Ann Orbro v. Beumont ISD - 006R2092017



DOCKET NO. 006-R2-09-2017

ANN ORBRO § BEFORE THE

§

§

V. § COMMISSIONER OF EDUCATION

§

§

BEAUMONT §

INDEPENDENT SCHOOL DISTRICT § THE STATE OF TEXAS

DECISION OF THE COMMISSIONER

Statement of the Case

Petitioner, Ann Orbro, complains of the decision of Respondent, Beaumont Independent School District, to nonrenew her term contract. Christopher Maska is the Administrative Law Judge appointed by the Commissioner of Education to hear this cause. Petitioner is represented by, Laurence (“Larry”) Watts Attorney at Law, Missouri City, Texas. Respondent is represented by Sierra D. Fisher, Attorney at Law, Nacogdoches, Texas.

The principal issue in this cause is jurisdiction. To bring an issue before the Commissioner, the issue must be briefed. If the issue is not briefed it is not the job of the Commissioner to review the local record and all possible applicable law to determine if error occurred. If the Commissioner were to do so, the Commissioner would become an advocate for a party. Because Petitioner never filed a brief in this case, Petitioner has failed to exhaust administrative remedies and the Commissioner lacks jurisdiction over this case.

Findings of Fact

After due consideration of the record and matters officially noticed, it is concluded that the following Findings of Fact are valid and supported by the record in this cause:

1. The findings of fact drafted by the board appointed hearing examiner and adopted by the school board are incorporated as if set out in full.

2. On September 28, 2017, the Petition for Review was filed. Petitioner has not filed anything else in this case.

3. Respondent filed its brief on November 3, 2017.

Discussion

Petitioner contends Respondent’s decision to nonrenew her term contract should be overturned because a continuance or rehearing was not granted and because the decision is not supported by substantial evidence. Respondent denies this and argues that Petitioner failed to exhaust administrative remedies by not filing a brief.

Background

This case was heard by a hearing examiner appointed by Respondent under Texas Education Code section 21.207(b-1). This provision allows certain school districts to select a hearing examiner to conduct nonrenewal hearings. This is a very different procedure than the procedure for an independent hearing examiner certified by the Commissioner to hold a hearing and issue a recommendation under Texas Education Code chapter 21, subchapter F. One distinction is the timelines for a hearing held by a district appointed hearing examiner are even more compressed than those for hearings conducted under Texas Education Code chapter 21, subchapter F. A hearing conducted under Texas Education Code section 21.207(a) is required to be held “not later than the 15th day after the board receives the request for a hearing unless the parties agree in writing to a different date.”

Briefing

Briefing is extremely important in any appeal, but is particularly important in a subchapter G, chapter 21 appeal. The Commissioner must issue a decision not later than the 30th day after the date a district could have filed its response to the petition for review. Tex. Educ. Code § 21.304. Because of the statutory mandate for expeditious resolution, a rule was adopted that the mailbox rule does not apply to these cases. 19 Tex. Admin. Code § 157.1072(k). Further the Commissioner has adopted a specific rule as to briefing. 19 Tex. Admin. Code § 157.1058. The opposing party and the Commissioner need to timely receive any briefing. The opposing party cannot be fairly expected to prepare its response, if it does not receive the petitioner’s arguments. The Commissioner is not an advocate for either side. The Commissioner cannot guess which arguments might have been made. Briefing is required to bring issues before an appellate tribunal:

It is an appellant's burden to discuss his assertions of error, and appellate courts have no duty—or even the right—to perform an independent review of the record and the applicable law to determine whether there was error. Hernandez v. Hernandez, 318 S.W.3d 464, 465 (Tex. App.–El Paso 2010, no pet.). “We will not do the job of the advocate.” Happy Harbor Methodist Home, Inc. v. Cowins, 903 S.W.2d 884, 886 (Tex. App.–Houston [1st Dist.] 1995, no writ).

Bruns v. Dallas Indep. Sch. Dist., No. 05-16-00090-CV, 2017 WL 1737983, at *2 (Tex. App. 2017, no pet.). A failure to file a brief is a failure to exhaust administrative remedies. Tex. Educ. Code § 21.301(c); 19 Tex. Admin. Code § 157.1058.

Petitioner never properly made her arguments. The Petition for Review does not identify which findings of facts or conclusions of law are being challenged and there is only one citation to the local record. Petitioner has neither filed a brief nor requested an extension of time to do so. In some cases, a petition for review might be held to function as a brief. At times, petitions for review have been filed which meet the briefing requirements of 19 Tex. Admin. Code § 157.1058. This is not such a case. Unlike a case that is heard by a school board where the school board does not issue findings and facts and conclusions of law, in the present case Respondent’s board of trustees issued findings of fact and conclusions of law. Because findings of fact were issued in this case, it was not sufficient for Petitioner in her Petition for Review to state that Respondent’s decision is not supported by substantial evidence. At least, Petitioner should have identified which findings of fact were being challenged as not being supported by substantial evidence. Further, Petitioner did not file the initial brief and even after Respondent filed its brief, Petitioner did not file a reply brief. Petitioner has failed to exhaust administrative remedies by not filing a brief to properly bring her issues before the Commissioner.

Conclusion

This cause should be dismissed for lack of jurisdiction.

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 lacks jurisdiction over this case under Texas Education Code section 21.301.

2. The conclusions of law drafted by the board appointed hearing examiner and adopted by the school board are incorporated as if set out in full.

3. Because Petitioner did not properly bring issues before the Commissioner by filing a brief, Petitioner has failed to exhaust administrative remedies.

4. This cause should be dismissed for lack of jurisdiction.

ORDER

After due consideration of the record, matters officially noticed, and the foregoing Findings of Fact and Conclusions of Law, in my capacity as the Commissioner of Education, it is hereby

ORDERED that the Petitioner’s appeal, be, and is hereby dismissed.

SIGNED AND ISSUED this ________ day of November, 2017.

_______________________________________

MIKE MORATH COMMISSIONER OF EDUCATION

Signed and issued on November 17, 2017 by Mike Morath, Commissioner of Education

................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download