#257-R1-689, et al.
--
DOCKET NOs. 257-R1-689
258-R1-689
259-R1-689
260-R1-689
261-R1-689
262-R1-689
HENRY CRAWFORD; RONALD GRAY; +
GEORGE HOWLE; SUZANNE
+
PHILLIPS; GLORIA ROBERTS;
+
PAULINE WEBB
V.
AMARILLO INDEPENDENT
SCHOOL DISTRICT
+
+
BEFORE THE STATE
+
+
+
+
+
+
COMMISSIONER OF EDUCATION
THE STATE OF TEXAS
DECISION OF THE COMMISSIONER
Statement of the Case
Petitioners herein appeal the decision of the
Respondent district to nonrenew their employment contracts
for the 1989-90 school year because of financial exigency
and a change in programs. Although separate appeals were
initially filed, they are now consolidated and the
discussion herein addresses the appeals of the six
Petitioners.
Maggie H. Montelongo is the Hearing Officer appointed
by the State Commissioner of Education to preside over this
action. Petitioners are represented by Mr. Daniel A. Ortiz,
Attorney at Law from Arlington, Texas. Respondent is
represented by Mr. Don Dean, Attorney at Law from Amarillo,
Texas.
On May 2, 1991, Hearing Officer Montelongo recommended
that Petitioners' appeal be granted. Respondent filed
exceptions on June 3, 1991, and Petitioner filed a response
on June 18, 1991.
Findings of Fact
After due consideration of the evidence and matters
officially noticed, in my capacity as Interim Commissioner
of Eduction, I make the following Findings of Fact:
1. All Petitioners herein were employees of Respondent
district during the 1988-89 school year. Respondent decided
on April 26, 1989, after hearing on the matter, to nonrenew
the employment contracts of Petitioners for the following
school year. (Admitted; Record).
2. Petitioners Howle and Roberts do not question the
issue of financial exigency. (TR 199, Roberts' Pet. Rev.).
3. Although Petitioner Howle had been appraised twice
by the time he was notified of his proposed nonrenewal and
had had a summative conference with Ms. Gleghorn, his
appraiser, prior to his hearing before the Board of
Trustees, Respondent did not consider such evaluations prior
to deciding to nonrenew Petitioner Howle's employment
contract for the 1989-90 year. Respondent considered only
the 1987-88 appraisal record for Petitioner Howle. (TR
134-35, 193, 195, 202; Howle Ex. 9).
4. Respondent Board of Trustees considered the 1987-88
evaluation for Petitioner Roberts. Respondent did not
consider any written evaluation of Roberts for the 1988-89
school year prior to nonrenewing her employment for the
1989-90 school year despite the fact that Roberts' appraisal
had been completed, including a summative conference, and
only lacked filling out a final form. (TR 134-35, 219,
223-25, 246, 262; Robert's Ex. 9).
5. Petitioner Webb was notified of her proposed
nonrenewal by letter dated March 30, 1989. (TR 271; Webb
Ex. 10).
6. At the time of notification of her proposed
nonrenewal, and prior to hearing before the Board of
Trustees, Petitioner Webb had received both observations,
but had not had a summative conference, and she had also
received her career ladder placement. Respondent did
consider her 1987-88 appraisal record and did not consider
her 1988-89 evaluations prior to nonrenewing her contract of
employment for the 1989-90 school year. Webb's appraisal
score for the 1988-89 school year was higher than her
1987-88 score. (TR 134-35, 273, 286, 290; Webb Ex. 9, Webb
Ex. T-2).
7. By letter dated March 30, 1989, Petitioner Crawford
was notified of his proposed nonrenewal. (Crawford Ex. 10;
TR 312).
8. Respondent did consider Petitioner Crawford's
1987-88 appraisal record and did not consider his 1988-89
evaluations prior to nonrenewing his contract of employment
for the 1989-90 school year. At the time of the local
hearing, Petitioner Crawford had received two observations
in connection with his primary appraisal, was lacking a
second observation for his secondary appraisal and had not
received a summative conference. (Crawford Ex. 9; TR 314,
325).
9. Petitioner Gray was notified of his proposed
nonrenewal by letter dated March 30, 1989. (Gray Ex. 10; TR
344).
10. Respondent considered Petitioner Gray's 1987-88
appraisal record and did not consider his 1988-89
evaluations prior to nonrenewing his contract of employment
for the 1989-90 school year. At the time of the local
hearing, Petitioner Gray had received two evaluations, had
received career ladder placement and was only lacking a
summative conference. (TR 342, 351; Gray Ex. 9).
11. Petitioner Phillips was notified of her proposed
nonrenewal by letter dated March 30, 1989. (TR 373;
Phillips Ex. 10).
12. Respondent considered Petitioner Phillips' 1987-88
appraisal record and did not consider her 1988-89
evaluations prior to nonrenewing her contract of employment
for the 1989-90 school year. Petitioner Phillips' 1987-88
appraisal score was much lower than either her 1986-87 or
1988-89 scores. At the time of the local hearing,
Petitioner Phillips had received an observation from Mr.
Carhill, the principal at Amarillo High School. (TR 134-5,
415, 437, 461, 482; Phillips Ex. T-5, 8).
13. Respondent's local policy DOAD requires the Board
to consider written evaluations required by law and tracks
the language of Tex. Educ. Code Ann. +21.204. (Ex. 5).
14. Respondent's local policy DNA calls for annual
written evaluations that are to be considered before an
employee is nonrenewed. More than one appraisal is
conducted on each teacher and then reduced to a summative
document at the end of the school year. (Ex. T-1; TR 223,
225, 315).
