DOCKET NO. 111-R1-598
ANITA J. KOPYCINSKI
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V.
FORT BEND
INDEPENDENT SCHOOL DISTRICT §
BEFORE THE
COMMISSIONER OF EDUCATION
THE STATE OF TEXAS
DECISION OF THE COMMISSIONER
Statement of the Case
Petitioner, Anita J. Kopycinski, appeals Respondent’s, Fort Bend Independent School
District’s, decision to nonrenew her contract.
Christopher Maska was the Administrative Law Judge appointed by the Commissioner of
Education to preside over this cause. Petitioner was represented by Joyce A. Keating, Attorney
at Law, Houston, Texas. Respondent was represented by Richard A. Morris, Attorney at Law,
Houston, Texas.
Findings
It is concluded that the following findings are supported by substantial evidence.
1.
Respondent, Fort Bend Independent School District employed Petitioner, Anita
J. Kopycinski under a term contract for the 1997-1998 school year.
2.
Petitioner was a home economics teacher at Austin High School from the 19951996 school year until the 1997-1998 school year.
3.
In September 1997, Petitioner’s evaluator observed Petitioner’s class and
pointed out a number of deficiencies.
4.
In November 1997, Petitioner’s evaluator gave Petitioner poor marks in most
categories on her evaluation.
5.
Petitioner was placed on a growth plan on November 21, 1997.
6.
While at first Petitioner took the growth plan seriously, Petitioner soon began to
ignore significant portions of the growth plan.
7.
Petitioner failed to satisfactorily complete the growth plan.
8.
Petitioner was not adversely treated because of her age.
9.
Respondent offered Petitioner’s counsel the opportunity to view videotapes of
Petitioner’s classroom performance. Petitioner’s experts were not allowed to
view the tapes. Petitioner was not allowed to make copies of the tapes.
10.
A videotape of an excellent home economics teacher, made to assist Petitioner,
was destroyed by the teacher who made the tape. Respondent was not involved
in any way in the decision to destroy the tape.
11.
Respondent listed the following reasons for proposed nonrenewal in its notice
letter to Petitioner: “1) Deficiencies as pointed out in observation reports,
appraisals or evaluations, supplemental memoranda, or other communications; 2)
Failure to fulfill duties and responsibilities; 3) Incompetency or inefficiency in
the performance of required assigned duties, 4) Inability to maintain discipline in
the classroom or at assigned school-related functions, and 5) Failure to maintain
an effective working relationship, or maintain good rapport, with parents, the
community or colleagues.
12.
Petitioner received a meaningful and fair hearing.
Discussion
Petitioner contends that Respondent’s decision to nonrenew her contract should be
overturned for a number of alleged procedural violations. Petitioner asserts that she was not
provided with evidence and her experts were not allowed to view evidence. Petitioner alleges
that the district failed to take proper steps to protect evidence. Petitioner argues that she was not
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allowed to present evidence of age discrimination. Petitioner objects that she was not able to
compel witnesses to testify.
Petitioner argues that adequate discovery was not allowed.
Petitioner contends that notice of the allegations was not sufficient. Petitioner alleges that the
hearing was not conducted in a meaningful manner. Petitioner contends that she established that
the real reason for her nonrenewal was discrimination based on age.
Providing Evidence
Videotapes of Petitioner conducting three classes were offered into evidence in this case.
Petitioner did not object to their admission. While Petitioner’s counsel was allowed to view
these tapes, she was not allowed to copy these tapes. Petitioner’s experts were not allowed to
view these tapes before the hearing. Respondent’s witnesses testified about what they saw on the
tapes. Petitioner contends that her experts were denied a fair opportunity to view the tapes.
Petitioner should have been allowed to make copies of these tapes or her experts should have
been allowed to view the tape. While the Texas Education Code is not very specific about the
type of prehearing procedures to be provided when a board of trustees conducts its own hearing
on a nonrenewal, they must be fair. Denying a teacher full access to evidence when it is to be
used against her is unfair. The Commissioner may reverse a decision of a board that is arbitrary
or capricious if the error was likely to lead to an erroneous decision. Texas Education Code
§21.303. However, error must be preserved before the board of trustees. As to this allegation,
Petitioner failed to preserve error by directly asking the board to rule on the decision by the
administration not to provide copies of the videos. The board could have granted a continuance
so that Petitioner’s experts could review the tape. The fact that Petitioner made her objection to
the administration is not sufficient. The board, not the administration, makes the decision to end
a teacher’s contract. Any errors in prehearing procedure must be brought to the attention of the
board and a ruling must be obtained on the alleged errors or they are waived.
