DOCKET NO. 120-R1-698
FRANK M. GONZALES
§
BEFORE THE
§
§
§ COMMISSIONER OF EDUCATION
§
V.
DONNA INDEPENDENT
SCHOOL DISTRCT
§
§
THE STATE OF TEXAS
DECISION OF THE DESIGNEE OF THE COMMISSIONER
Statement of the Case
Petitioner, Frank M. Gonzales, appeals the decision of the board of trustees of the
Donna Independent School District, Respondent, to nonrenew his contract of employment
as high school principal.
Paula Hamje is the Administrative Law Judge appointed by the Commissioner of
Education. Petitioner is represented by Jose Antonio Gomez, Attorney at Law, McAllen,
Texas. Respondent is represented by Jorge D. Canales, Attorney at Law, Weslaco, Texas.
Findings
It is concluded that the following findings are supported by substantial evidence:
1.
Respondent proposed nonrenewal of Petitioner’s contract by notice dated
April 9, 1998, for failure to maintain an effective working relationship, or maintain good
rapport, with parents, the community and colleagues, and for failure to meet the
District’s standards of professional conduct, both violations of board policy.
2.
Respondent provided Petitioner a closed hearing before its board of
trustees on May 7, 1998. Petitioner made no motion for the President of the board of
trustees to recuse himself.
3.
Respondent’s board of trustees voted on May 8, 1998, not to renew
Petitioner’s term contract and hand delivered written notice of the nonrenewal action to
Petitioner on May 19, 1998.
4.
Petitioner timely filed his petition for review to appeal the nonrenewal
with the Commissioner on June 4, 1998.
5.
Respondent’s policy, DFBB (LEGAL), requires that before making a
decision not to renew a term contract, the board shall consider the most recent evaluations
if the evaluations are relevant to the reason for the board’s action.
6.Based upon an objection at the board hearing by Respondent’s attorney which
was sustained by the board’s President, Petitioner’s most recent performance evaluation
(1997-1998) was not considered by the board at the hearing on May 7, 1998 before their
decision to nonrenew Petitioner.
7.
Petitioner’s performance evaluation of 1997-1998 was relevant to the
reason(s) for the board’s nonrenewal of Petitioner’s contract.
Discussion and Further Findings
Petitioner contends that Respondent’s action not to renew his employment
contract was arbitrary, capricious and contrary to the law and to evidence presented.
Petitioner more specifically argues that the President of the Board of Trustees should
have recused himself from the board hearing and that the board committed an Open
Meetings Act violation which also constituted a violation of board policy. Petitioner also
requests an additional evidentiary hearing before the Commissioner pursuant to Texas
Education Code §21.301 and §21.302. Petitioner and his attorney departed from the
board hearing during the testimony of the first witness and failed to return at any time
thereafter. Petitioner argues that Respondent’s nonrenewal action was based on political
retaliation and argues that Respondent failed to consider the administration’s evaluation
of Petitioner prior to its decision to nonrenew Petitioner’s contract as required by the
Texas Education Code §21.202, 19 TAC §157.1071(g)(8). The referenced provision of
the Education Code is currently renumbered as §21.203. Petitioner filed a Motion for
Sanctions against Respondent and its attorneys, Humberto Silva and Jorge Canales,
alleging “Donna Independent School District’s Response to Frank M. Gonzalez’ Petition
#120-R1-698
-2-
for Review and DISD’S Motion to Dismiss Without Hearing” is a groundless pleading
and should be stricken with imposition of “other sanctions as authorized by the Rules of
Civil Procedure and the laws of the State of Texas.”
Petitioner requests the
Commissioner to forward his motion and Respondent’s pleading to the State Bar of Texas
Disciplinary Section.
Respondent filed a motion to dismiss without a hearing based on the contention
that Petitioner failed to timely request a hearing before the board as required by the Tex.
Educ. Code §§21.207, 21.209 and 21.301, or in the alternative, that Petitioner failed to
timely file his appeal with the Commissioner.
Recusal
Although Petitioner maintains that the President of the board was prejudiced
against Petitioner and “should have” recused himself, the record does not reflect that
Petitioner at any time moved for recusal. Petitioner’s failure to file a written motion or
orally move for recusal at the Board hearing waived any challenge to the Board President
serving at the board hearing. There is no motion for recusal for the Commissioner to
review.