15. Respondent admits completed paperwork on
appraisals can be sent to the central office prior to March
30th for consideration prior to nonrenewal decisions. (TR
318).
16. By order of Hearing Officer Montelongo, dated
November 16, 1989, Cause No. 257-R1-689 was consolidated
with Cause Nos. 258-R1-689, 259-R1-689, 260-R1-689,
261-R1-689 and 262-R1-689. (Record).
Discussion
The resolution of the issue of whether Respondent was
required either by local policy or Tex. Educ. Code Ann.
++21.202 and 21.204 to consider completed, current year
evaluations of the Petitioners prior to deciding on their
nonrenewal of employment is dispositive of these appeals.
The Commissioner of Education has already decided and
decreed that Tex. Educ. Code Ann. ++21.204 and 21.202
requires a board to consider current year written
evaluations. Kelly v. Blooming Grove ISD, No. 232-R1-589
(Comm'r Dec., 1/31/91). Respondent in this case adopted
local policy that tracked the statutory language; thus, it
was obligated to evaluate current written evaluations of
Petitioners prior to nonrenewing them pursuant to their
local policy and statutory dictates. It is undisputed that
Respondent did not consider current evaluations of
Petitioners prior to nonrenewal decisions. Thus, Respondent
did not comply with either its local policy or statutory
requirements and Petitioners' appeals are meritorious.
In its defense, Respondent argues that it believes that
annual evaluations for the period in question were
irrelevant if the entire program was being abolished and the
individual's performance was not being questioned, such as
in the case of George Howle. The condition of financial
exigency within a district, however, does not preclude the
requirements and procedural protections afforded by the Term
Contract Nonrenewal Act to teachers who are faced with
proposed nonrenewal of employment contracts. Simply because
a district is faced with a reduction in force and
performance is not a consideration does not mean that such a
district can ignore statutory dictates. Respondent must
still comply with TCNA procedural safeguards.
Respondent also argues that it did not consider 1988-89
evaluations on any of the individuals in question because
the appraisal record cycle would not end until June 15th of
the school year. This is a date established by the district
in its local policy and is a date that can be changed.
Respondent's problem arose because Respondent has chosen to
rely on the same evaluation document for nonrenewal purposes
and for other purposes such as career ladder and
terminations. However, districts should know that, although
Tex. Educ. Code Ann. +21.202 requires a written annual
evaluation, there is no requirement that such evaluation be
the TTAS appraisal cycle. A district can provide through
local policy for the formulation of a written evaluation
assessing the performance of a teacher within a classroom
specifically for nonrenewal purposes. This particular
evaluation is to be completed prior to nonrenewal.
Unfortunately for Respondent, it's local policy set the
deadline for annual evaluations at June 15th, beyond the
nonrenewal deadlines. By its own actions, Respondent placed
upon itself a burden that would keep the district from
complying with the statutory dictates.
Respondent admits that it could have completed the
paperwork it had available prior to March 30th, before a
decision on nonrenewal was issued by the Board. It should
have done so.
Tex. Educ. Code Ann. +21.202 insists upon an annual
written evaluation for each teacher in its employ and
further requires the consideration of said annual evaluation
prior to nonrenewal of the term contract. Petitioners were
entitled to an annual evaluation for the 1988-89 school year
for which they were employed, and were also entitled to have
such evaluation considered before their term contracts were
nonrenewed for the following year. The record is clear that
Respondent failed to afford Petitioners this consideration.
Thus, it is determined that Respondent's action was
arbitrary and capricious and constitutes a violation of
statutory mandates. Accordingly, Petitioners' appeals are
granted.
In its exceptions, Respondent contends that Kelly v.
Blooming Grove ISD is inapplicable because performance was
irrelevant in this instance. The issue is not performance.
The issue is whether or not TCNA requirements were followed
as mandated. They were not; consequently, the nonrenewals
are unlawful. Respondent's exceptions are specifically
denied.
Conclusions of Law
After due consideration of the record, matters
officially noticed, and the foregoing Findings of Fact, in
my capacity as Interim Commissioner of Education, I make the
following Conclusions of Law:
1. Tex. Educ. Code Ann. +21.204 and +21.202 require the
consideration of current year written evaluations prior to
any decision by a board of trustees to nonrenew a term
contract of any teacher.
2. Respondent's failure to complete an annual
evaluation for Petitioners during the 1988-89 school year
prior to the decision to nonrenew their term contracts of
employment violated Respondent's local policy DNA. Such
violation of local policy was arbitrary and capricious.
3. Respondent's conduct in failing to consider a
completed current year written evaluation of Petitioners
violated Tex. Educ. Code Ann. ++21.202 and 21.204.
4. Respondent's decisions in nonrenewing the term
contracts of Petitioners without considering current written
evaluations was arbitrary and capricious and in violation of
Tex. Educ. Code Ann. +21.202.
5. Petitioners' appeals are granted.
6. Petitioners Crawford, Gray, Howle, Phillips,
Roberts and Webb are entitled to reinstatement in the same
professional capacity for the succeeding school year.
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 Interim Commissioner
of Education, it is hereby
ORDERED that Petitioners' appeal be, and is hereby,
GRANTED.
IT IS FURTHER ORDERED that Petitioners Crawford, Gray,
Howle, Phillips, Roberts and Webb be reinstated by
Respondent in the same professional capacity for the
succeeding school.
SIGNED AND ISSUED this ______ day of ________________,
1991.
______________________________
THOMAS E. ANDERSON, JR.
INTERIM COMMISSIONER OF
EDUCATION