#010-R9-986
DOCKET NO. 010-R9-986
VERONICA L. ROSS and
DEANNA K. DEAN
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V.
FLOUR BLUFF INDEPENDENT
SCHOOL DISTRICT
DECISION OF THE COMMISSIONER
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BEFORE THE STATE
COMMISSIONER OF EDUCATION
THE STATE OF TEXAS
Statement of the Case
Petitioners, Veronica L. Ross and Deanna K. Dean, appeal the decisions of the Flour Bluff Independent School
District (FBISD) not to maintain Petitioner Ross on Level II of the career ladder and not to place Petitioner Dean on
Level II for the 1985-86 school year. The Hearing Officer appointed by the State Commissioner of Education for the purpose of issuing a Proposal for Decision is Margaret O.
Thompson. Petitioners are represented by Katherine K.
Moore, Attorney at Law, Houston, Texas. Respondent is represented by Allan E. Parker, Attorney at Law, Corpus
Christi, Texas.
Petitioners and Respondent have submitted cross motions for summary judgment. This decision will be based on those motions.
On June 30, 1987, the Hearing Officer issued a Proposal for Decision recommending to the State Commissioner of
Education that Respondent's Motion for Summary Judgment as to Petitioner Ross be GRANTED and Petitioner Ross' motion
DENIED. It was further recommended that Petitioner's Motion

for Summary Judgment as to Petitioner Dean be GRANTED and
Respondent motion DENIED, and that Petitioner Dean's case be
REMANDED to Respondent. Our records reflect that a copy of the Proposal for Decision was received by both parties.
Exceptions and Replies to the Proposal for Decision were timely filed.
Findings of Fact
After due consideration of the evidence and matters officially noticed, in my capacity as State Commissioner of
Education, I make the following Findings of Fact: l. Petitioner Ross was placed on Career Ladder Level
II for the 1984-85 school year by Respondent District.(Pet. for Rev. par. 4.)
2. Petitioner Ross was not maintained on Level II for the 1985-86 school year. (Pet. for Rev. Par.9.)
3. Respondent Board of Trustees approved stricter performance criteria for placement and maintenance on the career ladder for the 1985-86 school year. (Record on
Appeal, pp. 29, 37.)
4. Petitioner Ross did not meet the stricter performance criteria in order to be maintained on Level II.
(Tr. of Local Hearing, pp. 3-5.)
5. Petitioner Dean began teaching in FBISD in 1984-85.
(Pet. for Rev. par. 12.)
6. Prior to 1984-85, Petitioner Dean had not taught for three years, but before that, she had taught for several years in another district. (Pet. for Rev. par. 12, Tr. of
Local Hearing, pp. 22,23.)
7. Petitioner Dean did not submit evaluations from her former school district employer because of a misunderstanding of the requirements for career ladder eligibility. (Tr. of Local Record, pp. 23-25.)
8. Respondent's application form gave the following instructions regarding evaluations from former employers:
"...b. If the 1983-84 and/or 1984-85 years were with another district, evaluations from your former employer should be on file in the Superin- tendent's Office."
(Record on Appeal, p. 19, emphasis in original.)
9. Prior to receiving the application form, Petitioner
Dean had been informed by district administrators that evaluations from other districts would not be considered.
(Tr. of Local Hearing, pp. 23,25,29.)
10. Petitioner Dean was not considered for Level II placement because she did not "meet state requirements", namely, failing to provide prior evaluations. (Pet. for
Rev., Par. 14, Resp. Mot. Sum. Judgment, p. 5.)
11. Respondent placed three other teachers on Level II, after they appealed their nonplacement, due to an ambiguity in the instructions in the application form. (Tr. of Local
Hearing, p. 4.)
Discussion
There are no disputes concerning the facts in this case. Each Petitioner raises a different objection to her non-placement on Level II of the Career Ladder. Petitioner
Ross complains that she was not informed that standards for

