#232-R2-787
DOCKET NO. 232-R2-787
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ROBERT FARRALD
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V.
DONNA INDEPENDENT
SCHOOL DISTRICT
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BEFORE THE STATE
COMMISSIONER OF EDUCATION
THE STATE OF TEXAS
DECISION OF THE COMMISSIONER
Statement of the Case
Petitioner, a probationary teacher, appeals his
nonrenewal by Respondent Donna Independent School District.
A hearing on the matter was held on February 11, 1988 before
Margaret O. Thompson, the Hearing Officer appointed by the
Commissioner of Education to hear this matter. Petitioner
is represented by Dianne E. Doggett, Attorney at Law,
Austin, Texas, and Respondent is represented by David
Martinez, Attorney at Law, Weslaco, Texas.
On December 20, 1988, the Hearing Officer issued a
Proposal for Decision recommending to the State Commissioner
of Education that Petitioner's appeal be denied. Petitioner
filed Exceptions to the Proposal for Decision on January 19,
1989. No reply to Petitioner's Exceptions was filed.
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 was a probationary teacher in Respondent
school district for the 1986-87 school year. (Record).
2. Respondent did not renew Petitioner's contract for
the 1987-88 school year. (Resp. Ex. 2, Joint Ex. 12).
3. Petitioner asked for and received a hearing before
Respondent Board of Trustees concerning his nonrenewal.
(Jt. Ex. 1).
4. After Petitioner's initial Fall, 1986 appraisals,
he wrote rebuttals to the appraisers, stating that they were
incompetent as evaluators. (Pet. Ex. 6, 9).
5. Petitioner filed a grievance concerning his Fall,
1986 evaluations, but later voluntarily withdrew it. (Pet.
Ex. 15).
6. Petitioner's summary performance score for 1986-87
exceeded expectations. (Pet. Ex. 18).
7. Petitioner wrote critical and abrasive notes to
school counselors concerning students and made no attempt to
work out differences with the counselors. (Resp. Ex. 6,9).
8. Petitioner refused to admit a student to his
classroom (when he had no desk for her) contrary to school
policy. (Resp. Ex. 5, Tr. 145).
9. Pursuant to a bomb threat, the school
administration issued an emergency directive requiring
teachers to station themselves in the halls during their
statutorily mandated conference period. Petitioner wrote a
note to the principal indicating he would abide by such an
order only for two days. (Pet. Ex. 4).
10. The principal believed that the district could not
maintain a working relationship with Petitioner because of
Petitioner's confrontational style of interacting with
faculty and administration. (Joint Ex. 1, pp. 5-9).
11. Petitioner stated in his evaluation grievance that
the TTAS process was invalid. (Pet. Ex. 11).
Discussion
Petitioner is a teacher with more than twenty five
years of experience, primarily in the fields of appraisal
and remedial reading. He testified that he has authored a
number of books.
The school year 1986-87 was the first year of
implementation of the Texas Teacher Appraisal System (TTAS).
Petitioner was understandably apprehensive about the
appraisal process. After the first appraisal by his
principal, Petitioner responded in writing. The memo read
in part as follows:
Suffice it to say that you are not a competent
observer nor a competent evaluator of teacher
performance. I have no fear that I can prove
these statements in a court of law or before any
reasonable audience. Any objective, intelligent
person could but sigh when comparing your
observations with reality.
Thirty four years ago an incompetent psychologist
condemned me to two years in a school for retarded
children. I've proven again and again that this
fool's diagnosis could only have been made by a
fool. At age forty-six I'll not let my personal
or professional life be marred because of the
incompetence of an evaluator.
(Pet. Ex. 6).
Petitioner subsequently grieved his fall evaluations
and the TTAS, but later voluntarily abandoned the grievance.
The relief he requested in the grievance was for the
district to declare all his evaluations null and void, and
"to refrain from all assessment activities involving Mr.
Farrald until such a time as valid and reliable assessment
tools and personnel are available." (Pet. Ex. 11).
