi-due-process protection that the commissioner promised to protect. The commissioner opined in this case, “The positions described in the first sentence of Texas Education Code section 21.201(1) may or may not be professional capacities for purposes of Texas Education Code section 21.206(b).” Jenkins v. Crosby Indep. Sch. Dist., Tex. Educ. Agency Docket No. 043-R10-1211 (Tex. Comm’r Educ. 2013) (Appx. 1, p. 24 emphasis added). This indecisiveness is an acknowledgement by the commissioner that he has recognized as professional capacities many of the positions listed in §21.201(1), but not principal. An administrator … may not be placed in the capacity of a classroom teacher; a classroom teacher may not be placed in the capacity of a counselor; a counselor may not be placed in the capacity of a nurse; a nurse may not be placed in the capacity of a librarian; etc. _______________________________________________________________________________________ Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV Appellant’s Brief Page 18 Barich, p. 8 (Appx. 6); See Tuck v. Alief Indep. Sch. Dist., Docket No. 008-R10- 1007, p. 6 (Tex. Comm’r Educ. 2012) (Appx. 12). Thus, the commissioner has conceded that §21.201(1) defines “professional capacity” as to superintendent, classroom teacher, counselor, nurse, and librarian.5 However, without any rationale, the commissioner has failed to include principal in that group, even though it is also specifically identified in §21.201(1). Defendants will argue that superintendents have statutory authority to reassign staff and that the employment contract also grants reassignment authority. There is a kernel of truth to that, but “same professional capacity” in §21.206 has always tempered the school district’s authority to reassign professional staff. Section §21.206 also trumps any contract language that says an employee may be reassigned. This is the tension that the commissioner accurately described in Barich that exists between “exact same position” and the district’s “abuse” of its right to reassign. The commissioner said it best: It would be odd for districts to believe just because contracts referred to employees as ‘professional employees’ that they could reassign such employees to any other professional position. If that were the case, superintendents could be reassigned as librarians and school nurses. 5 Superintendents may not be reassigned out of their professional capacity. Lehr v. Ector County Indep. Sch. Dist., Docket No. 003-R3-0908, p. 13 (Tex. Comm’r Educ. 2011) (Appx. 9) _______________________________________________________________________________________ Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV Appellant’s Brief Page 19 Tuck v. Alief Indep. Sch. Dist., Docket No. 008-R10-1007, p. 11 (Tex. Comm’r Educ. 2012) (Appx. 12). If this Court finds that principal is its own professional capacity like superintendent, classroom teacher, counselor, librarian and nurse, Jenkins can still be reassigned to another campus as principal. Jenkins could agree to a reassignment to another professional capacity. But the district could not involuntarily reassign her to a position other than principal without giving her the quasi-due-process protections of the contract nonrenewal process. Employing a principal as an “employee,” then claiming an unchecked right to reassign her, is an “abuse of the district’s inherent or contractual reassignment authority,” the very thing the commissioner promised to guard against in Barich. Barich, pp. 7-8 (Appx. 6). B. A PRINCIPAL’S JOB IS NOT COMPARABLE TO AN ASSISTANT PRINCIPAL’S JOB Assuming arguendo that §21.201(1) does not define “professional capacity” in §21.206, principal and assistant principal are still not in the same professional capacity. The commissioner has stated that he will review “differences in authority, duties, and salary” to determine if two jobs are in the same professional capacity. Barich p. 8. (Appx. 6.) He has declared that the test is “fact-intensive.” Tuck v. Alief Indep. Sch. Dist., Docket No. 008-R10-1007, p. 11 (Tex. Comm’r Educ. 2012) (Appx. 12). But, once the employee is declared to be an _______________________________________________________________________________________ Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV Appellant’s Brief Page 20 “administrator,” the commissioner’s test has proven to be a legal fiction. No matter how different the authority, duties and salary, the result for administrators is always the same: The commissioner has approved all administrator-to- administrator reassignments for the last 30 years. (Appx. 13) An objective comparison of the authority and duties between principal and assistant principal prove that the positions are fundamentally different and are not in the same professional capacity. Like a superintendent, and unlike any other position in the public schools, a principal receives her authority and duties directly from state law. Tex. Educ. Code §§11.201, 11.202 (Appx. 4). A school district or superintendent may not alter the authority granted to a principal under state law. Pursuant to Texas Education Code §11.202 the principal has these powers: a. The principal of a school is the instructional leader of the school and shall be provided with adequate training and personnel assistance to assume that role. b. Each principal shall: 1. Except as provided by Subsection (d), approve all teacher and staff appointments for that principal's campus from a pool of applicants