DOCKET NO. 319-R2-694
MICHAEL POWELL
§
V.
§
§
§ COMMISSIONER OF EDUCATION
§
WHITNEY INDEPENDENT
SCHOOL DISTRICT
§
§
BEFORE THE
THE STATE OF TEXAS
DECISION OF TIlE COMMISSIONER
Statement of the Case
Petitioner, Michael Powell, appeals the decision of Whitney Independent School
District, Respondent, to terminate his employment.
Intervenor, Division of Educator
Preparation and Certification, seeks to have Petitioner’s Texas Teacher Certificate revoked for
engaging in a sexual relationship with a student.
Lorraine J. Yancey was initially appointed the Administrative Law Judge to preside over
this case. Katherine L. Moore was the Administrative Law Judge who presided over the hearing
on the merits. Subsequently, Christopher Maska was appointed substitute Administrative Law
Judge by the Commissioner of Education. Petitioner is represented by Mr. Daniel A. Ortiz,
Attorney at Law, Austin, Texas.
Intervenor is represented by Magdalena H. Montelongo,
Attorney at Law, Austin, Texas.
Respondent is represented by Mr. James A. Showers,
Attorney at Law, Hilisboro, Texas.
On December 9, 1996, the Administrative Law Judge issued a Proposal for Decision
recommending that Petitioner’s appeal be denied, and that Intervenor’s request for revocation of
Petitioner’s Texas Teacher Certificate be granted. No exceptions were filed.
Findings of Fact
After due consideration of the evidence and matters officially noticed, in my capacity as
Commissioner of Education, I make the following Findings of Fact:
1.
Petitioner, Michael Powell, was employed by Respondent, Whitney Independent
School District, under term contracts from the 1993-1994 school year until May 9, 1994.
2.
Petitioner’s contract was terminated by Respondent during the term of the
contract.
3.
Petitioner engaged in a sexual relationship with a student, who will be
designated by the letter “T,” during the last months of 1993 and the first months of 1994.
4.
“T” attended Whitney High School during the 1993-1994 school year and was
one of Petitioner’s students.
5.
“T” is not and has never been Petitioner’s spouse.
6.
Petitioner and “T” exchanged a series of notes that referred to their sexual
relationship.
7.
Petitioner engaged in sexual intercourse with “T” approximately twenty times.
8.
Petitioner took “T” off campus during the school day to engage in sexual
intercourse a number of times.
9.
Petitioner was not a credible witness.
10.
“T’s” sexual relationship with Petitioner had a detrimental effect on “T”. “T”
was eighteen at time of the relationship with Petitioner. “T” was less emotionally mature than
most students of her age. “T” was easily manipulated by Petitioner.
11.
Petitioner directed “T” to keep their relationship secret.
12.
By memo of April 19, 1994, Respondent informed Petitioner that he was
suspended without pay and that the termination of his contract had been proposed. In particular,
Petitioner was informed that:
If you desire to contest this suspension and the proposed termination, you are entitled to
a hearing before the WISD Board, you must give the Board written notification within
fifteen (15) days of receiving this suspension notice.
13.
Petitioner did not give Respondent written notification that he was contesting the
proposed termination within fifteen days of receiving the memo of April 19, 1994.
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14.
The notice for Respondent’s May 9, 1994 board meeting specified that two
items for consideration were to “discuss personnel” and “consider termination of contract. At
that board meeting, the board voted to terminate Petitioner’s contract.
15.
Having a sexual relationship with a student is a grave violation of the duties and
responsibilities of a teacher.
16.
There was not a high degree of public interest in Respondent considering the
uncontested termination of Petitioner’s contract.
17.
At the hearing before the Commissioner’s designee, Petitioner had the
opportunity to present his case prior to a determination being made as to his certification.
18.
Petitioner holds Texas Teacher Certificate No. 408-25-48-33, Provisional
Secondary Physical Education and Provisional Mathematics.
19.
Petitioner’s actions toward “T” demonstrate that he presents an imminent danger
to the school children of Texas.
Discussion
Petitioner, Michael Powell, appeals Respondent’s decision to terminate his term
contract. In particular, he argues that he was not given notice of the board meeting when the
board voted to terminate his contract, that the board meeting was held in violation of the Open
Meetings Act, and that Respondent lacked good cause to terminate his contract.
contends Petitioner failed to exhaust administrative remedies.