Evidentiary Hearing Request
Petitioner requests that the Commissioner receive additional testimony pursuant to
§§21.301 and 21.302, Tex. Educ. Code, based on procedural irregularities at the board
hearing. Section 21.302 only allows for an evidentiary hearing before the Commissioner
to show procedural irregularities that occurred at a hearing before a hearing examiner.
The Commissioner was not given statutory authority to conduct evidentiary hearings
concerning alleged procedural irregularities occurring at a hearing before the board of
trustees, Tex. Educ. Code §21.301.
The Commissioner in this case must base his
decision upon the local record. Goodie v. Houston Independent School District, Docket
No. 002-R2-996 (Comm’r Educ. 1996). Respondent’s objection to consideration of
evidence or issues not contained in the local record is sustained.
#120-R1-698
-3-
Approximately six hours before the board hearing, Respondent provided Petitioner
supplementary documentation to the nonrenewal notice to which Petitioner objected due
to its untimely nature. Respondent offered its explanation for the delay in providing the
documentation and offered to agree to an extension of time or continuance of the hearing.
Petitioner refused to continue the hearing, did not claim surprise, and thereby waived any
objection to proceeding with the hearing based on the supplemented notice.
Open Meetings Act
Petitioner argues that the board’s action should be reversed because the board
illegally convened the board hearing pursuant to the Government Code as opposed to the
Texas Education Code §21.207. However, the board did afford Petitioner a closed
hearing in accordance with the Education Code. The board used the terms “executive
session” and “closed meeting” interchangeably; however, there is no violation apparent
from the record or argument. The record reflects that the board intended to have a closed
hearing and did in fact afford Petitioner a closed hearing. The objection to Respondent
referring to the hearing as an “executive session” appears to be due to the presence of
legal counsel at the board hearing to assist in advising the board on legal procedure.
However, there is no legal basis to support the objection to the presence of a legal
advisor. Petitioner also argues that his family was excluded from the hearing while not
testifying due to the Board President referencing the closed hearing as an “executive
session;” however, despite using inaccurate terminology, Petitioner’s family was excused
in accordance with board policy, DFBB (LOCAL), which provides a hearing conducted in
closed meeting allows only Board members, the employee, the Superintendent, their
representatives and such witnesses as may be called to attend, and witnesses may be
excluded from the hearing until called for evidence.
#120-R1-698
-4-
Political Retaliation
Petitioner asserts that he is the victim of political retaliation; however, no
evidence on that issue was presented at the board hearing of May 7, 1998. Petitioner left
the hearing prior to the eliciting of any evidence on that issue. Attempts to provide
testimony through pleadings or affidavits filed with the Commissioner subsequent to the
hearing are inappropriate. The Commissioner must base his decision on the local record
and may not consider any additional evidence. Tex. Educ. Code §21.301.
Motion to Dismiss
Respondent contends that Petitioner has failed to present proof at any time of
having filed a written request for a hearing before the board despite Petitioner’s
representations that the written request was filed with Respondent. At the time of the
hearing, Petitioner still failed to produce a copy of the purported written request for a
hearing; however, the Board proceeded with the hearing “out of an abundance of
caution.” Although Respondent could have decided not to hear the grievance by finding
it was not timely filed, Respondent chose to hear the grievance and reached the merits of
the grievance. Respondent waived the timelines issue. Weslaco Federation of Teachers
v. Weslaco Independent School District, Docket No. 058-R10-1295 (Comm’r Educ.
1998), Hernandez v. Meno, 828 S.W.2d 491, (Tex. App. – Austin 1992, writ denied).
Respondent incorrectly asserts in its response to the petition for review that Petitioner
filed his petition for review with the Texas Education Agency on June 20, 1998. The
record reflects that the petition for review was filed on June 4, 1998. Respondent argues
that since the Board announced its decision not to renew Petitioner’s contract on May 8,
1998, Petitioner was required to file his appeal by May 28, 1998 (or Respondent argues,
#120-R1-698
-5-
May 29, 1998, at the latest), pursuant to §§21.209 and 21.301 of the Texas Education
Code. This appeal arose under §21.208 of the Code; therefore, the time for filing the
petition for review began from the date the board advised Petitioner of its decision by
notification in writing, May 19, 1998. Only if the appeal had arisen under §21.259 of the
Code would the time for filing have begun from the date of the board’s announcement of
its decision. Therefore, Petitioner’s appeal was timely filed with the Commissioner on
June 4, 1998. Respondent’s Motion to Dismiss Without Hearing is denied.