selected by the district or of applicants who meet the hiring requirements established by the district, based on criteria developed by the principal after informal consultation with the faculty; 2. Set specific education objectives for the principal's campus, through the planning process under Section 11.253; 3. Develop budgets for the principal's campus; _______________________________________________________________________________________ Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV Appellant’s Brief Page 21 4. Assume the administrative responsibility and instructional leadership, under the supervision of the superintendent, for discipline at the campus; 5. Assign, evaluate, and promote personnel assigned to the campus; 6. Recommend to the superintendent the termination or suspension of an employee assigned to the campus or the nonrenewal of the term contract of an employee assigned to the campus; and 7. Perform other duties assigned by the superintendent pursuant to the policy of the board of trustees. c. The board of trustees of a school district shall adopt a policy for the selection of a campus principal that includes qualifications required for that position. d. The superintendent … has final placement authority for a teacher transferred because of enrollment shifts or program changes … A principal shall regularly consult a committee of community stakeholders in the “planning, operation, supervision, and evaluation of the campus educational program.” Tex. Educ. Code §11.253(h). That a principal is granted authority directly from state law portends that the state also holds her accountable for the success or failure of the campus. A principal may not be retained at a campus deemed “unacceptable” for two years unless by permission of a statutory campus intervention team. Tex. Educ. Code §39.107(b). Conversely, a principal may receive a financial performance incentive for success. Tex. Educ. Code §21.357. State law requires specific guidelines for the appraisals of principals that are distinct from the appraisals of other administrators, including assistant principals. _______________________________________________________________________________________ Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV Appellant’s Brief Page 22 Tex. Educ. Code §21.354 and Tex. Educ. Code §21.3541. There are only two categories of administrator certificates in Texas: superintendent and principal. Title 19 Tex. Admin. Code Chap. 241 and 242.6 Not only does state law enunciate a principal’s legal duties and authority, state regulation makes it clear that, like superintendents, principals are one-of-a-kind.7 A principal is a community figure and the spokesperson for the school. When a campus principal is removed or demoted, it makes the news, even in large cities. In contrast, an assistant principal’s authority and duties come from the principal or other supervisors. There is no state law defining the authority and duties of an assistant principal. Whereas the principal is the chief instructional leader of the campus, an assistant principal serves at the pleasure of the principal and a local job description. Whereas a principal’s statutory duties may not be altered by the school district, an assistant principal’s duties may be altered at any time by her supervisors. Here, the CISD’s job description vaguely says that the assistant principal shall: Provide students with appropriate learning activities and experience designed to fulfill their potential for intellectual, emotional, physical 6 19 Tex. Admin. Code §232.2(b): Classes of certificates include the following: 1. Superintendent; 2. Principal; 3. Classroom teacher; 4. Instructional educator other than classroom teacher, including reading specialist; 5. Master teacher; 6. School librarian; 7. School counselor; 8. Educational diagnostician; and 9. Educational aide. 7 According to the commissioner, a superintendent is “sui generis,” or one-of-a-kind, and may not be reassigned. Lehr v. Ector County Indep. Sch. Dist., Docket No. 003-R3-0908, p. 13 (Tex. Comm’r Educ. 2011) (Appx. 9) _______________________________________________________________________________________ Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV Appellant’s Brief Page 23 and social growth. (R. 293) There is no comparison between the statutory authority and duties of Jenkins as principal, and the authority and duties delineated in her assistant principal job description. The commissioner erroneously stated, “The local record does not indicate with specificity what [Jenkins’] duties as assistant principal at Crosby High School are.” Jenkins v. Crosby Indep. Sch. Dist., Tex. Educ. Agency Docket No. 043- R10-1211 (Tex. Comm’r Educ. 2013) (Appx. 1, p. 2, finding of fact #4.). Had the commissioner compared Jenkins’ statutory duties as principal with the actual job description of assistant principal in the record (R. 293), he would have had no option but to declare them as wholly different professional capacities. 