Respondent
Intervenor asserts that, due to
Powell’s sexual misconduct with a student, his teaching certificate should be revoked. Powell
contends that it is a violation of the Fourteenth Amendment for an administrative agency to
bring a licensing action and to rule on that same licensing action. He also argues that Intervenor
violated the Administrative Procedures Act by not giving him an opportunity to show
compliance prior to the intervention. He asserts that the Professional Practices Commission, not
the Commissioner, has jurisdiction.
He claims that the law and regulations relied upon by
Intervenor are void for vagueness.
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Jurisdiction
Respondent contends that Petitioner failed to exhaust administrative remedies by not
making a timely request for hearing on his proposed termination.
Respondent is correct.
Petitioner was given notice by memorandum of April 19, 1996 that if he wished to contest the
proposed termination he had to notify the board in writing within fifteen days of receipt.
Petitioner did not notify the board in writing within fifteen days that he wished to contest the
proposed termination. One cannot appeal a district’s decision if local administrative remedies
have not been exhausted. Mitchison v. Houston Independent School District, 803 S .W .2d 769
(Tex. App.--Houston [14th Dist.], writ denied).
Petitioner lacks jurisdiction to contest the
board’s decision except for his contention that the board violated the Open Meetings Act.
Open Meetings Act
Petitioner contends that Respondent did not provide adequate notice of its meeting where
it voted to terminate Petitioner’s contract. The notice for the meeting listed two relevant issues
to be addressed, to “discuss personnel” and “consider termination of contract.” In Point Isabel
Independent School District v. Hinojosa, 797 S.W.2d 176, 180 (Tex. App.
--
Corpus Christi 1990,
writ denied), the court made the distinction that notice of “personnel” or “litigation” may be
appropriate for unimportant actions but that “highly specific subject matter notice” is required if
there is a high degree of public interest. Hence, a case by case determination needs to be made.
The court found that the hiring of three school principals was a matter with a high degree of
public interest. The court based this holding upon descriptions of the principals’ duties and
legislation regarding principals. No mention was made that the public was actually interested in
these three positions.
However, there was testimony that the positions of high school and
elementary principal “were of significant public importance.” Id. at 181.
The court, however, came to a different conclusion as to a librarian, English teacher, band
director, and part-time counselor. The court here held that “without a showing of some interest by
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at least one person, or that the decision taken was particularly important, ‘employment of
personnel’ adequately notifies the public of appellant’s decision to fill less important positions.”
Id. at 182. Hence, both actual public interest and the importance of the positions need to be
considered.
The Austin court has followed the decision in Port Isabel. In Stockdale v. Meno, 867
S.W.2d 123, 125-126 (Tex. App.
--
Austin 1993, writ denied) the court found that there was not
sufficient public interest in a band director’s contract to warrant more specific notice than
“discussion of personnel.” Here, the issue is whether there was sufficient public interest in the
termination of Petitioner’s contract when Petitioner did not elect to contest the proposed
termination. The evidence does not support the contention that there was public interest in an
uncontested termination proceeding. The notice given was sufficient to comply with the Open
Meetings Act. Due to Petitioner’s failure to exhaust administrative remedies and the lack of an
Open Meetings Act violation, it must be concluded that the termination of Petitioner’s contract
was lawful.
Certification
Petitioner contends that the Texas Education Code is unconstitutional because it allows
an agency to bring and decide a certification action and that it is too vague in specifying the type
of conduct that could lead to revocation. While the Commissioner believes these claims are
mistaken, he lacks jurisdiction to reach these issues. As the Commissioner held in Goodie v.
Houston ISD, No. 002-R2-996 (Comm’r Educ. 1996):
The Commissioner cannot reach the issue of whether the Texas Education Code is
unconstitutional. The Legislature has not granted the Commissioner the authority to rule
on the constitutionality of statutes. All administrative agencies are limited to the
authority granted them by statute:
[1] In defense of the order of the district court, appellees state, correctly, that an
administrative agency, such as the Commission, is a creature of the Legislature
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and has only such powers as are expressly granted to it by statute, together with
those necessarily implied from the authority conferred or duties imposed. State
v. Jackson, 376 S.W.2d 341 (Tex.1964); Stauffer v. City of San Antonio, 162
Tex. 13, 344 S.W.2d 158 (1961); Railroad C’ommission of Texas v. Red Arrow
Freight Lines, Inc., 96 S.W.2d 735 (Tex.Civ.App.1936, writ refd); So. Pac.
