TEXAS EDUCATION AGENCY



TEXAS EDUCATION AGENCY

HEARINGS DIVISION

IN THE MATTER OF: §

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YSLETA INDEPENDENT §

SCHOOL DISTRICT §

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Petitioner §

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and § TEA No. 074-LH-304

§ PATRICIA PALAFOX

JOSE GRIEGO, § CERTIFIED HEARING EXAMINER

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Respondent §

RECOMMENDATION OF CERTIFIED HEARING EXAMINER

Statement of the Case

By notice dated March 10, 2004, Ysleta Independent School District (“YISD”) gave notice to Jose Griego (“Griego”) that he was being recommended for non-renewal. Respondent Griego requested the assignment of a certified hearing examiner under Chapter 21, Subchapter F of the Texas Education Code. By letter dated April 5, 2004, the undersigned was assigned to preside over this case.

The Hearing Examiner entered pretrial scheduling and discovery orders. Pursuant to Texas Education Code section 21.257(c) the parties agreed in writing to extend by no more than 45 days the time requirement in Texas Education Code section 21.257(a) for the certified hearing examiner to issue a written recommendation.

The above-captioned matter came on for hearing before the Certified Hearing Examiner, commencing on May 17, 2004 and continuing May 18 and 19, 2004. The proceedings were conducted at the offices of the Ysleta Independent School District. Petitioner was present and represented by attorneys Rosemary M. Marin and M. Mitchell Moss. Respondent was present and represented by attorney Mark Berry. After consideration of the record and matters officially noticed, in my capacity as Certified Hearing Examiner, I make the following findings of fact and conclusions of law:

Findings of Fact

(Transcript references explanation: page 82, lines 1-4 written as Tr. 82:1-4)

1. The Hearing Examiner has proper jurisdiction over the parties and the subject matter.

2. Jose Griego was employed pursuant to a term contract as an academic counselor at Bel Air High School, in the Ysleta Independent School District, for the 2003-2004 school year (Exh. 5). This position requires a counselor’s certificate. (Exh 5, 113) Griego has been a school counselor since 1973 (Tr. 82:1-4).

3. Jose Griego met with Raye Lokey, the former Associate Superintendent of Human Resources, and Dr. Jodi Duron, the Director of Employee Relations, on February 13, 2004, wherein he was given an opportunity to fully respond to the District’s administrators in the Human Resources Department regarding Principal Jana Garcia’s recommendation to propose non-renewal of his contract (Exh. 105).

4. Jose Griego received by hand delivery the District’s notice of proposed non-renewal on March 11, 2004 (Tr. 449: 14-19; Exh. 108).

5. The District’s notice of proposed non-renewal lists seven (7) reasons or grounds for proposing non-renewal. (Exh. 108 ). The reasons can be summarized as follows: a. Failure to file a report with Child Protective Services and insubordination in failing to file one when directed to by his Principal.

b. Failure to follow directions by classifying 46 out of 48 Junior level students incorrectly.

c. Incorrectly placing twenty-five Senior level students which could detrimentally effect their ability to graduate on time.

d. Insubordination in refusing to comply with the directives of an intervention plan imposed on him by his Principal;

e. Failure to correct or even address deficiencies in the imposed intervention plan.

f. Failure to maintain an effective working relationship, or maintain good rapport, with parents, the community or colleagues as evidenced by numerous complaints brought against him by parents, students, and colleagues.

6. The District’s notice of proposed non-renewal lists numerous Board policies and administrative regulations allegedly violated by Mr. Griego. The District’s notice of non-renewal also stated that Griego failed to perform in a satisfactory manner the duties in his job description which was attached to the notice of non-renewal. (Exh 108, 113).

Failure to file a CPS Report

7. R. Zubia, a 15-year-old student assigned to Griego, was a run away from home over the weekend of October 11-12, 2003. On October 13, 2003, Zubia’s mother contacted Griego to tell him to be on the lookout for the student. On October 13, 2003 R. Zubia was in class so Griego asked to speak to her to ask why she ran away. (TR 206:1-2) She told Griego that she felt uncomfortable with her older brother (Tr. 205:9-16). Griego did not ask why R. Zubia was uncomfortable with her brother (Tr. 206: 3-5). However, R. Zubia told Griego that her brother was “poking her butt” with a pencil, and asking her to suck his penis, and one night she awoke at night to find her brother sitting next to her on the bed (Tr 204:18-23; 788:16-789:4; 792:4-13).

