#088-PS-1190
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DOCKET NO. 088-PS-1190
JOAN B. GOLTZ DBA LEARNING
TECHNIQUES
V.
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BEFORE THE STATE
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COMMISSIONER OF EDUCATION
TEXAS EDUCATION AGENCY,
DIVISION OF PROPRIETARY
SCHOOLS AND VETERANS
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EDUCATION
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THE STATE OF TEXAS
DECISION OF THE COMMISSIONER
Statement of the Case
Pursuant to Tex. Educ. Code +32.41, Petitioner Joan B.
Goltz dba Learning Techniques appeals from the Notice of
Denial of Certificate of Approval issued by the Texas
Education Agency, Division of Proprietary Schools and
Veterans Education.
Joan Howard Allen is the Hearing Officer appointed by
the State Commissioner of Education. Petitioner is
represented by Jay M. Goltz, Attorney at Law, Dallas, Texas.
Respondent is represented by Duncan R. Fox, Attorney at Law,
Austin, Texas.
The parties submitted the matter on cross motions for
summary judgment.
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 waived its statutory right to a hearing
within thirty days and a final decision within ten days.
(Record).
2.
Respondent received Petitioner's Application for
Renewal of Certificate of Approval on July 16, 1990,
intending to renew the existing Certificate of Approval
which would expire on August 22, 1990. (Pet. MSJ, Ex. 1).
The Certificate of Approval Bond (DPSVE-006) listed "John B.
Goltz dba Learning Techniques" and was signed by "Joan B.
Goltz, dba Learning Techniques" as principal. Ms. Goltz
signed the bond in her capacity as director. (Pet. MSJ, Ex.
2).
3.
By notice dated August 2, 1990, Petitioner was
notified that the bond submitted was unacceptable because
the principal listed was incorrect. A rider changing the
principal to "Joan B. Goltz dba Learning Techniques" was
requested. At the same time, in a separate document,
Petitioner was notified of the requirement that a late fee
of $99.00 be paid. (Pet. MSJ, Ex. 3).
4.
Petitioner provided the rider correcting the name
of the principal on August 13, 1990. Petitioner declined to
pay the late fee, asserting that the fee is for the tardy
filing of an application for renewal and not for corrections
to a timely filed application. (Pet. MSJ, Ex. 4).
5.
Respondent informed Petitioner by letter dated
October 11, 1990 that a complete application includes a
properly executed school bond. Respondent asserted that the
original bond was not properly executed and therefore, the
application was not complete. (Pet. MSJ, Ex. 5).
6.
As a minimum requirement for a bond to be
"properly executed," Respondent requires that the bond bear
the correct name of the principal without error, be dated,
contain signatures of the surety and the principal, and be
sealed by the surety. (Resp. MSJ, Ex. 1, aff. Dee Bednar).
Discussion
The issue on the instant appeal is whether a late
filing fee is required of Petitioner because a complete
Application for Renewal of Certificate of Approval was not
filed more than thirty days prior to the expiration of the
Certificate of Approval.
Tex. Educ. Code +32.34(d) requires that
"at least thirty (30) days prior to the expiration
of a certificate of approval, the school shall
forward to the administrator an application for
renewal...If a school fails to file a complete
application for renewal at least thirty (30) days
before the expiration date of the certificate of
approval, the school, as a condition of renewal,
must pay, in addition to the annual renewal fee, a
late renewal fee in an amount established by the
State Board of Education."
The late renewal fee has been set at 12% of the annual
renewal fee. 19 T.A.C. +69.128(c).
A complete renewal application is includes
executed school bond." 19 T.A.C. +69.125(c)(3),
added.
Petitioner contends that the original bond
executed, because the typographical error in the
a "properly
emphasis
was properly
first
sentence of the bond does not relate to the signing, sealing
or delivering of the bond. Petitioner contends that the
late filing penalty was established to assist in providing
that the agency would have sufficient time to review renewal
applications prior to the expiration of the current
certificate. On the other hand, Respondent asserts that a
properly executed school bond must be dated, bear the
correct name of the principal and surety, be signed by the
principal and the surety and be free of typographical
errors. Further, Respondent asserts that this
interpretation is long-standing, reasonable and necessary in
order for the agency to timely process the substantial
number of bonds filed.
Tex. Educ. Code +32.38 sets forth the requirements for a
bond. Subsection (a) provides that the obligation of the
bond shall be that neither a provision of the Texas
Proprietary School Act, Tex. Educ. Code Chap. 32, nor any
rule or regulation adopted pursuant thereto shall be
violated by the school or its officers, agents, or
employees. The bond shall be to the State to be used only
for the payment of a tuition refund due to a student or
potential student. Clearly, the purpose of the bond is to
ensure that students receive the education they bargained
for.
Section 32.38(a) also provides that "(t)he bond shall
be filed with the administrator and shall be in such a form
as approved by the administrator." (Emphasis added). In
this case, the form of the bond was not approved by the
administrator. The agency is given significant authority to
approve bond forms. An error identifying the principal is
one which can potentially affect the abilty to collect or
the ease of collecting on a bond. Therefore, Respondent's
requirements for a properly executed bond are reasonable.
Petitioner failed to submit a complete renewal
application thirty days prior to the expiration of the
existing certificate. Petitioner is therefore required to
pay the late filing fee as set forth under 19 T.A.C.
+69.128(c).
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 original bond submitted by Petitioner which
contained a misspelling of Petitioner's first name in the
introductory paragraph did not constitute a properly
executed bond as required by 19 T.A.C. +69.125(c)(3).
2.
Petitioner failed to file a complete application
thirty (30) days prior to the expiration of the existing
certificate of approval to operate a proprietary school due
to the unapproved bond. Tex. Educ. Code ++32.34(d),
32.38(a), 19 T.A.C. +69.125(c)(3).
3.
Petitioner is required to pay a fee for late
filing of the renewal application. Tex. Educ. Code
+32.34(d), 19 T.A.C. +69.128(c).
4.
Petitioner's appeal should be denied.
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 as a condition of receiving a certificate
of approval, Petitioner shall pay a late fee in the amount
of twelve percent (12%) of the annual renewal fee for the
proprietary school; and
FURTHER ORDERED that Petitioner's appeal be, and is
hereby, DENIED.
SIGNED AND ISSUED this ______ day of ________________,
1990.
______________________________
W. N. KIRBY
COMMISSIONER OF EDUCATION