Respondent pointed out to him that the district was required
by law to use the TTAS. (Pet. Ex. 14).
Petitioner alleges that his probationary contract was
not renewed by Respondent in retaliation for his having
challenged the TTAS, the evaluations made under that system
by his appraisers, and the competency of the appraisers. He
further alleges that Respondent retaliated against him for
filing a grievance about his evaluations in violation of
Art. 5154c-6 (Tex. Stat. Ann., Vernon's 1988) and in breach
of his employment contract. As a probationary teacher,
Petitioner has no property right to a new contract; however,
he does have the right not to be nonrenewed for
constitutionally or legally impermissible reasons.
Respondent maintains that Petitioner was nonrenewed
because of his confrontational style of interacting with the
administration and faculty, not because of the substance of
statements he made or because he filed a grievance. Thus,
Respondent maintains that no constitutional or grievance
rights are involved.
In order for Petitioner to carry his burden of proof on
the constitutional issue, he must show that his speech is
constitutionally protected, and that the protected speech
was a substantial or motivating factor behind the
nonrenewal. If the Petitioner carries this burden,
Respondent then must show that it would have taken the same
action absent the protected conduct. Mt. Healthy City
School District Board of Education v. Doyle, 429 U.S. 274,
97 S.Ct. 568 (1977).
The inquiry into whether Petitioner's speech is
protected is a two part analysis. First, it must be
determined whether the subject matter of the speech is a
matter of public concern; if so, then a balancing test is
employed to determine whether the interest of the employee
as a citizen in commenting upon matters of public concern
outweighs the interest of the public employer in promoting
the efficiency of the service it performs through its
employees. Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684
(1983), citing Pickering v. Board of Education, 391 U.S.
563, 88 S.Ct. 1731 (1968). An employee's right to free
speech on a matter of public concern applies even if the
forum is private, such as in an employee-employer situation.
Givhan v. Western Consolidated School District, 439 U.S.
410, 99 S.Ct. 693 (1979).
If the employee speaks out on matters which relate
solely to his own concerns as an employee, no free speech
rights are at issue.
Connick, supra. Here, Petitioner
complained about his fall evaluation and then filed a
grievance concerning it. In the process he condemned both
of his appraisers, as well as the newly adopted and mandated
state teacher appraisal system. But his primary purpose and
motivation was not to express his concern about the TTAS as
a citizen. Rather, he wanted his evaluation changed.
Each written communication entered into evidence
clearly demonstrates this conclusion. Even though the topic
of the TTAS is potentially a matter of public concern, in
the context of Petitioner's complaints, it is incorporated
by Petitioner only to address his own concerns as an
employee. Petitioner's speech is not protected because he
was speaking as an employee, not as a citizen.
Arguably, one aspect of his complaint does involve
Petitioner's expression about the TTAS as a citizen. In
Petitioner's memorandum to his principal in which he
announces that he is dropping his grievance, he makes the
following statements:
...the district could formally voice its concerns
and minimize the destructiveness of the required
[appraisal] procedure...
It may be that the whole TTAS issue will blow over
as TEA and the SBOE finds (sic) a way to save
face. If not, these issues will be decided in
court; and I have no doubt that the power
structure will lose....
(Pet. Ex. 15)
Here, Petitioner is voicing a suggestion to the
district for action to change the TTAS and an opinion that
the TTAS may be eliminated, without tying the expression to
his own situation. Arguably, in this instance he is
expressing himself on a matter of public concern because
this issue has been a matter of public debate from its
inception.
However, in employing the balancing test set forth by
Connick, it is apparent that Petitioner's expression of
views touches on a matter of public concern only in a
peripheral way. As the Court states: "The limited first
amendment interest involved here does not require that [the
employer] tolerate action which he reasonably believed would
disrupt the office, undermine his authority, and destroy
close working relationships." Connick, at p. 1694.