8. On October 14, 2003 Griego approached Denisa Garcia, Zubia’s English teacher, to inquire about Zubia. Zubia was not in class. Griego reported to Denisa Garcia the situation with the student and told her that there were allegations of sexual advances by Reina’s brother. When Ms Garcia asked Griego if he had reported the matter to Child Protective Services as required by law and District Policy, Griego said that he did not know if the allegations were true or not, and he needed proof. Ms. Garcia argued with him that their duty was to report, not to discover whether allegations were true or not. Mr. Griego left. Ms. Garcia then decided to make the report and she did so to a police officer, Ed Hernandez, who is stationed on campus. (Tr 670: 1-25) On October 16, 2003 Denisa Garcia reported the issue of R. Zubia to Child Protective Services (Ex. 20).

9. Later on October 14, 2004, the police officer questioned Griego. Griego understood that, during an on-going investigation of child abuse, it was his duty to fully cooperate with CPS and the police department (Tr. 202: 19-24). Nevertheless, Griego did not want to talk to Officer Gonzalez of the El Paso Police Department during his investigation of R. Zubia’s allegations and by his own admission responded only minimally when Officer Gonzalez went to talk to him about the situation (Tr. 212:23-213:4; Exh. 22, 24). Griego told Gonzalez that the allegation of sexual misconduct had been resolved by the student’s family. (Exh. 22).

10. In the afternoon of October 14, 2004, Griego confronted the English teacher Denisa Garcia and questioned why she had made a report to Child Protective Services about R. Zubia’s situation (Tr. 207: 18-22). In his opinion, it would have been better not to report R. Zubia’s allegations to Officer Gonzalez of the El Paso Police Department because he considered such action a breach of confidentiality (Tr. 208: 12-17). Griego was visibly angry and yelled at the English teacher so that students could hear him. (Tr. 673:8-25, Tr 674:1-17)

11. YISD’s policy FFG relates to student welfare, child abuse and neglect (Exh. 114, Policy FFG, including FFG’s Exhibits, Bates page numbers 222, 223 and 224, 525 and 526). Policy FFG and its Exhibits state that anyone who suspects that a child has been or may be abused or neglected has a legal responsibility under state law to report the abuse or neglect to law enforcement or to Child Protective Services. Griego received training on policy FFG as recently as September, 2003 (Tr. 195: 16-196:19; Exh. 114). Griego understood the District’s policy with regard to reporting suspected child abuse (Tr. 197: 20-22). Griego was also reminded by a teacher, Denisa Garcia, that it was his duty to report R. Zubia’s situation to Child Protective Services (Tr. 216: 16-24). He further understood that an untimely report of abuse to appropriate authorities could place a child at risk of continued abuse (Tr. 202:25-203: 3).

12. Griego made a conscious decision not to report R. Zubia’s situation to CPS or the El Paso Police Department (Tr. 211; 6-18). In fact, he never had any intention of reporting the incident because he did not believe he had enough proof to substantiate it, even after being directed to do so by his principal, Jana Garcia (Tr. 6-18; Exh. 23, 24). Principal Garcia had met with Mr. Griego on October 16, 2003 and October 22, 2003. (Ex. 23) In her October 22 memo which was the basis of the meeting, she raised her concerns that Griego failed to report suspected sexual abuse and verbally accosted Ms. Garcia and yelled at her in a threatening manner. She stated that Griego had agreed to make a report to CPS. In Griego’s rebuttal letter to his Principal Jana Garcia concerning this incident, he accused the Principal of fabricating that he had agreed to contact CPS, he accused the El Paso Police Officer of falsely reporting his conversation with Griego, and said the fabrications were made up because the English teacher had breached confidentiality. (Exh. 24). Griego denied that he was told anything by Zubia except that her brother made her uncomfortable.

13. R. Zubia’s runaway status coupled with the information that she was uncomfortable with her older brother and that her uncomfortableness could involve sexual abuse was sufficient reason for Jose Griego to have reported the allegations to CPS or law enforcement authorities, in accordance with District Policy FFG, FFG Exhibit and Texas Family Code Section 261.101. Reporting child abuse would not breach any confidentiality. .