2. School districts must employ each educator under a contract with a legitimate professional capacity. Jenkins was a principal, but her contract says she was an “Employee” which is not a legitimate professional capacity. The commissioner found that Jenkins was an “administrator,” a term not found in her contract or defined in law, but broad enough to encompass her reassignment from principal to assistant principal. Did the commissioner correctly interpret the contract? This issue is more fact-specific than the first. The commissioner has approached reassignment cases by first looking to the job title stated in the contract. The commissioner asks: “Is the contractual job title a legitimate professional capacity? Are both jobs encompassed by the contractual job title?” If _______________________________________________________________________________________ Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV Appellant’s Brief Page 24 yes to both questions, then the two positions are probably within the same professional capacity. Young v. Leggett Indep. Sch. Dist., Docket No. 175-R3-898 (Tex. Comm’r Educ. 1998) (Appx. 10) What if the contract does not state a legitimate professional capacity and the answer to the first question is “no”? That is the case here. Jenkins was employed under a contract with Crosby ISD as an “employee.” According to the commissioner in two recent cases, “professional employee” is not a legitimate professional capacity. Wheeler v. Austin Indep. Sch. Dist., Docket No. 008-R3- 1108 (Tex. Comm’r Educ. 2011) (Appx. 11). Tuck v. Alief Indep. Sch. Dist., Docket No. 008-R10-1007, p. 11 (Tex. Comm’r Educ. 2012) (Appx. 12). The commissioner has described “professional employee” as “broad,” “undefined,” and “of little assistance in determining [the employee’s] professional capacity;” “vague” and “overbroad” (Wheeler, pp. 5-6); “broad” and “improper” (Tuck, pp. 7-8); and “not a legitimate professional capacity.” (Wheeler, p. 5; Tuck p. 7) Here the commissioner ignored the fact that Jenkins was employed as an ambiguous “employee.” There is no way to discern from reading the contract what Jenkins’ position was, therefore, the contractual job title should be replaced with Jenkins’ actual position. In this case, the contractual job title, “employee,” should have been replaced with “principal,” the job Jenkins had held for the previous eight years when she signed the contract. Without any legal reasoning, the commissioner _______________________________________________________________________________________ Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV Appellant’s Brief Page 25 found, sua sponte, that Jenkins’ professional capacity under the contract was “administrator,” thus repairing the illegitimate contract term to the benefit of the school district. “Administrator” is not a term found in §21.201, and it does not appear in Jenkins’ employment contract authored by CISD. The commissioner does not explain where he got the term or why he inserted it into the contract. The commissioner has held that “administrator” is a legitimate professional capacity, but even the commissioner concedes the term is “generic.” Carpenter v. Wichita Falls Indep. Sch. Dist., Docket No. 0247-R3-491 (Tex. Comm’r Educ. 1993) (Appx. 8). “Administrator” is a contractual black hole, pulling any and all administrative positions into it. These positions may or may not require educator certification, and may or may not be recognized in law. They might include principal, assistant principal, assistant superintendent, athletic director, attendance coordinator, science support specialist, director of Even Start, a generic central office position, textbook coordinator, and other supervisory positions, limited only by the school district’s creativity. (See Appx. 13) Though the differences in these positions are often vast, the commissioner has painted them with the same broad brush, declaring them to all reside in the same “administrator” professional capacity. If the contract says “administrator,” the commissioner has never _______________________________________________________________________________________ Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV Appellant’s Brief Page 26 overruled a reassignment from one administrator position to another for 30 years prior to this case. (Appx. 13) State law says, “A school district shall employ each classroom teacher, principal, librarian, nurse, or school counselor under a … contract.” Tex. Educ. Code §21.002. This law would have no meaning if a principal could be hired as an “employee” or “administrator” then immediately reassigned to another position without quasi-due-process contract protection. Each principal is entitled to a contract. The law says nothing about employing each administrator or employee under a contract, and indeed, does not require it. Here, this Court does not need to decide whether it is appropriate for a school district to employ a principal under an “administrator” contract. What this Court must decide is whether the commissioner erred when he unilaterally inserted that term into her contract. Jenkins objects that the commissioner altered the contract with the generic “administrator” to cure the more ambiguous “employee” designation. The commissioner should have inserted the more accurate term - “principal.” Each principal is entitled to a contract. Tex. Educ. Code. §21.002. Jenkins was employed as the statutorily designated and authorized campus principal - the campus instructional leader - for eight years preceding and during the execution of the contract in question. (R. 287-89; R. 213) She was not an ambiguous “employee” and she was not a generic “administrator.” _______________________________________________________________________________________ Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV Appellant’s Brief Page 27 Under the doctrine of contra proferentem, an ambiguous contract should be interpreted against its author. Evergreen