Transp. Co. R. R. Commission of Tex., 592 S.W.2d 74 (Tex.Civ.App.1979,
writ refd n. r. e.); Nueces Co. Water C. & I. Dist. v. Texas Water Rights
Commission, 481 S.W.2d 924 (Tex.Civ.App.1972, writ ref’d n. r. e).
Railroad Commission of Texas v. Atchison, Topeka, & Santa Fe Railroad Co., 609
S.W.2d 641, (Tex. App.--Austin 1980, writ ref’d n.r.e.). The legislature has not given
the Commissioner the authority to declare any statute unconstitutional. In fact,
administrative agencies do not have the authority to declare a statute unconstitutional.
“Administrative agencies have no power to determine the constitutionality of statutes.”
Texas State Board of Phar,nacy v. Waigreen Texas Co., 520 S.W.2d 845,848 (Tex. Civ.
App.--Austin 1975, writ ref’d n.r.e.). See also Birdwell Independent School District v.
First Baptist Church of Haltom City, 788 S.W.2d 26, 29 (Tex. App.-- Ft. Worth 1988,
writ denied), EnRe c’orp. v. Railroad Commission of Texas, 852 S .W. 2d 661, 663
(Tex. App.-- Austin 1993, no writ). To allow an administrative agency to declare a
statute unconstitutional would usurp the role of the judiciary
.
1
This does not mean that an administrative agency should not be mindful of the
constitution when interpreting a statute. If a statute is ambiguous and one interpretation
violates the constitution, that interpretation should be rejected in favor of an
interpretation that is in harmony with the constitution. However, the duties of the
Commissioner are created by statute. Texas Education Code §7.055. It is not the
Commissioner’s job to rule on the validity of the Texas Education Code, which is the
very statute that defines his own authority.
Since the Goodie decision was issued the Supreme Court has addressed the issue, “Where, as
here, the final agency order is challenged in the trial court on the ground that the underlying
statute is unconstitutional, the agency lacks the authority to decide the issue.” Central Power &
Light Company v Sharp eta!., 40 Tex. Sup. Ct. J. 443, 444 (March 21, 1997)
‘There would be no constitutional problem if an administrative agency were to declare its own rule to be
unconstitutional. Petitioner, however, waived this argument in his opening statement.
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Commissioner’s Authority
Petitioner contends that the certification action should have been brought before the
Professional Practices Commission. In Op.Atty.Gen., No. DM-290 (May 2, 1994), the Attorney
General, noting the demise of the Professional Practices Commission, found that the
Commissioner has authority to hear Professional Practices Act complaints under Texas
Education Code
Code
§ 13.046,
§ 13.2112.
Further, Intervenor also brought this action under Texas Education
which is an independent source of jurisdiction. The Commissioner does have
authority to take licensing action without receiving the case from the Professional Practices
Commission.
Opportunity to Show Compliance
Petitioner alleges that Intervenor violated Texas Revised Civil Statutes 6252-1 3a
3
§ 13(c)
by not giving Petitioner a chance to show compliance prior to intervening. This section of the
Administrative Procedure and Texas Register Act requires that an agency give notice and
provide the licensee an opportunity to be heard. The Third Court of Appeals has interpreted this
provision as follows:
This means notice of facts or conduct that allegedly warrant license suspension or
revocation, an opportunity to participate and defend at a hearing, and an opportunity to
show that no requirements of the law for the retention of the license were ever violated.
Grace v. Structural Pest Control Bd. of Tex., 620 S.W.2d 157, 160 (Tex.Civ.App.Waco 1981, writ ref’d n.r.e.).
Guerrero-Ramirez v. Texas State Bd. of Medical Examiners, 867 S. W 2d 911, 917-918
.
(Tex.App.-Austin 1993, no writ).
A number of state agencies make it a practice to give an
4 prior to filing a complaint.
18(c) hearing
At this informal hearing, the licensee is given an
opportunity to present his side of the issue. While it is appropriate to hold an 18(c) hearing, it is
2
All references to the Texas Education Code are references to the code as it existed on September 1, 1993
This provision has been codified as Tex. Gov. Code § 2001.054.