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Respondent contends that Petitioner was not entitled to copies of the videotapes citing
Roberts v. Houston Independent School District, 788 S.W.2d 107 (Tex. App.-Houston[1st Dist.]
1990, writ denied). In Roberts, the teacher contended that she did not have notice of an edited
tape that was presented to the board. The court found that Petitioner had an opportunity to view
the original tapes and chose not to do so. The court found that no violation had occurred. The
court ruled only on the issue of whether the teacher had proper notice of evidence. The court did
not rule whether the teacher should have been allowed to copy the videotapes. The court did not
rule that a teacher’s experts can be denied access to evidence.
Preserving Evidence
When Petitioner was placed on a growth plan, a videotape of a high performing home
economics teacher was made as a learning aid for Petitioner. This tape was made of a teacher
who testified at the hearing in Petitioner’s favor. After Petitioner viewed the tape, the tape was
returned to the teacher. The teacher then decided to destroy the tape. The administration in no
way encouraged the destruction of the tape. The district cannot be faulted for the destruction of
the tape. But even if the district was at fault, this tape is not the type of evidence that is likely to
have changed the board’s decision.
Presentation of Age Discrimination Evidence
The Commissioner does not have jurisdiction under the Age Discrimination in
Employment Act, 29 U.S.C. §621 et seq., in a Chapter 21 case. However, a teacher may only be
nonrenewed for the reasons specified in board policy. Respondent has not adopted age as a
reason for nonrenewal. This is hardly surprising, as such a policy would violate the Age
Discrimination in Employment Act. Hence, it was legitimate for Petitioner to put on evidence of
age discrimination1.
Petitioner was, in fact, allowed to put in some evidence of age
1
This holding does not conflict with Kidd v. Union Independent School District, Docket No. 300-R1-693
(Comm’r Educ. 1994). In Kidd, the Commissioner held that he lacked jurisdiction over an age
discrimination claim. For the Commissioner to determine whether a teacher was nonrenewed in accordance
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discrimination. On the occasions when evidence relevant to age discrimination was not allowed,
Petitioner failed to make an offer of proof to preserve error. Without an offer of proof, it cannot
be determined whether the error was harmful.
Compelling Witnesses
Petitioner objects that she was not allowed to compel witnesses who were school
employees to testify. School districts can compel their employees to testify. For the hearing to
be fair, teachers must also have the ability to compel school employees to testify. In this case,
Petitioner has failed to preserve error on this point. In order to preserve error on such a point, a
teacher should request in writing to the district within a reasonable time frame, that a particular
employee be available to testify at the hearing. If the employee does not appear at the hearing, an
objection on the record needs to be made including an offer of proof.
Adequate Discovery
Petitioner contends that adequate discovery was not allowed to enable Petitioner to prove
that statements of certain individuals should be considered admissions of party opponents.
While the Rules of Civil Procedure do not apply to a nonrenewal hearing before a board of
trustees, fair procedures must be used. Here adequate procedures were available. For example, a
teacher may use the Open Records Act to obtain documents such as organizational charts.
Notice of Reasons
The notice of reasons of proposed nonrenewal was very sparse. In fact, it largely fails to
identify the actions which support the nonrenewal. The closest it comes to identifying particular
actions is
Deficiencies as pointed out in observation reports, appraisals or evaluations,
supplemental memoranda, or other communications.
with the Education Code is not to determine whether a violation of the Age Discrimination in Employment
Act occurred.
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On its face, this reason includes not only deficiencies pointed out in the formal evaluation
process but also any deficiencies pointed out in the break room or in the hall. This reason is too
broad to be very meaningful. If a teacher were to receive this type of notice, the teacher should
request a more specific notice in writing. If a sufficiently specific notice is not produced, the
teacher needs to make an objection on the record before the board. In order to prevent a ruling
that the issues were tried by consent, the teacher needs to object to any evidence as to issues that
were not properly noticed. In this case, no general objection to the notice was made to the board
and evidence was not objected to because it did not relate to the notice. As a practical matter, it
does not appear that Petitioner was surprised by Respondent’s case.