Nat. Indem. Com. v. Tan It All, Inc., 111 S.W. 3d 669 (Tex. App. - Austin 2003, no pet.). Whether a contact is ambiguous is a question of law for the court to decide. Kelley-Coppedge, Inc. v. Highlands Ins. Co., 980 S.W.2d 462 (Tex. 1998). In other cases, the commissioner has declared contracts like Jenkins’ to be ambiguous, describing “professional employee” as “overbroad,” “vague,” and “improper.” Tuck at pp. 7-8; Wheeler at pp. 5-6. Though her contract is ambiguous as a matter of law, here, the commissioner failed to interpret the ambiguity against the author as required. Jenkins was employed as a principal, and her contract should reflect that, especially since the CISD used an ambiguous and illegitimate term to define her professional capacity. This is the only reasonable and lawful interpretation that one can impose on the contract, which was signed at the same time that Jenkins was employed as a campus principal. (R. 294) When Jenkins’ contract is construed against CISD on the question of her professional capacity, it must be concluded that she cannot be reassigned from principal to assistant principal without receiving the protections of the contract nonrenewal process. _______________________________________________________________________________________ Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV Appellant’s Brief Page 28 CONCLUSION This case does not affect the superintendent’s authority to reassign any personnel other than a principal. The school’s ability to reassign classroom teachers, counselors, librarians, nurses and other administrators is unaffected. Jenkins only advocates for the inclusion of principals among the specific list of professional capacities defined by §21.201(1). A principal is not comparable to assistant principal. Principals and superintendents derive their authority directly from state law and state certification. Assistant principals derive their authority only through their supervisors and a local job description. The position of campus principal is not a generic administrator position. As principal, Jenkins was the instructional leader, community figure, spokesperson, and chief supervisor of the campus. As assistant principal, she is one of several, operating in a supporting role, and serving at the pleasure of the principal. The school district may reassign the principal to a different campus. The district may negotiate a reassignment of the principal to a different professional capacity. If a principal is underperforming, the district may work to remediate her performance, negotiate a peaceful resolution of the employment relationship, or seek to dismiss the principal. The principal would be entitled to written reasons for dismissal, and an opportunity to challenge the reasons in a hearing. These _______________________________________________________________________________________ Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV Appellant’s Brief Page 29 approaches respect the principal’s rights for quasi-due-process, and reasonably temper the district’s unfettered authority to reassign principals. PRAYER FOR RELIEF WHEREFORE, PREMISES CONSIDERED, JENKINS respectfully requests that she be granted the following relief: A. That this Court reverse the trial court and the decision of the commissioner and render for Jenkins; B. That this Court finds that CISD breached Jenkins’ contract and/or violated Jenkins’ statutory rights; C. That this Court order CISD to immediately reinstate Jenkins to her former position as principal; D. That Jenkins be awarded such other and further relief to which she may show herself to be justly entitled. _______________________________________________________________________________________ Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV Appellant’s Brief Page 30 Respectfully submitted, /s/ Kevin F. Lungwitz Kevin F. Lungwitz State Bar No. 12698790 Elizabeth Poole State Bar No. 24051201 The Lungwitz Law Firm, P.C. 3005 S. Lamar Blvd. Suite D-109-362 Austin, Texas 78704-4785 P. 512.461.0188 F. 866.739.7138 Kevin@LungwitzLaw.com Elizabeth@LungwitzLaw.com ATTORNEYS FOR APPELLANT HERMENIA JENKINS CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. PROC. 9.4(I)(3) In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I certify that the number of words in this brief, excluding those matters listed in Rule 9.4(i)(1) is 4580. /s/ Kevin F. Lungwitz Kevin F. Lungwitz _______________________________________________________________________________________ Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV Appellant’s Brief Page 31 CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing document was served on: David B. Hodgins THOMPSON & HORTON, L.L.P. 3200 Southwest freeway, Suite 2000 Houston TX 77027 Telephone: (713) 554-6745 Telecopy: (713) 583-8245 dhodgins@thompsonhorton.com FOR APPELLEE CROSBY ISD Andrew Lutostanski Assistant Attorney General OFFICE OF THE ATTORNEY GENERAL OF TEXAS Administrative Law Division P.O. Box 12548, Capitol Station Austin TX 78711-2548 Phone: (512) 475-4200 Fax: (512) 320-0167 andrew.lutostanski@texasattorneygeneral.gov FOR APPELLEE COMMISSIONER OF EDUCATION Via e-file and courtesy email on July 10, 2015. /s/ Kevin F. Lungwitz Kevin F. Lungwitz _______________________________________________________________________________________ Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV Appellant’s Brief Page 32 APPENDIX 1 Jenkins v. Crosby Indep. Sch. Dist., Docket No. 043-R10-1211 (Tex. Comm’r Educ. 