14. By failing to report Jose Griego violated District Policies FFG, the District’s standards of professional conduct as well as Texas Family Code Section 261.101 (Exh. 114, 115 ).

15. Griego’s violation of Policy FFG was raised as a concern to him by the school principal, Jana Garcia, in a memo dated October 22, 2004 (Exh. 23). In addition, the manner in which Griego handled the R. Zubia issue was addressed in an Intervention Plan, which required that Griego review policy FFG and outline the legal requirements of the policy, which Griego refused to do (Exh. 35). Griego’s subsequent evaluation dated February 3, 2004, also reflected concerns regarding the issue of reporting potential child abuse(Exh. 43).

16. By violating Board Policy FFG, Griego failed to fulfill the duties and responsibilities of his position, failed to meet the District’s standards of professional conduct (specifically, Standard 1.7) (Exh. 115), failed to comply with special conditions of employment contained within his employment contract (Exh. 5) and failed to perform to the satisfaction of the District all duties set forth in the job description (Exh. 113), or as assigned.

Misclassifying 46 out of 48 Junior Students

17. This was the first year of the Texas Assessment of Knowledge and Skills (TAKS) test and all counselors were reminded to double-check and have their grade level changes for new students completed by October 30, 2003 (Tr. 227:16-2287, Exh. 29). Counselors also discussed this issue at counselors’ meetings including one on October 30, 2003 (Exh. 30). Griego knew that it was his responsibility to follow those directions and properly place the students (Tr. 228: 2-7; Tr. 479:11-13).

18. Griego submitted to the attendance clerk a list of names of 48 juniors that he wanted re-classified as seniors (Tr. 231: 9-1 1; Tr. 247: 18-25; Exh. 33B). This information was then included in a state-mandated report (PEIMS). The PEIMS report contains important demographic information about the school.

19. Griego admits that he misclassified 46 out of 48 juniors as seniors because he did not check their 9th grade entry dates (Tr. 232:20-233:2). Griego knew it was important when auditing a transcript to look at the 9th grade entry date because students are classified based on number of credits earned as well as their entry date into the 9th grade. (Ex. 34, Tr 228:17- 228:20). The juniors in question had enough credit hours to be seniors but they had not spent the calendar days in school which are required in order to be a senior. No other counselor made this mistake.

20. By the time Griego’s mistakes were discovered, the PEIMS report had gone to the Texas Education Agency (Tr. 233:3-5; 476: 22-477:7). Therefore, the PEIMS report was improperly submitted to the State as a result of his mistakes (Tr. 233: 6-8).

21. Due to the large number of mistakes by Griego, Bel Air had to completely re-submit the PEIMS report rather than just submit corrections (Tr. 477:8-16).

22. Due to Griego’s errors, misclassified students’ testing materials which are usually computer coded with information from the PEIMS report, all had to be hand-coded by another counselor (Tr. 237:2-5; 477: 23-5).

23. Due to Griego’s errors, transcripts submitted with the PEIMS report were incorrect due to the identification of the grade level (Tr. 238: 8-16). The incorrect transcripts had to be corrected by the registrar (Tr. 477:17-22).

24. Griego’s errors with these students also affected the class ranking of seniors because the junior students who were incorrectly classified as seniors were added to the list of 12th grade students (Tr. 242: 5-11; 478:13-15). This is significant because the students who were mis-classified were above-average students, so this mistake could very well have bumped some senior students down in the class rankings (Tr. 243: 1-4). Class rank can affect college applications, as well as scholarships (Tr. 243: 11-18; Tr. 478:16-23).

25. Griego admits that his mistakes and their consequences in this regard could have been avoided by just following instructions that he received to check the 9th grade entry dates of the students (Tr. 243: 19-22).

26. Griego’s errors in misclassifying 46 juniors were discovered and brought to his attention on November 18, 2003 when he received a copy of a memo from the Head Attendance Clerk to the Assistant Principal Marilyn Money (Exh. 33A, 33B, 34, 35), one day after the Intervention Plan was implemented (Tr. 248: 21-22; Exh. 35). Griego was reprimanded for his mistakes in a memo dated Nov. 20, 2003 from Assistant Principal Marilyn Money. Griego did not write any sort of rebuttal as he had done on issues in the past nor did he file a grievance or otherwise complain about his supervisor’s findings or instructions regarding this issue (Tr. 248: 4-6). This issue was further raised during Griego’s most recent evaluation (Exh. 43).