The term “18 (c) hearing” derives from § 18 (c) of the Administrative Procedures and Texas Register Act.
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not required by the Administrative Procedures Act. Petitioner had his opportunity to present his
position at the hearing on the merits. That is all that is required.
Merits
In determining whether action should be taken against Petitioner’s certificate, the
standard is whether Petitioner is worthy to instruct the school children of this state.
Texas
Education Code § 13.046. Petitioner engaged in a sexual relationship with a student. Petitioner
is not worthy to instruct the youth of this state. Petitioner’s certificate is revoked.
Conclusions of Law
After due consideration of the record, matters officially noticed, and the foregoing
Findings of Fact, in my capacity as Commissioner of Education, I make the following
Conclusions of Law:
1.
The Commissioner of Education has jurisdiction to hear Petitioner’s Open
Meetings Act claim pursuant to Tex. Educ. Code § 11.13, under the substantial evidence
standard of review.
2,
The Commissioner does not have jurisdiction to hear the Petitioner’s claim that
Respondent wrongly terminated his contract, except as specified in Conclusion of Law 1,
because Petitioner failed to exhaust local remedies by not timely requesting a hearing on his
proposed termination.
4.
The Commissioner has jurisdiction to hear Intervenor’s certification action under
Texas Education Code § § 13.046, 13.211 under a preponderance of the evidence, de novo
standard of review.
5.
Respondent’s notice for its May 9, 1994 meeting is sufficient to allow
Respondent to terminate Petitioner’s contract in an uncontested proceeding, under the
requirements of the Open Meetings Act.
6.
The Commissioner of Education does not have authority to declare a portion of
the Texas Education Code unconstitutional.
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7.
Petitioner’s appeal is denied.
Respondent’s decision to terminate Petitioner’s
contract was lawful.
8.
The requirement of Texas Revised Civil Statutes 6252-13a §13(c) of allowing a
licensee to present his side prior to loss of a license was met in this case.
9.
A teacher who engages in immoral conduct is unworthy to instruct the school
children of Texas.
10.
Immoral conduct is that conduct which is willful, flagrant, or shameless, and
which shows a moral indifference to the opinion of the good and respectable members of the
community.
11.
Petitioner engaged in immoral conduct by engaging in a sexual relationship with
a student.
12.
Petitioner is unworthy to instruct the school children of Texas.
13.
Petitioner’s Texas Teaching Certificate should be REVOKED due to
Petitioner’s unworthiness to instruct the youth of the state.
14.
Petitioner shall return the teacher’s copy of Petitioner’s Texas Teaching
Certificate to the State Board for Educator Certification.
15.
The State Board for Educator Certification should prepare to distribute
appropriate notices informing the public of the revocation of Petitioner’s Texas Teacher’s
Certificate.
16.
Because Petitioner presents an imminent peril to health, safety, and welfare, this
order will be effective on the date it is signed by the Commissioner. Texas Government Code §
2001.144.
ORDER
After due consideration of the record, matters officially noticed, and the foregoing
Findings of Fact and Conclusions of Law, in my capacity as Commissioner of Education, it is
hereby
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ORDERED that Petitioner’s appeal concerning Respondent’s termination of Petitioner’s
contract be, and is hereby, DENIED; and
IT IS FURTHER ORDERED that Intervenor’s request for revocation of Petitioner’s
Texas Teacher Certificate be, and is hereby, GRANTED; and
FURTHER ORDERED that Petitioner’s Texas Teacher Certificate No. 408-25-48-33
be, and is hereby, REVOKED; and
FURTHER ORDERED that Petitioner immediately return the teacher’s copy of
Petitioner’s Texas Teacher Certificate to the State Board for Educator Certification; and
FURTHER ORDERED that the State Board for Educator Certification prepare and
distribute notices advising the public of the revocation of Petitioner’s Texas Teacher Certificate;
and
FURTHER ORDERED that because Petitioner’s presents an imminent peril to health,
safety, and welfare, this order will be effective on the date it is signed by the Commissioner of
Education. Texas government Code §2001.144.
SIGNED AND ISSUED this
3
day of
Dp’-4,?J44J1997.
MIKE MOSES
COMMISSIONER OF EDUCATION
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