2013) DOCKET NO. 043-Rl0-1211 HERMENIA JENKINS § BEFORE THE § § v. § COMMISSIONER OF EDUCA Tl ON § CROSBY § INDEPENDENT SCHOOL DISTRICT § THE ST ATE OF TEXAS DECISION OF THE COMMISSIONER Statement of the Case Petitioner, Hermenia Jenkins, appeals the denial of her grievance by Respondent, Crosby Independent School District. Christopher Maska is the Administrative Law Judge appointed by the Commissioner of Education to preside over this cause. Petitioner is represented by Kevin F. Lungwitz, Attorney at Law, Austin, Texas. Respondent is represented by David B. Hodgins, Attorney at Law, Houston, Texas'. The Administrative Law Judge issued a Proposal for Decision recommending that Petitioner's appeal be denied in part and dismissed in patt. Exceptions and replies were timely filed and considered. The central issue in this case is whether a principal serving under a term contract can be reassigned to an assistant principal position in the year after the principal' s contract has been renewed. By statute, such a reassignment must be in "same professional capacity." Petitioner contends that a bright line rule should be established so that a principal may only be reassigned to another principal position. For the Commissioner to so rule would require the Commissioner to overrule a string of cases going back to the Commissioner's earliest decisions under the Term Contract Nonrenewal Act. Further, such a ruling is not consistent with the intention of the Legislature which passed the statute in question. The Legislature did not create the purposed bright line rule, but instead used language that allows the Commissioner to 1 The Texas Association of School Board's Legal Assistance Fund filed a Bricfof Amicus Curiae. 043-RI0-1211 Appx. 1 H. Jenkins v. Crosby ISD TEA #: 000005 exercise his broad experience in education to determine just what is the "same professional capacity" in each individual case. Findings of Fact After due consideration of the record and matters officially noticed, it is concluded that the following Findings of Fact are supported by substantial evidence and are the Findings of Fact that best support Respondent's decision 2 • l. In March 2011, Petitioner and Respondent signed a contract that provides in relevant part: I. The Board hereby agrees to employ the Employee and the Employee agrees to serve the Board by engaging in duties as assigned by the Superintendent of the Crosby Independent School District for the school years 2011-2013 with beginning and ending dates as set by the Board. 3. It is understood and agreed by the parties to this Contract that the Superintendent of the Crosby Independent School District shall have the right to assign such duties to the Employee as the Superintendent shall deem proper, and since the Employee is not employed to fill a specific position or assignment, the Superintendent may assign or reassign the Employee to other or additional duties for which he or she is professionally certified or otherwise qualified to perform 2. Petitioner served as the principal of Charles R. Drew Intermediate School from 2003 to the end of the 20I0-2011 school year. 3. On June 28, 201 l, Petitioner was reassigned from the position of principal at Charles R. Drew Intermediate to the position of assistant principal at Crosby High School. 4. The local record does not indicate with specificity what Petitioner's duties as assistant principal at Crosby High School are. 'See 19 TFX. ADM JN. Corne § 157.1073(h); Bosworth v. East Central Independent School District. Docket No. 090-Rl-803 (Comm'r Educ. 2003). 043-RI0-1211 2 H. Jenkins v. Crosby ISD TEA #: 000006 Discussion Petitioner asserts that Respondent improperly reassigned her. Respondent denies this claim. In particular, Petitioner alleges that Respondent's actions violated Texas Education Code section I 1.202, which designates a principal as the instructional leader of a campus; section 11.20 l, which grants supervisory rights to superintendents, and section 2 l.206(b) which requires a school board that does not timely give notice of proposed nonrcncwal to hire the teacher in the same professional capacity for the following school year. Petitioner also alleges that Respondent violated I 9 TEX. ADMIN. CODE § 150.1021, which concerns the Commissioner's Recommended Appraisal process for administrators and policy DN(LOCAL). Respondent denies these claims. Rights Petitioner claims her reassignment violated her rights under Texas Education Code section 11.202, 19 TEX. ADM IN. CODE § 150.1021, and policy DN(LOCAL). Texas Education Code section I 1.202 is entitled "Principals." It provides that a principal is the instructional leader of a school. It lists seven duties of a principal. It requires school boards to adopt a policy for selecting principals. It gives a superintendent or designee final authority to assign teachers transferred due to enrollment shifts or program changes. Texas Education Code section 11.202 does not give Petitioner the right to a principal position. Likewise, 19 TEX. ADMIN. CODE§ 150.1021, and policy DN(LOCAL) do not give Petitioner a right to a principal position. However, if Petitioner were entitled to a principal position, she would be entitled to the rights provided by this statute and rule, but not local policy. Under Texas Education Code section 7.057(a)(2)(A), the Commissioner lacks jurisdiction over violations of school district policies. Reeves v. Aledo lndepende/1/ School District, Docket No. 106-Rl 0-496 (Comm'r Educ. 