DOCKET NO



DOCKET NO. 021-R10-1106

JOHN BRAJENOVICH § BEFORE THE

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V. § COMMISSIONER OF EDUCATION

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ALIEF §

INDEPENDENT SCHOOL DISTRICT § THE STATE OF TEXAS

DECISION OF THE COMMISSIONER

Statement of the Case

Petitioner, John Brajenovich, complains of actions and decisions of Respondent, Alief Independent School District. Christopher Maska is the Administrative Law Judge appointed by the Commissioner of Education to hear this cause. Petitioner is represented by Edward A. “Tony” Connors, Attorney at Law, Austin, Texas. Respondent is represented by J. Erik Nichols, Attorney at Law, Houston, Texas.

The Administrative Law Judge issued a Proposal for Decision recommending that Petitioner’s appeal be denied. Exceptions and replies were timely filed and considered.

Findings of Fact

After due consideration of the record and matters officially noticed, it is concluded that the following Findings of Fact are supported by substantial evidence and are the Findings of Fact that best support Respondent’s decision[1].

1. Petitioner is employed by Respondent under a continuing contract dated March 20, 1996. This contract provides:

Employer agrees to pay Employee for the services rendered an annual salary in accordance with the Alief Independent School District salary schedule as adopted by Employer. The salary shall be paid twice per month.

2. During the 2005-2006 school year, Petitioner was reassigned from the position Natatorium Manager to the position of teacher/coach.

3. Petitioner received a salary of $76,444.74 for the 2005-2006 school year, which was the same salary Petitioner received for the 2004-2005 school year.

4. The first day of instruction for the 2006-2007 school year was August 16, 2006.

5. Petitioner received a salary of $69,283 for the 2006-2007 school year. This is the salary Respondent offered to teachers with 31 years experience with the supplements and stipends that Petitioner qualified for.

6. The 45th day before the first day of instruction for the 2006-2007 school year was July 1, 2006.

7. On September 13, 2005, Petitioner filed a grievance concerning his reassignment from Natatorium Manager to teacher/coach which alleged that he would be harmed financially by the reassignment in the future.

8. By memo of October 20, 2005, the Level I response was delivered. It reads in part:

His salary may be affected for the 2006-2007 school year. In light of the severe budgeting crisis facing Alief ISD and other districts across Texas, there is a possibility that the employee may get his salary reduced next year. If the employee is no longer performing duties associated with managing the Natatorium, his compensation should be adjusted to match his duties rather than former duties. Should employee return for the 2006-07 school year as a teacher, there is a possibility he shall be paid as a teacher. No salary reduction has been effected for the 2005-06 school year. This portion of the grievance is not warranted since the action he grieves did not occur.

9. By memo of January 13, 2006, the Level I response was upheld as the Level II response.

10. By letter of February 1, 2006, Petitioner filed a brief concerning the Level III grievance, which reads in part:

Mr. Brajenovich is being penalized by this reassignment that will likely result in a loss of pay in the future - With this reassignment, Mr. Brajenovich will no longer be considered an administrator or manager. Instead, he will be considered a teacher/coach. Even though this school year, he will be paid at the same rate before his reassignment, this is unlikely to occur in the future. Mr. Brajenovich is likely to be subject to a significant reduction of salary in the future, due to his reassignment.

11. On February 27, 2006, Respondent’s board of trustees voted to uphold the Level II response. Petitioner did not appeal this decision to the Commissioner.

12. On July 24, 2006, Petitioner filed a second grievance. This grievance alleges that Respondent failed to give Petitioner notice of his reduction in salary for the 2006-2007 school year. This is the grievance which has been appealed to the Commissioner.

Discussion

Petitioner argues that Respondent failed to properly compensate him. Respondent denies this and contends that Petitioner’s grievance is untimely.

Timeliness

Respondent contends that Petitioner’s grievance is untimely because Petitioner did not appeal his first grievance to the Commissioner. Petitioner’s first grievance alleged that his change in position from Natatorium Manager to teacher/coach would result in a future reduction in pay. However, while the board concluded that a reduction in pay may occur, it found that the issue was not ripe because no reduction had yet occurred. Petitioner was not required to appeal this first decision, which did not set his pay for the 2006-2007 school year, in order to be able to complain about an actual reduction in pay for the 2006-2007 school year. One need not grieve a hypothetical reduction in salary. Further, Petitioner does not contend that Respondent could not reduce his compensation. Petitioner’s argument is that Respondent did not give sufficient notice of his change in salary. The reason there is significant discussion of the first grievance in the second grievance and in this appeal is that Respondent contends that the board’s decision in the first grievance put Petitioner on notice that his compensation for the 2006-2007 school year might be reduced.