Similarly, Respondent is not obligated to re-employ a
teacher who has declared his supervisors to be incompetent
appraisers, and who has threatened to be insubordinate.
Petitioner's case may be contrasted with that of Nancy
Cox, a public school teacher who filed a grievance against
her principal. Cox v. Dardanelle Public School District, 790
F. 2d 668 (8th Cir. 1986). Plaintiff Cox had spoken out in
disagreement with her principal concerning educational
policies. The appellate court found that her expressions
were more than criticisms of internal personnel policies
because they related to educational practices which affect
student learning, such as ability grouping. In addition, in
employing the balancing test, the court found that there was
no evidence that Cox's criticisms affected her "otherwise
harmonious relations with her colleagues" or with the
principal. Cox at p. 674. The court concluded that the
source of the disruption was the principal's actions, not
the teacher's expression of views. In the instant case, the
record is clear that the disruption of relationships in the
school are attributable to Petitioner's confrontational and
abrasive manner of communicating with colleagues as well as
with superiors.
Petitioner also claims that his speech is protected by
the Texas Constitution. This claim is not supported for the
same reasons as those cited in the analysis of protection
under the federal constitution.
In regard to Petitioner's claims of retaliation for
filing a grievance and breach of contract, the same facts
which lead to the conclusion that he was not retaliated
against for his expression of ideas support the conclusion
that his grievance rights have not been interfered with, and
that his contract has not been breached. Petitioner has not
carried his burden of proof and his appeal should be denied.
Reply to Exceptions
Petitioner's exceptions merit reply. First, Petitioner
excepts to the Hearing Officer's failure to hold that
Petitioner's right to free speech was violated. Although
Petitioner's grievance of the evaluation process could
conceivably be of public concern, it is not so when viewed
within the analytical framework of Connick. "Whether an
employee's speech addresses a matter of public concern must
be determined by the content, form, and context of a given
statement, as revealed by the whole record." Connick v.
Myers, 461 U.S. 138 at 147-48, 103 S.Ct. 1684 at 1690-91, 75
L.Ed.2d 708 (1983). The relief Petitioner requested in his
grievance is significant in this regard. Petitioner did not
ask for a general prohibition of the appraisal system.
Instead he asked that the district declare all his
evaluations null and void, and "to refrain from all
assessment activities involving Mr. Farrald until such a
time as valid and reliable assessment tools and personnel
are available." (Pet. Ex. 11, emphasis added).
Analogous to this case is the situation in Reyes v.
Culberson County ISD, Docket No. 229-R3-787 (Comm'r Educ.,
January 1989). In that case, the Commissioner found that
Petitioner's statements regarding the district's early
implementation of the "no pass, no play" rule "did not
constitute protected speech, but rather involved a complaint
about a matter of concern to Petitioner in his workplace."
Reyes, at 5. In the case at hand, the appraisal system is
even more of a "workplace concern" since it more directly
impacts the individual teachers than the equally
controversial "no pass, no play" rule. In this light,
Petitioner's speech did not constitute protected speech.
Secondly, Petitioner excepts to the Hearing Officer's
failure to hold that Petitioner's right to grieve had been
violated. Petitioner is correct in stating that there is no
requirement under the constitutional right to petition for
redress of grievances that the subject of the grievance be a
matter of public concern. This, however, is irrelevant
because Petitioner was not fired for exercise of his right
to grieve but because of his confrontational style.
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. Petitioner's expressions do not constitute
protected speech.
2. Petitioner did not sustain his burden of proof to
establish a violation of constitutional or grievance rights.
3. Respondent did not abridge Petitioner's first
amendment rights in deciding not to renew his teaching
contract.
4. Respondent did not violate Petitioner's grievance
rights in nonrenewing him.
5. Respondent did not breach Petitioner's contract in
nonrenewing him.
6. 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 Petitioner's appeal be, and is hereby,
DENIED.
SIGNED AND ENTERED this _____ day of ________________,
19_____.
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W. N. KIRBY
COMMISSIONER OF EDUCATION