1999) TEX. EDUC. CODE § 11.20 l Texas Education Code 11.201 (d)(2) provides that superintendents have responsibility for most assignments. Petitioner contends that Respondent's 043-RI0-121 I 3 H. Jenkins v. Crosby ISD TEA #: 000007 superintendent reassigned her in an arbitrary and capricious manner and, hence, the reassignment is invalid. However, a superintendent does not violate Texas Education Code l l.20l(d) when a superintendent poorly exercises an authority granted by this section. The Commissioner has held that: The provisions in question do not require this responsibility to be exercised fairly or wisely. The provisions also do not prohibit a district from taking action against superintendents who act rashly or unfairly. S.R.S. v Groesbeck Independent School District, Docket No. 025-R5-105 (Comm'r Educ. 2006). Texas Education Code l l.20l(d) could only be violated by a refusal to exercise the statutory grant of authority. A board's decision may be overturned for being arbitrary and capricious. However, this is only the case when the board's decision itself is arbitrary and capricious. That a superintendent's action was arbitrary and capricious does not make a school board's decision arbitrary and capricious. If any action of a superintendent that was alleged to be was arbitrary and capricious could be appealed to the Commissioner, the Commissioner's docket would greatly expand. This would be contrary to the intention of the Legislature of limiting the Commissioner's jurisdiction, which can be seen by comparing Texas Education Code section 7.057 to the prior jurisdictional statute, Texas Education Code section 11.13. The Commissioner lacks jurisdiction under Texas Education Code section 7.057(a)(2)(A) over a claim Respondent's superintendent arbitrarily and capriciously reassigned her. Same Professional Capacity Petitioner contends that her reassignment is not proper because the positions of principal and assistant principal arc not in the same professional capacity. The phrase "same professional capacity" occurs twice in the Texas Education Code. In Texas Education Code section 21.206 provides: 043-RI0-1211 4 H. Jenkins v. Crosby ISD TEA #: 000008 (a) Not later than the 10th day before the last day of instruction in a school year, the board of trustees shall notify in writing each teacher whose contract is about to expire whether the board proposes to renew or not renew the contract. The notice must be delivered personally by hand delivery to the teacher on the campus at which the teacher is employed, except that if the teacher is not present on the campus on the date that hand delivery is attempted, the notice must be mailed by prepaid certified mail or delivered by express delivery service to the teacher's address of record with the district. Notice that is postmarked on or before the I 0th day before the last day of instruction is considered timely given under this subsection. (b) The board's failure to give the notice required by Subsection (a) within the time specified constitutes an election to employ the teacher in the same professional capacity for the following school year. (c) This section does not apply to a term contract with a superintendent. If a school district fails to timely give a teacher notice of proposed nonrenewal when the teacher's contract is about lo expire, the school district is required to employ the teacher in the "same professional capacity" for the following school year. A requirement to employ a teacher in the "same professional capacity" is triggered only when a contract is about to expire and timely notice of proposed nonrenewal is not given. The other time the phrase "same professional capacity" is used in the Texas Education Code is found al Texas Education Code section 21.212. This provision is very similar to Texas Education Code section 21.206. The major distinction is that it applies exclusively lo superintendents. In the present case, it would seem that no violation of Texas Education Code section 21.206 could occur because when Petitioner was reassigned her contract was not about to expire. Petitioner's contract will not expire until the end of the 2012-2013 school year. Petitioner's claim concerning Texas Education Code section 21.206 would not appear to be ripe. However, Petitioner points out that she was employed by Respondent as a principal just prior to her signing her 2011-2013 contract. Hence, during the 2011-2012 school year, Respondent was required to employ Petitioner in the same professional capacity as Petitioner held during the 2010-2011 school year. However, if 043-Rl0-1211 5 H. Jenkins v. Crosby ISD TEA #: 000009 Petitioner were to prevail on this claim, she would only be entitled to be employed in the same professional capacity for the 2011-2012 school year and not for the 2012-2013 school year. While this may be viewed as a result that does not favor teachers, some implications of multiple year term contracts favor teachers. As the Commissioner pointed out in Smithwick v. Castleberry Independent School District. Docket No. 085-R 1-0711 n. 2 (Comm 'r Educ. 2011 ), multiple year contracts can also benefit teachers. A multiple year contract may only be nonrcnewed when it is about to expire. A school district that wishes to end a multiple year contract at the end of the list contract year must proceed by the more difficult process of termination as opposed to nonrenewal. In such a case, the district is required to prove good cause and the case is heard by an