#109-R10-187
DOCKET NO. 109-R10-187
JO ANN LEMON AND
HARLEY HISCOX
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V.
DALLAS 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
Petitioners appeal Respondent's failure to afford them
a hearing as contemplated by Respondent's grievance policy.
Petitioner Lemon was aggrieved by her 1985-86 summative
evaluation and sought to have it changed. On or about
October 26, 1986, Petitioners were notified that the board
of trustees would "stop, look, and listen" to their
grievance at a public hearing. Petitioners chose not to
appear. Accordingly, the board did not hear or rule on the
merits of Petitioners' local grievance.
Petitioners are represented in this appeal by Marcia
Wise, Attorney at Law, Arlington, Texas. Respondent is
represented by Leonard J. Schwartz, Attorney at Law, Austin,
Texas. Lorraine J. Yancey was appointed to replace Janis
Herd as Hearing Officer by the Interim Commissioner of
Education.
On May 31, 1991, the Hearing Officer issued a Proposal
for Decision recommending that Petitioner's appeal be
dismissed. No exceptions were filed.
This Decision is based on a review of the face of
Petitioners' First Amended Petition for Review. Petitioners
have filed this appeal without exhausting administrative
remedies. Therefore, the Commissioner of Education is
without jurisdiction and it is hereby ordered that
Petitioners' appeal be DISMISSED.
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. At all times relevant to this appeal, Petitioner
Lemon was employed by Respondent as a teacher. (Admitted).
2. Petitioner Lemon's performance for 1985-86 was rated
as "satisfactory." She sought to have the evaluation
changed from "satisfactory" to "exceeds expectations" in
criterion three, four, and five. (First Amended Pet.
Review).
3. Petitioner Harley Hiscox's only involvement in this
case is that of union representative for Petitioner Lemon
during her local appeal. (Admitted).
4. On September 30, 1986, Petitioners appealed the
1985-86 evaluation following procedures set forth in the
Dallas Independent School District Grievance Procedure
Manual and the Board Grievance Policy. (First Amended Pet.
Review).
5. On October 23, 1986, Petitioners received a decision
from a Level III Hearing Officer denying their appeal. The
decision was dated October 7, 1986. (First Amended Pet.
Rev.).
6. On October 29, 1986, Petitioners appealed to Level
IV, a hearing before Respondent's board of trustees, and
were granted a hearing for October 30, 1986. (First Amended
Pet. Rev.).
7. By letter dated October 30, 1986, Robert Hester,
President of the Dallas Board of Education, informed
Petitioners that the board would "stop, look, and listen" to
her grievance at a public hearing. Additionally,
Petitioners would be limited to five minutes of oral
argument on the "delegations portion" of the agenda. (First
Amended Pet. Rev.).
8. Petitioners Lemon and Harley Hiscox failed to appear
for a hearing before Respondent's board of trustees.
9. Petitioners contend that their refusal to appear for
the board hearing on October 30, 1986 was justified because
the hearing was not the type contemplated by Respondent's
written policy. That is, the hearing did not allow ten
minutes of oral argument or provide Petitioner Lemon the
option of selecting a closed or open hearing. (First
Amended Pet. Rev.).
Discussion
The question presented by the argument of Petitioners
is whether a grievant may refuse a hearing before a board
of trustees when the type of hearing offered is perceived
by the grievant to be inconsistent with written board
policy.
The doctrine of exhausting of administrative remedies
is a long-settled rule that no one is entitled to relief for
a supposed or threatened injury until the prescribed
administrative remedy has been exhausted. Texas Air Control Board et
al., v. Travis County, 502
S.W.2d
213, 215 (Tex.App.--Austin 1973) reh'g denied
In the instant
appeal, the prescribed remedy was a hearing before
Respondent's board of trustees. Although Petitioners offer
a plethora of reasons for failing to attend the hearing, see
Finding of Fact No. 9, the remedy available to appellant was
not so inadequate such that an exception to the principle of
exhaustion of administrative remedies is required. Id. at 216; Grounds
v. Tolar ISD, 707 S.W.2d 889 (Tex.
1986)
Any
challenge to the precise procedure offered by Respondent
must be made to Respondent at the local hearing in order to
allow Respondent the opportunity to correct any error and to
preserve the error for appeal. Petitioners failed to
properly present their objections and have therefore failed
to exhaust administrative remedies.
As a result of Petitioners' decision not to appear
before Respondent's board of trustees, the Commissioner of
Education is without jurisdiction to hear this appeal. See.
Code Ann. +11.13.
Petitioners' appeal must be dismissed.
Conclusions of Law
After due consideration of the record, matters
officially noticed and the foregoing Finding of Fact, in my
capacity as State Commissioner of Education, I make the
following Conclusions of Law:
1. Petitioners failed to exhaust administrative
Tex. Educ.
remedies when they refused to attend a hearing before
Respondent's board of trustees.
2. Petitioners' First Amended Petition for Review
presented no circumstances that would warrant an exception
to the doctrine of exhaustion of administrative remedies.
3. The Commissioner of Education does not have
juris-diction over this appeal under Tex. Educ. Code Ann.
+11.13.
4. Petitioners' appeal must be DISMISSED.
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 Petitioners' appeal be, and is hereby
DISMISSED.
SIGNED AND ISSUED _______ day of ______________________
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LIONEL R. MENO
COMMISSIONER OF EDUCATION