Notice of Reduced Pay

The Commissioner has consistently recognized that teacher pay can be reduced but that districts are required to inform teachers of reductions in pay before teachers lose the right to unilaterally resign from their contracts. In the 2004 case of United Educators Association v. Arlington Independent School District, 012-R10-1102 (Comm’r Educ. 2004), the Commissioner cited numerous cases concerning whether teacher compensation could be reduced:

Bowman v. Lumberton Indep. Sch. Dist., 801 S.W.2d 883 (Tex. 1990); Sierra v. Lake Worth Indep. Sch. Dist, 2000 WL 1587652 (Tex. App.-Austin October 26, 2000, no pet.); Ector County TSTA/NEA v. Alanis, 2002 WL 31386061 (Tex. App.-Austin October 24, 2002, pet. denied); Griffin v. Nelson, 2002 WL 220316 (Tex. App.-Austin February 14, 2002, no pet.); Weslaco Fed. of Teachers v. Texas Education Agency, 27 S.W.3d 258 (Tex. App.-Austin 2000, no pet.); Josh v. Beaumont Independent School District, Docket No. 240-R3-492 (Comm’r Educ. 1993); Guier v. Dallas Independent School District, Docket No. 213-R3-589 (Comm’r Educ. 1993); San Elizario Educators Assoc. v. San Elizario Independent School District, Docket No. 222-R3-392 (Comm’r Educ. 1994); Goedeke v. Smyer Independent School District, Docket No. 111-R3-1292 (Comm’r Educ. 1997); Wheeler v. DeSoto Independent School District, Docket No. 080-R10-300 (Comm’r Educ. 2001).

While these cases are significant to the issues at hand, none of these cases addressed the issue of whether a teacher’s salary could be reduced after the teacher was informed that a reduction in salary is possible. These cases address the issue of can a teacher’s salary be reduced when the teacher learns of a new salary after the teacher can no longer unilaterally withdraw from a contract when no previous warning had been given. The Commissioner has found that in such instances the teachers are entitled to their previous year’s salary. Returning teachers would know their previous year’s salary. New teachers would be able to determine what salary they would receive by finding where they would be in prior year’s salary schedule. They could conclude that they would not receive less than they would have received if they worked for the district in the previous year.

More recent cases do not directly answer the question presented in this case. In Sanchez v. Donna Independent School District, Docket No. 075-R10-605 (Comm’r Educ. 2007) and Gonzalez v. Donna Independent School District, 074-R10-605 (Comm’r Educ. 2007) two central office administrators were reassigned in the 2004-2005 school year to assistant principal positions without changes in salary. However, for the 2005-2006 school year their salaries were reduced. They were informed of the reductions in several ways. Their contracts for 2005-2006 school year showed a reduction from 12 months service to 11 months service. Further, Petitioners were informed that their compensation would be based on their current assignment. Lastly, the payroll office provided clarification as to their compensation. In these cases, the district made it very clear what the reduction in pay would be. The issue of whether pay can be reduced when teachers can no longer unilaterally withdraw from contracts if teachers have been warned of a possible reduction in pay is an issue of first impression.

Sufficiently Communicated?

The question presented in this case is, did Respondent sufficiently communicate the reduction in salary. As previous cases have pointed out, a general problem with setting salaries is that contracts are often signed and teachers can no longer unilaterally withdraw from contracts at a time when school boards may not have received firm figures for expected revenue for the next school year. See Griffin v. Nelson, 2002 WL 220316 n.2 (Tex. App. - Austin 2002, no pet.) Often a board does not know the true state of its finances before the period a teacher can resign without consequences expires. As salaries are a high percentage of district expenses, salaries often cannot be set until solid revenue projections are available. Another problem is that a school district cannot initially adopt a salary schedule and then when it receives information based on expected revenues increase salaries. The problem with such a procedure is that it would violate the Texas Constitution art. III, sec 51 which prohibits the gift of public funds. If teachers contracted to receive a certain salary for the next school year, the school district could not decide to pay them more than the agreed upon salary. The best that a school district can often do is to issue a warning of a possible reduction in pay. If teachers have a sufficient warning, they cannot complain that they were tricked into staying with a district instead of seeking employment elsewhere. If teachers are given a sufficient warning of a possible reduction of pay when they can still unilaterally withdraw from their contracts, a district can reduce teacher compensation.