Respondent’s citation of Pierson v. Holliday Independent School District, Docket No.
185-R1-690 (Comm’r Educ. 1991) for the adequacy of its notice is not on point. The issue in
that case was whether criminal charges fell under the topic “immorality” as a reason for
nonrenewal. Petitioner’s objection to notice concerned not whether the reasons for nonrenewal
were adopted by the board but whether the notice detailed how she failed to meet the district's
standards for nonrenewal.
Meaningful Hearing
Petitioner objects that the hearing was not meaningful because it went on late into the
night. Due to the facts that most board members have day jobs and Saturday and Sunday
religious observances make weekend meetings problematic, nonrenewal hearings before boards
of trustees often occur on week nights. While in some circumstances a late hearing could be
ruled an unfair hearing, in this case, the record does not support such a contention. Petitioner
also failed to object to the late hour at the hearing.
Age Discrimination
Petitioner claimed that she demonstrated that age discrimination was the real reason for
her nonrenewal. Using the substantial evidence standard of review, it is concluded that she did
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not. There is substantial evidence that Petitioner was nonrenewed for failure to comply with her
growth plan and other directives.
Conclusion
Respondent’s decision to nonrenew Petitioner’s contract should be affirmed.
Any
procedural errors Respondent may have made are not harmful or were not preserved. There is
substantial evidence to conclude that age was not the reason why Respondent nonrenewed
Petitioner’s contract.
Conclusions of Law
After due consideration of the record, matters officially noticed, and the foregoing Findings, in
my capacity as Commissioner of Education, I make the following Conclusions of Law:
1.
The Commissioner of Education has jurisdiction of this appeal pursuant to Texas
Education Code § 21.301.
2.
In a nonrenewal case heard before a board of trustees, a teacher’s experts must,
upon timely request, be given access to evidence that could be relevant to their
testimony.
3.
Petitioner failed to preserve error as to her claim that her experts were not
allowed review evidence.
4.
Since Respondent was not responsible for destroying the videotape made of an
excellent teacher, no error is found on this point.
5.
While the Commissioner does not have jurisdiction over an Age Discrimination
in Employment Claim, the Commissioner may consider whether the reason for
nonrenewal was a reason not listed in the district’s policy.
6.
Petitioner waived her arguments about the exclusion of evidence concerning age
discrimination by not making offers of proof.
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7.
Petitioner had adequate means to determine whether school employees could be
characterized as party opponents.
8.
In a nonrenewal case heard before a board of trustees, a district shall ensure the
attendance of its employees to testify upon timely written request by the teacher.
9.
Petitioner had a sufficient opportunity to determine whether certain individuals
could be determined to be party opponents.
10.
The notice of proposed nonrenewal failed to clearly identify the actions of
Petitioner which were claimed to merit nonrenewal.
However, because
Petitioner did not obtain a ruling from the board on this issue and did not object
to evidence not properly noticed, this issue is waived.
11.
In a nonrenewal case before a board of trustees, upon written request from a
teacher, the administration will provide a more specific notice or stand on its
original notice.
If the teacher believes notice is inadequate because the
administration has not sufficiently amended the notice, the teacher must bring
the issue before the board of trustees to preserve error.
12.
Since Petitioner received a fair and meaningful hearing, Petitioner’s due process
rights were not violated.
13.
Respondent’s decision is supported by substantial evidence.
14.
Petitioner’s appeal is denied.
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15.
Respondent’s decision to nonrenew Petitioner’s contract is affirmed.
ORDER
After due consideration of the record, matters officially noticed, and the foregoing
Findings and Conclusions of Law, in my capacity as Commissioner of Education, it is hereby
ORDERED that Petitioner’s appeal be, and is hereby, DENIED.
SIGNED AND ISSUED this _______ day of ____________________________, 1998.
_______________________________________
MIKE MOSES
COMMISSIONER OF EDUCATION
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