27. Griego failed to follow known counseling procedures and the directives which resulted in his misclassification of 46 junior students. Therefore, Griego failed to fulfill the duties and responsibilities of his position, failed to meet the District’s standards of professional conduct (specifically, Standard 1.7) (Exh. 115), failed to comply with special conditions of employment contained within his employment contract (Exh. 5) and failed to perform to the satisfaction of the District all duties set forth in the job description (Exh. 113), or as assigned.

Incorrectly Placing 25 Seniors

28. Griego was in charge of students in the R-Z part of the alphabet (Tr. 86:17-24). It is Griego’s job to maintain records relating to his job as a counselor, with his assigned students (Tr. 88:8-11, Ex. 113). Griego was charged with the duty of respecting the dignity and promoting the welfare of his students, which included scheduling them correctly (Tr. 251: 7-13; Exh. 5, 113, 114 [Policy FFEA]).

29. Griego was reminded verbally and in writing to double-check senior schedules to ensure accuracy (Tr. 287:15-288:1; 288:23-25; 290:8-13; 292:291:9-13; 343:9-15; Exh. 36, 103).

30. It is Griego’s job to ensure that seniors are scheduled properly and have the right number of credits in time for graduation (Tr. 344:4-17).

31. There were several scheduled opportunities for Griego to find and correct errors on seniors’ class schedules (Tr. 342:20-23). First, the seniors are pre-registered in their junior year, when their transcripts should be audited to ensure proper placement (Tr. 342: 24-343:6). The start of school is another chance to check transcripts and audit schedules to ensure proper placement of seniors (Tr. 343:9-12). In September, counselors are supposed to hold individual senior conferences for the very purpose of ensuring that the students are properly on track for graduation with the appropriate credits and have met all other pre-requisites, such as testing (Tr. 343:16-344:3; 344:18-21). Counselors also have another opportunity to audit transcripts and schedules when the first and second set of 9-week grades are received in mid-October and mid- December (Tr. 345:2-5; 346:19-23).

32. Griego admits that he made repeated mistakes concerning his senior students’ schedules and records. (Exhibits: 36, 36A, 36B, 43, 45, 46, 66, 69, 70, 71, 72, 73, 77, 78, 83, 85, 86, 87, 89, 90, 91, 95, 97, 98, 99, 100, 101, 102).

33. Griego’s repeated, numerous mistakes regarding scheduling his senior students and maintaining accurate records are deficiencies that were pointed out in the Intervention Plan, the Evaluation dated February 3, 2003, various meetings with his colleagues and supervisors, and in many notes from his colleagues and supervisors.

34. Griego’s incorrectly placing twenty-five senior level students could have detrimentally affected at least 25 senior students’ ability to graduate on time, had the mistakes not been found and corrected by other counselors or administrators.

35. In at least one case, that of Y. Vargas, the student learned on February 11, 2003 that she was missing two classes for graduation due to Mr. Griego’s not having audited her transcripts and schedules correctly (728:21-23). Another counselor caught the mistake. The student was not a good student and had to take the additional classes in her last semester as well as prepare for the last chance to pass her standardized tests if she were to graduate with her class in May. She did not pass the test but it cannot be known if she would have passed had she not had to take the two additional classes in her last semester. (Tr. 725:3-726:6; 728:6-16; 728:21-23; 730:16-731:9). Y. Vargas would not graduate with her class (Tr. 733:13-734:11).

Non compliance with Intervention Plan

36. Principal Jana Garcia placed Griego on an Intervention Plan on November 17, 2003 (Tr. 464:25-465:25; Exh. 35). This was the first time the Principal had imposed an intervention plan on a Bel Air employee in the more than three years she had been principal.

37. The Intervention Plan of November 17, 2003 identified some improvements Mr. Griego had to make, and listed five separate activities with deadlines which Griego was to complete. Four of the activities required Griego to read and outline certain written materials and policies regarding counseling relationships, professional responsibility, relationships with other professionals, ethical standards, and sexual harassment. The fifth required him to attend five sessions of anger management classes on Saturday mornings with the fee paid for by Bel Air High School. (Ex. 35) The deadlines for two of the outlines was November 21, 2003, one outline was due December 8, 2003, one outline was due December 15, 2003, and the anger management classes were to be completed by January 31, 2004.