independent hearing examiner. TEX. EDUC. CODE§§ 21.211, 21.251 et seq. Must Principals Remain Principals? Petitioner argues that the Commissioner should overturn precedent and conclude that ifa principal's contract is not nonrenewed, a school district is limited to reassigning a principal to another principal position for the next school year. Petitioner argues that the only position that is in the same professional capacity of a principal is the position of principal. Precedent should not be lightly overturned. Teachers and school districts base important decisions in reliance on Commissioner's Decisions. But the fundamental principle of statutory construction is to give effect to the intention of the Legislature. If the Commissioner's long standing interpretation of the statute is in conflict with the intention of the Legislature, the Commissioner's interpretation should change. The Term Contract Nonrenewal Act3 ("TCNA") was passed by the 67 111 Legislature in 198!'1• Term Contract Nonrenewal Act, 67' 11 Leg., R.S., ch. 765, 1981 Tex. 'Section I of SB 341 itself provided that "this act shall be known as "The Term Contract Nonrenewal Act." -t The TCNA became effective on August 31, 1981. However, because most contracts for the 1981-1982 school year had already been signed by that date, the TCNA really became operational for the 1982-1983 043-RI0-1211 6 H. Jenkins v. Crosby ISD TEA #: 000010 Gen Laws 2847. This law fundamentally changed teacher 5 contracts. Before the TCNA many districts hired teachers and administrators on one-year contracts. When the contract term expired, the district was not required to offer a contract for the new school year. Seifert v. Linglevi/le Jndep. Sch. Dist., 692 S.W.2d 461, 462 (Tex. 1985). Prior to the passage of the TCNA, school districts were not required to establish policy reasons for ending a contractual relationship, to give teachers the reasons why ending the contractual relationship was proposed, and to provide teachers with the opportunity for a hearing where the administration had the burden of proof to show that the teacher's contract should be nonrenewed. A key passage of the original TCNA, then numbered as Texas Education Code section 21.204, required a district that did not nonrenew a teacher's contract to hire the teacher for the next school year: Notice (a) In the event the board of trustees receives a recommendation for nonrenewal, the board after consideration of written evaluations required by Section 21.202 of this subchapter and the reasons for the recommendation, shall in its sole discretion, either reject the recommendation or shall give the teacher written notice of the proposed nonrenewal on or before April I proceeding the end of the employment fixed in the contract. (b) In the event offailure to give such notice of proposed nonrenewal within the time herein specified, the board shall thereby elect to employ such employee in the same professional capacity/or the succeeding school year. (c) The notice of proposed nonrenewal required in this section shall contain a statement of all the reasons for such proposed action. (Emphasis added). If a teacher's contract was not noticed for nonrencwal, the school board was not only required to hire the teacher for the next school year but also to employ the teacher in the same professional capacity for the next school year. The fundamental dispute in this case is over the meaning of the phrase "same professional capacity.·• school year. That makes the 1984-1985 school year, the first time the issue of whether a teacher was rehired in the same professional capacity could actually be raised. 5 From the beginning, the TCNA has used an expansive definition of"teacher" that includes many who arc not normally referred lo as teachers. 043-RI0-1211 7 H. Jenkins v. Crosby ISD TEA #: 000011 Legislative History The legislative history of the TCNA 6 sheds some light on the meaning of the phrase "same professional capacity." Senate Bill 341 created the TCNA. As originally filed. SB 341 was far more ambitious than the TCNA which became law. Under SB 341 as filed, a term or continuing contract could only be ended for 'just cause." The contract could only be ended aller the teacher was given written notice of deficiencies, assistance, and reasonable time for improvement. Evidence against a teacher could only be used if it was promptly brought to the teacher's attention. The hearing was to be held before an attorney selected by both parties. The hearing examiner's decision was final in that there was no appeal to the board or the Commissioner, but the hearing examiner's decision was appealablc to district court under the Administrative Procedures and Texas Register Act. More to the point of the current controversy, SB 341 as filed defined "demotion" in an expansive manner: an involuntary reduction of a teacher to a position of lesser rank, responsibility, or compensation, or the reassignment of a teacher outside the scope of the teacher's teaching certificate or major or minor field of study. Any loss of rank, responsibility, or compensation constituted a demotion. All of the procedures for ending a contract described in the preceding paragraph also applied when a teacher was proposed for demotion. Demotion could only occur after just cause was proved at a hearing. Demotion would apply to a change in professional capacity as well as many more situations. SB 341 made it through the Senate in substantially the same form as it was filed. In the