maintenance on the Career Ladder would be different from the standards for placement the prior year. However, notice to teachers of criteria for placement on Level II is not required by statute or regulation. (See Davis v. Alief ISD,
Docket No. 067-R9-1186, Comm'r Educ., April, 1987). She further complains that she was given no chance to remediate her performance after the selection standards were set.
Petitioner misperceives the career ladder selection process. The teacher appraisal system was set up to evaluate all teachers according to a uniform set of criteria, and to assist teachers in improving their performances as well as for use in making career ladder assignments. If a district is short of funds for career ladder stipends, it must also determine what performance criteria for placement and maintenance on Level II will be used. The two systems are separate; a teacher evaluation stands on its own. It is not to be manipulated in order to attain the necessary score for career ladder placement or maintenance. Remediation is an essential aspect of the evaluation process, but remediation is not meant to be accomplished merely to attain a certain score.
Petitioner claims the District's stricter performance criteria were invalid because they were not adopted by the
Board of Trustees. However, Respondent properly adopted stricter performance criteria by approving the proposal of the career ladder committee at its Board of Trustees meeting on April 24, 1986. (See Finding of Fact No. 3). Because
Petitioner did not meet those stricter criteria, she could not maintain her position on Level II. Petitioner Ross has not shown that Respondent District acted arbitrarily or capriciously or in bad faith in failing to maintain her on
Level II of the Career Ladder.
Where both parties move for summary judgment and there are no genuine issues of material fact, the party carrying the burden of proof is entitled to judgment as a matter of law. McBean v. McBean, 371 S. W. 2d 930 (Tex. Civ. App.
1963). Respondent has carried its burden of proof and its
Motion for Summary Judgment as to Petitioner Ross should be
GRANTED. Petitioner Ross's Motion should be DENIED.
Concerning Petitioner Dean, she was assured during the
1984-85 school year by two district administrators that it would be useless to submit prior evaluations from another district because she had not taught the prior three years.
(Tr. of Local Hearing, pp. 23,25.) Apparently the policy changed from the 1985-86 placement year, but the only notice of the change in requirement to be considered for Level II is found in the career ladder application form cited in
Finding of Fact No. 8. In Petitioner's situation of not having taught in 1983-84 or 1984-85, the only prior years which were mentioned in the instructions, it was reasonable for her to conclude that evaluations from earlier years would not be needed nor considered. In addition, the instruction was ambiguous also because it used the term
"should" rather than the mandatory term "must."

When the Board of Trustees heard a similar appeal from teachers who misunderstood instructions as to the deadline for submission of higher education credit documentation, the
Board granted their appeal, allowing late submissions. The instruction in that situation was similarly ambiguous, containing the same term "should" and not a mandatory instruction.
Respondent failed to take into consideration these relevant facts in denying Petitioner Dean's appeal. It was arbitrary and capricious for Respondent not to allow
Petitioner Dean to submit her prior evaluations once the instructions were clarified. Petitioner Dean has carried her burden of proof and her Motion for Summary Judgment should be GRANTED and Respondent's Motion for Summary
Judgment as to Petitioner Dean should be DENIED. The matter of Petitioner Dean's career ladder placement should be remanded to Respondent District for reconsideration of her application for Level II placement including consideration of the prior evaluation or evaluations from other districts which may be submitted by Petitioner Dean.
Replies to Exceptions
Petitioner Ross argues in her Exceptions to the
Proposal for Decision that Respondent could not apply specific performance criteria in making a career ladder decision concerning Petitioner because at the time
Petitioner's teaching contract was signed, no stricter performance criteria had been adopted by the district.
Petitioner further states that ". . . the parties to a contract are bound only to those terms and conditions as are evidenced by the parties' writing and which are reasonably foreseen by said parties at the time of the making of such contract." Exactly so; it was reasonably forseeable that
Respondent might adopt specific performance criteria when that avenue was open to Respondent as part of the statutory scheme, namely +16.057 of the Texas Education Code (Vernon's
1986).
Concerning Petitioner Dean, Respondent seeks to place all blame for failing to clear up the ambiguity in the career ladder application form upon Petitioner. However, the wording on the form (see Finding of Fact No. 8) did not sufficiently alert Petitioner to place upon her the burden of seeking clarification.
Conclusions of Law
After due consideration of the record, matters officially noticed, and the foregoing Findings of Fact, in my capacity as State Commissioner of Education, I make the following Conclusions of Law:
1. Respondent's decision not to maintain Petitioner
Ross on career ladder level two was not arbitrary and capricious nor made in bad faith.
2. Respondent's Motion for Summary Judgment as to
Petitioner Ross should be GRANTED and Petitioner's motion
DENIED.
3. Respondent's decision that Petitioner Dean was not

eligible for career ladder level two under state requirements was unreasonable and arbitrary and capricious.
4. Petitioner's Motion for Summary Judgment as to
Petitioner Dean should be GRANTED and Respondent's motion
DENIED.
5. Petitioner Dean's case should be remanded to
Respondent for the purpose of reconsidering her application for level two placement, including consideration of prior evaluations from other districts submitted by Petitioner
Dean.
O R D E R
After due consideration of the record, matters officially noticed, and the foregoing Findings of Fact and
Conclusions of Law, in my capacity as State Commissioner of
Education, it is hereby
ORDERED that Respondent's Motion for Summary Judgment as to Petitioner Ross be GRANTED and Petitioner's motion
DENIED; and,
IT IS FURTHER ORDERED that Petitioner's Motion for
Summary Judgment as to Petitioner Dean be GRANTED and
Respondent's motion DENIED; and,
IT IS FURTHER ORDERED that Petitioner Dean's case be, and is hereby, REMANDED to Respondent for the purpose of reconsidering her application for level two placement, including consideration of prior evaluations from other districts submitted by Petitioner Dean.
SIGNED AND ENTERED this _____ day of ________________,
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W. N. KIRBY
COMMISSIONER OF EDUCATION