38. The anger management classes were required at least in part because of two recent incidents. (Exh. 23) The first incident occurred September 19, 2003 when a school custodian flicked Griego’s earlobe as he was sitting at his desk. Griego’s response was to jump up and start yelling “Don’t do that. Don’t ever touch me. I’m not bullshitting you.” His yelling could be heard down the hall by at least one student and another counselor. Griego said he yelled because he was taken by surprise, which is understandable, but he did apologize and take full responsibility for his actions. (Tr. 638:19- 640:24, 641:7-14, Exh 18, 19) The second incident was the one with teacher Denisa Garcia when Griego confronted her after she had reported the potential abuse of student R. Zubia. (See discussion in Findings of Fact 10 above)

39. Before the Intervention Plan was presented to Griego, he was given an opportunity to give input into the development of the plan (Tr. 249:11-16). Griego gave feedback regarding deadlines that were going to be implemented in the Intervention Plan before it was issued to him and Ms. Garcia agreed with the changes that he made to the deadlines (Tr. 249: 11-23).

40. Griego believed that the intervention plan was punishment and he questioned the timing of it. (Tr. 250: 2-3). However, Griego never filed a grievance or any other complaint regarding the Intervention Plan (Tr. 250:4-8).

41. Griego understood the instructions on the Intervention Plan that were given by his supervisor (Tr. 250:9-12).

42. Griego understood that he was obligated to follow the time-imposed directives of the Intervention Plan (Tr. 250:13-18; Tr. 250:23-253:7; 260:22-261:1; 280:22-281:2).

43. Griego was given a memo dated December 18, 2003 stating that Griego had done nothing to comply with the Intervention Plan. (Exh. 36 A). On January 29, 2003 Jana Garcia again met with Griego and followed the meeting up with a written memo to Griego dated January 30, 2004, again going over his total failure to comply with the activities of the Intervention Plan and to improve his performance. (Ex. 36B). In a memo to Griego dated February 3, 2004 Garcia warned Griego that his performance had not improved and that his failure to follow the directives of the Intervention Plan constituted insubordination.(Ex. 44).

44. Griego understood that his refusal to follow the directives of the Intervention Plan could result in the loss of his job (Tr. 250:19-22; 261:5-12).

45. In addition to the performance memos to Griego in Exhibits 36 A, 36 B, and 44, on February 19, 2004 Garcia gave Griego a memo outlining errors in placing students, specifically a special education student. (Exh. 103). Griego’s response to Garcia admitted the error but accused her of failing to bring it to his attention in a timely manner. (Exh. 106).

46. Griego admits he made no effort to comply with any directives or activities of the Intervention Plan (Tr. 253: 253:3-9; 253:10-17; 253:18-21;253:22-254:5;254:6-14;254:15-255:10;255:11-18; 255: 19-23; 260:7-10; 262:3-11).

47. Griego did not see a need to improve his overall performance and made no changes to his behavior or follow the Intervention Plan (Tr. 261:24-262:11; 273-9-11).

48. Griego admits that he continued to make repeated mistakes concerning his students’ schedules and records, despite repeated reminders to keep accurate records. He repeatedly made similar kinds of mistakes before and after the Intervention Plan.

49. Griego was given a formal performance appraisal most recently by his principal Jana Garcia on February 3, 2004 (Tr. 464:8-14; Exh. 43). Griego’s most recent evaluation is an accurate reflection of his poor performance during the 2003-2004 contract term (Tr. 464:18-20, Exh. 43).

50. Griego complains that his prior evaluations had been performed by the Head Counselor, Debra Black and that accordingly his most recent performance appraisal should not have been performed by the Principal. He complains that it was not the usual procedure for the Principal to do the evaluation, and it was not done in the normal time sequence for evaluation of counselors. However, Griego did not file a grievance to complain about his evaluation (Tr. 298:12-15). Moreover, Griego’s performance evaluations from prior years are not relevant to the issues at hand.

51. Griego’s repeated, numerous mistakes regarding mis-scheduling his students and maintaining inaccurate records are deficiencies that were pointed out in the Intervention Plan, the Evaluation dated February 3, 2003, meetings with his colleagues and supervisors, and in many notes from his colleagues and supervisors.