House, SB 341 became the TCNA. The House Education Committee passed its substitute for SB 341 with the following language in section 21.204(b). "The relevant legislative history may be found at the website for the Legislative Reference Library of Texas. http://www.lrl.state.tx.us/index.cfm. 043-RI0-1211 8 H. Jenkins v. Crosby ISD TEA #: 000012 In the event of failure to give such notice of proposed nonrenewal within the time herein specified, the board of trustees shall thereby elect to employ such employee in the same capacity for the succeeding school year. The meaning of the phrase "same capacity" is not defined in the Committee Substitute. "Same capacity" could perhaps be interpreted broadly to mean in a particular case: the fifth grade English teacher at Davis Elementary School. It could perhaps be interpreted strictly to mean any classroom teaching position. When SB 341 was heard by the House on Second Reading an amendment was made to include the word "professional" between the words "same" and "capacity." No definition was added for the phrase "same professional capacity." The Commissioner has on numerous occasions ruled on the issue of whether a particular assignment was in the same professional capacity. There being no statutory delinition of ··same professional capacity," the Commissioner has described the meaning of the term. The seminal case as to the meaning of the phrase "same professional capacity" is Barich v. San Felipe-Del Rio Consolidated Independent School District, Docket No. 117-Rla-484 (Comm'r Educ. 1985): Petitioner argues that he did not receive an offer of employment in the "same professional capacity," because he was never offered the same position he had held during the 1982-83 school year; i.e., ROTC teacher. It would not be reasonable, however, to conclude that the legislature intended that every teacher who does not receive notice of his or her proposed nonrenewal by April 1 is entitled to be employed in the exact same position the following school year. Such a holding would require a school district to actually begin nonrenewal proceedings by April 1 against every teacher it might conceivably wish to assign to a different position the following year, or face a nonrenewal claim with any reassignment effected after April I. It is more reasonable to conclude that the legislature. by using the term "same pra la d:l!Ia u u:dp&! hy thti Supc:ria!mdtnt a( lbil Crosh;r' lndopcnd:sll School D:lctrlct for Ibo Jeboal yain wltb begilmbg lll1d. t:zMiins da1eJ u te: by the Tllo Board '8l"CCI lo pay tho Bmplaycir for tbcllCr'Vic=s nm.dcred m s:uuW sn1u)' aaxrd!os to Ebe c:arnpc:mzufcm plm Ddepted by Uu! 9mrd. Tbt Bmployai wuilinwW and isrw: thor Ct1ly tha Bet.rd b authodrnd to c:atahU1b JJ1 trl%lud rcgudla,gu.lary b of no oll'te md 1bll.ll 11DI be roll=! upon. any nprt.set1tailtn:11 nu.do by IUl)' 111ht:r pctMlll 3. I! ls un.dml®dand agreed by thepu'f!es 1n fhls0:111trad thltlbsSlljlCrintmd11111 of'lhc cm.by lcd:pcndart School Dfl#fct dall flsv6 lht risbl .. &al8" °""' dudet IO lb Employ" u Wll docm pmpa; llld- Ibo 11mjJJ"'° b nol oo>ployed IO llll • rpooillo pool.... at ""'l' aui8" amudgn lho Bmp!Ol"" IO clbcrcr aldlllmd dwla fbt1'hlcb he or w b pof=loallly =o!Jtcotly nt;!d fD nttsal.d n.ailladam oClb Dbtrfct whlch 1n1 In afrc:tndlil time. aay may hen:s&rbc allcu:d oracywhkb may bcadoplal dwiaa Iha cum uClblt Co:Q1nz1t. alb .. ......,...,,... by lhc D!Jtri•Ol"" "!""IJJ"11f '111"' 1a .Uaott 1c • """" or hh "' bar "'1101>d crlmlmt hli""Y .....t - · (NClltll) if raiu&td by lhc Dlslrlcl. TBA, "' SBl!C. N>y mbnp--to"'1•tlbefvn! tha lU1 day oflmuw:tl.on In !he scli.ool year by lhl1 Ccatn..c4 whethtlt lrlale:ldtto n:nn ornoit'DlleW Ilia CcmfmL Rt:mwal ..... wW bo Jn a.ccbnftnc& with tht Bnlld pol"°J a:i.d sum l1, ThaBaudhunotAdcptedanypallcy, ralr.,rc;p1lJllioo, fm tmura. No risfttortr::mim lsd'Clltd byth11 Coatnct. Tu1s Cantr&t shaU not gm1 or cn=ut m'J ccnbiu:tual er ether apcdclr:-t orCODtmaed a:c;iloyma:il arolaim or tmldemc:ot io tWplD)'mtct boyottd IM tam Cftbo Comca:t. tl. oun.a Iba Imm •flhb ""°"'"'Iba Employ.....,. b a - lbtsce.t ..... u .r....m...t by Iba !loud, fi....i.J =laocoy lhol "'!Uh>s• rcductiua la nr &r MY roaJoa natal mBolU'd poUcy lbC' thlt Omtnat. 1ba Soud mq r111plmll l!mplO)'l!.tl wffbow: psy lbt aood ctulf 11 dd.crmhtcd hy1hc Botrd lbra pc:rlDd not.ID attnd bnynnd thctlld or ywcown:d 1r& tblr CUllb'IUlf)lcudiurdbdmtp ctDmpkJ;yc= ar in llm orwmfmi.tfan. 13. h ltur.dentDod alld qtocd by Iha Board mid !he Eciplayu; tfw nflhb Caub'ac;t by lit; limp1nyee, all prevtous coatram cf the Boan! am mpmcded wt ltmtluaLodflnd m or no .&:tr= nnd cffc;:t. •"' 14. Tho Pluy lbr lb fut ttlOclb: or the ltnn of th!t Wll be piyabtc only upon ru:dpt from tbt: l!qllo)loo or 111! Olitrltil p-ope.rty. """""°' -.. am! """" """"""by "''Diltdot. /. 1,-. 'I'he E.mp{oytl'l W.Y rutsa 11 Ibo md orth11c:hr.o1 yw caYC"Cd by tbla Ccnlm::t b)' l1Ung 11 wrlttcn JeSlgoatioD wilb t!ia lq u the writt= niti&nadon l& 6lcd &y the 43i111 dt.y baJlm ifre 1ln:i *J ot tho fdl!trwas ICboal :ycu. A wrltt= \i:dgmtlo:i malled by pnpUd t:t:rd&d cir lO rhc PtmldcnJ aflb Boanl 11 the polt oM=i add:m: cl'th11 Dlsnicl fl filed 1U lM dma of malHag. lr da ..acmpu to r=lgn It any otha lfmCi the Bmplayee will lie roltucd liooi tttb Oxttmd Cl1ly wi1b Ibo Vtdttca. cam:t:Dt or tbo Bori Ir the !loud doc:a " " _ , . , la llllmae Ibo Bmoloyco mid tho Bm,loyco ""'"''"" ahon4col lb c..m.cr, lho D!Jlritsition of high school principal to thc position of mi