#210-R2-890
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DOCKET NO. 210-R2-890
KENNETH PATTERSON
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V.
ALBANY INDEPENDENT
SCHOOL DISTRICT
BEFORE THE STATE
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COMMISSIONER OF EDUCATION
THE STATE OF TEXAS
DECISION OF THE COMMISSIONER
Statement of the Case
Petitioner Kenneth Patterson appeals the decision of
the Albany Independent School District board of trustees,
Respondent, to terminate his employment.
A hearing was held on February 6, 1991 before Joan
Howard Allen, the Hearing Officer appointed by the State
Commissioner of Education. Petitioner is represented by
Jefferson K. Brim, III, Attorney at Law, Austin, Texas.
Respondent is represented by Gustavo L. Acevedo, Jr.,
Attorney at Law, Austin, Texas.
On July 9, 1991, the Hearing Officer issued a Proposal
for Decision recommending that Petitioner's appeal be
granted. Exceptions and replies were timely filed and
considered. Exceptions are hereby overruled.
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:
1.
Petitioner Kenneth Patterson was employed as a
junior high school teacher under a one year term contract by
Respondent Albany ISD. (Joint Stip.; Pet. Ex. 7).
Petitioner had been employed by Respondent for 15 years
without major incident. (T. 52, 103).
2.
In April of 1991, Petitioner directed a thirteen
year old student, Dale D., to retrieve a computer disk from
Petitioner's desk to replace a nonfunctioning disk. Dale
brought back an incorrect disk. Petitioner believed that
Dale had knowingly obtained the wrong disk on purpose and
took Dale outside the classroom. (T. 75-77, 91, 94, 107,
108). Petitioner was upset and angry. (T. 81, 98,
125-126).
3.
During the three to five minute confrontation in
the hall, Petitioner used his hand to put Dale against the
wall. (T. 77, 100). Petitioner placed one hand on either
side of Dale's head and moved his face within a foot of
Dale's face. (T. 79, 99, 101). Petitioner told Dale, "If
you got me fired, I could kill you." He also stated, "If
you got my goat, I could crush your head through the wall."
(T. 78, 80, 97, 113, 114, 115, 136). Petitioner also
threatened to "bust" Dale, meaning to administer a paddling.
(T. 78, 110, 112). At the conclusion of the confrontation,
Petitioner repeatedly told Dale that the student was not
going to get his goat. (T. 115). Petitioner used this
expression throughout the confrontation to indicate that he
was not threatening Dale. (T. 113).
4.
Dale was scared. (T. 80-81, 97). He told a
friend during the school day about the incident. (T. 86).
Later, he told his bus driver. (T. 87). Dale did not tell
anyone that he was hurt. (T. 86, 87). Dale was not afraid
that Petitioner would kill him. (T. 88).
5.
Petitioner admits that his behavior was
inappropriate and that he felt that he had gone too far.
(T. 115, 116).
6.
On June 1, 1990, Respondent sent Petitioner a
notice of proposed termination informing him of the reasons
for his proposed termination. These reasons were:
1.
inappropriate application of discipline to a
student;
2.
violation of the district's policy regarding
the administration of corporal punishment;
and
3.
violation of the district's standards of
unprofessional conduct.
(Joint Stip.; Pet. Ex. 9).
7.
Following a request for hearing and the providing
of additional explanation for the proposed termination,
Petitioner was given a full hearing before the board of
trustees. At the conclusion of the hearing, Respondent
voted unanimously to terminate Petitioner's employment with
the district. (Joint Stip.).
8.
Respondent has adopted the Code of Ethics and
Professional Practices as a part of Policy DH(E). These
standards require that the educator deal considerately and
justly with each student and shall seek to resolve problems
including discipline according to law and school board
policy and further, that the educator shall make reasonable
effort to protect the student from conditions detrimental to
learning, physical health, mental health or safety. (Pet.
Ex. 3).
Discussion
The ultimate issue presented is whether Petitioner has
demonstrated that Respondent did not have good cause to
terminate his employment with the district. Specifically,
Petitioner asserts that the facts set forth in Findings of
Fact Nos. 2 and 3, as a one time occurrence, do not
constitute good cause for termination.
Prior decisions of the Commissioner have examined the
harm to a student to determine if a single instance of
improper behavior is sufficient to terminate employment.
The test is set forth in Whalen v. Rocksprings ISD, No.
065-R1-284 (Comm'r Educ. January 1985):
When a teacher engages in an activity that is
potentially harmful to...students' physical or
emotional well-being, a school district must be
allowed to terminate the teacher's employment
rather than risk the possibility that the teacher
might engage in further similar conduct. That is
not to say that a teacher may be terminated for
participating in any harmful activity no matter
how minor; the harm must be significant.
The student in question, Dale, while afraid, was not so
harmed that he immediately reported the incident to district
officials or to his parents. His testimony indicated that
he off-handedly mentioned the incident to a friend and to a
bus driver.
Here, Petitioner is a fifteen year veteran of the
Albany school system. He has served without major incident
for the entire period. From both his account and that of
the student, Petitioner was upset and frustrated because he
was not getting through to the student. Petitioner
recognizes that his choice of words and his approach were
excessive.
Given that this isolated incident is acknowledged by
Petitioner and given that the student was not in any
physical danger, and not significantly affected by the
action, it is concluded that Findings of Fact Nos. 2 and 3,
in and of themselves, do not constitute good cause for
termination.
Petitioner's appeal should be granted and Petitioner
should be reinstated.
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.
The Commissioner has jurisdiction of this appeal
pursuant to Tex. Educ. Code +11.13.
2.
Respondent's Motion for Substantial Evidence
Review is denied.
3.
Respondent did not have good cause to terminate
Petitioner's employment for the single isolated incident of
threatening a student.
4.
Petitioner's appeal should be granted.
5.
Petitioner should be reinstated to his employment.
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 Petitioner's appeal be, and is hereby,
GRANTED, and Petitioner be reinstated to his employment.
SIGNED AND ISSUED this ______ day of ________________,
1991.
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LIONEL R. MENO
COMMISSIONER OF EDUCATION