52. The Intervention Plan and other directives from Griego’s supervisors constitute “official directives” (Tr. 284:22-25; Exh. 35, 36A, 36B, 44, 45, 103 and 105).

53. Webster’s Dictionary defines “insubordination” as “being disobedient to authority.”

54. Griego’s refusal to follow the directives of his supervisors constitutes being disobedient to the authority of his supervisors and constitutes insubordination (Tr. 285:1-6).

55 Griego’s insubordination is a violation of Board Policy DFBB(Local) (Exh. 114). Board Policy DFBB(Local) states that a reason for proposed nonrenewal of an employee’s term contract shall be “5. Insubordination or failure to comply with official directives.” (Exhibit 114). Chapter 21 of the Texas Education Code, Subchapter E, states that a term contract may be terminated for “good cause as determined by the board.” Griego’s insubordination is also a violation of the State Code of Ethics (Exh. 115), Griego’s job description (Exh. 113), and the provisions of Griego’s contract (Exh. 5).

56. Good Cause” for terminating a term contract has been defined as the employee’s failure to perform the duties in the scope of employment that a person of ordinary prudence would have done under the same or similar circumstances. An employee’s act constitutes good cause for discharge if it is inconsistent with the continued existence of the employer-employee relationship. Lee-Wright, Inc. v Hall, 840 S. W. 2d 572, 580 (Tex.App.-Houston [1st Dist.]1992, no writ. The Commissioner of Education has adopted this court created definition.

57. Griego’s blatant insubordination constitutes good cause for the non-renewal of the employment contract at issue. It is sufficient by itself to sustain a non renewal. A teacher may be nonrenewed if any proven reason for proposed nonrenewal is sufficient by itself. Gary Schimschat v Groesbeck Independent School District, Docket No. 280-R1-693(Comm’r Educ., 1995).

58. Griego’s overall job performance failed to comply with Board Policies or administrative regulations. Even excluding the District’s allegations that Griego’s rapport and relationship with parents, colleagues, and students was not satisfactory, Griego failed to fulfill the duties and responsibilities of his position (Exh. 114), failed to meet the District’s standards of professional conduct (specifically, Standard 1.7) (Exh. 115), failed to comply with the requirements of his employment contract (Exh. 5) and failed to perform to the satisfaction of the District all duties set forth in the job description (Exh. 113), or as assigned. Griego’s shortfalls in this regard constitute good cause for the non-renewal of the employment contract at issue.

Conclusions of Law

After due consideration of the record, matters officially noticed, and the foregoing Findings of Fact, in my capacity as Hearing Examiner I make the following conclusions of law:

1. The Hearing Examiner has jurisdiction of the parties and the subject matter under the Texas Education Code .

2. Jose Griego had a valid term employment contract to work as a high school academic counselor with YISD, effective during the 2003-2004 school year .

3. YISD has demonstrated by a preponderance of the evidence that YISD had valid grounds for the non-renewal of Griego’s 2003-2004 contract.

4. Griego’s attempt to raise irregularities regarding the appraisal process, such as that it was improper for his Principal to evaluate him out of a time sequence, is waived. Generally, complaints regarding the appraisal process must be raised at the time the employee becomes aware of the error and should not be raised during nonrenewal proceedings. Sylvia Lewis v Austin Independent School District, Dkt. 104-R1-600 (Comm’r Educ. 1999).

5. YISD complied with the requirements of Chapter 21, Subchapter E, Section 21.205 of the Texas Education Code in giving Griego notice of the nonrenewal of his contract.

6. The appeal by Griego was conducted pursuant to the Texas Education Code, Sub-chapter F, Section 21.256 and 257, and the findings of fact were published based on substantial evidence and within the time required.

Recommendations

After due consideration of the evidence, the matters officially noticed, and the foregoing Findings of Fact and Conclusions of Law, and in my capacity as Certified Hearing Examiner, it is hereby RECOMMENDED that the Board of Trustees of the Ysleta Independent School District adopt the foregoing Findings of Fact and Conclusions of Law and uphold the District’s recommended non renewal of Jose Griego’s 2003-2004 contract.

Signed and issued the 2nd day of July, 2004.

________________________________

Patricia L. Palafox

Certified Independent Hearing Examiner

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