Motion for Sanctions
Petitioner may file any action he deems appropriate with the State Bar. Such an
action is not within the Commissioner’s purview. Petitioner’s motion for sanctions is
denied.
Evaluations
Respondent refused to admit Petitioner’s performance evaluation into evidence or
allow the evaluation to be read into evidence based on Respondent’s objection that the
evaluation was irrelevant to the reason Petitioner’s contract was not renewed. The law
requires that the board must consider the most recent evaluations before making the
decision to nonrenew a teacher’s contract if the evaluations are relevant to the reason for
the board’s action (emphasis added).
Tex. Educ. Code §21.203.
The board has
incorporated that law’s language into its policy, DFBB (LEGAL). Petitioner’s contract
was nonrenewed for two reasons, failure to maintain an effective working relationship, or
maintain good rapport, with parents, the community and colleagues, and failure to meet
the District’s standard of professional conduct. The record reflects that the evaluation
contains ratings concerning Petitioner’s relations with colleagues, parents and students.
#120-R1-698
-6-
Specifically, performance criteria include “fosters team building among staff,”
“communicates and promotes high expectation levels for staff and student performance in
an enabling, supportive way,” and “initiates and supports programs and actions that
facilitate a positive, caring climate for learning." Such criteria are directly relevant to the
reasons given for the nonrenewal of Petitioner’s contract.
The record clearly reflects that the District’s objection to the board’s consideration
of evaluations was sustained, and the board did not consider written evaluations prior to
the decision to nonrenew. Written evaluations must be considered by the board in
accordance with the Texas Education Code before it decides to propose nonrenewal of a
teacher’s term contract. Wilmer-Hutchins Independent School District v. Brown, 912
S.W.2d 848 (Tex. App.-Austin, writ denied).
Petitioner’s contract was not renewed
based on Petitioner’s conduct observed by several parents, teachers and students as rude,
unprofessional and humiliating, which included yelling, with and without use of a
bullhorn. Criteria concerning work relations set out in evaluations are relevant to the
matter at hand and should be considered as required by law. The weight then afforded the
performance evaluations in a matter such as the instant case is entirely within the board’s
discretion.
Respondent’s failure to consider any written evaluations of Petitioner prior to the
decision to nonrenew his contract is a violation of the Texas Education Code §21.203,
and therefore, Petitioner’s appeal should be granted. Petitioner is entitled to employment
in the same professional capacity for the succeeding school year.
#120-R1-698
-7-
Conclusions of Law
After due consideration of the record, matters officially noticed, and the foregoing
Findings, in my capacity as designee of the Commissioner of Education, I make the
following Conclusions of Law:
1.
The Commissioner of Education has jurisdiction over the instant matter
pursuant to Tex. Educ. Code §21.301.
2.
The Texas Education Code §21.203 requires the board of trustees to
consider the most recent evaluations before making a decision not to renew a teacher’s
contract if the evaluations are relevant to the reason for the board’s action.
3.
Respondent’s failure to consider any written evaluations prior to
nonrenewing Petitioner’s contract constitutes a violation of Tex. Educ. Code §21.203.
4.
The local record does not contain substantial evidence to establish and
support Respondent’s compliance with the requirements of Tex. Educ. Code §21.203.
5.
Petitioner’s appeal must be granted, and Petitioner is entitled to
employment in the same professional capacity for the succeeding school year.
ORDER
After due consideration of the record, matters officially noticed, and the foregoing
Findings and Conclusions of Law, in my capacity as designee of the Commissioner of
Education, it is hereby
ORDERED that Petitioner’s appeal be, and is hereby, GRANTED; and,
#120-R1-698
-8-
IT IS FURTHER ORDERED that Respondent employ Petitioner in the same
professional capacity for the succeeding school year.
SIGNED AND ISSUED this ______ day of _______________________, 1998.
_______________________________________
VIRGIL E. FLATHOUSE
ASSOCIATE COMMISSIONER,
FINANCE AND OPERATIONS
#120-R1-698
-9-