Hathaway

Petitioner’s reliance on Hathaway v. General Mills, Inc., 711 S.W.2d 227 (Tex. 1986) for the proposition that notice of a change in a contract must be unequivocal is misplaced. Hathaway is not a teacher contract case. The contract in Hathaway was an at-will contract. In such a case, an employer can only change compensation when there is a clear notice of change and acceptance of change. Id. 229. Of course, in an at-will employment arrangement, the employer could fire the employee who does not accept a reduction in compensation. In the present case, under the parties’ contract, Petitioner’s compensation was to be set annually by the board. Respondent, unlike an at-will employer, had a contractual right to decrease compensation. Hathaway is not applicable to the present case.

Sufficient Warning

What constitutes a sufficient warning must be decided by the Commissioner. Two aspects of a sufficient warning are formality and specificity. A formal warning would have to come from a high district source such as the board, the superintendent, or the human relations office. To be sufficiently formal the warning would have to be made by a written communication or at a meeting called for the purpose of informing teachers of a potential decrease of salary.

Standards for specificity are perhaps more difficult to establish than standards for formality. What the warning needs to convey is how much of a reduction of salary is possible. A district is generally bound to pay teachers under the Minimum Salary Schedule. Tex. Educ. Code § 21.402. A district should indicate if it is considering reducing salaries to the statutory minimum or to some higher level. The question to be answered is did the teachers actually know the amount their salaries could be reduced or would a reasonable teacher have known the amount the salary could be reduced.

Application to the Present Case

In the present case, the warning the district relies upon was adopted by the board of trustees in a grievance process. Ultimately, the board adopted the Level II decision which in turn at adopted the Level I decision, that among other things stated:

If the employee is no longer performing duties associated with managing the Natatorium, his compensation should be adjusted to match his duties rather than former duties. Should employee return for the 2006-07 school year as a teacher, there is a possibility he shall be paid as a teacher.

There can be no doubt that the warning was formal.

The next question is whether the warning was sufficiently specific. The warning Petitioner received put Petitioner in the same position as all the other teachers at the same level on the salary schedule. They had not received a warning of proposed salary reduction so they knew that Respondent could not reduce their compensation below that received in the previous school year. Respondent warned Petitioner that he faced the possibility of reduced compensation for the coming year at the level of teachers in the same circumstance as he was in. By applying his years of service, stipends, and supplements to the current year’s salary schedule, Petitioner could determine how much his salary might be reduced.

That a significant reduction in salary was not a surprise is illustrated by Petitioner’s argument at Level III of his first grievance that “Mr. Brajenovich is likely to be subject to a significant reduction of salary in the future, due to his reassignment.” Petitioner was aware that a reduction in pay was quite possible. Because Petitioner actually knew more than 45 days before the first day of instruction that he could receive a serious reduction in pay to the level of a teacher/coach, Respondent had the ability to reduce Petitioner’s compensation to that level. Further, since a reasonable teacher in Petitioner’s position would know that he could receive a serious reduction in pay to the level of a teacher/coach, Respondent had the ability to reduce Petitioner’s compensation to that level.

Conclusion

The Petition for Review should be denied. Petitioner had sufficient warning of a possible reduction in his compensation more than 45 days before the first day of instruction.

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 over Petitioner’s claims under Texas Education Code section 7.057.

2. Petitioner’s grievance that is the subject of this case was timely filed. Petitioner was not required to appeal his first grievance to maintain the second grievance.

3. Texas Education Code section 21.160 allows teachers to resign from their contracts by giving written notice not later than the 45th day before the first day of instruction for the following school year.

4. The purpose of Texas Education Code section 21.160 is to give teachers a meaningful opportunity each year to decide whether they wish to continue employment with the district.

5. If school districts could reduce teachers’ compensation without sufficient warning, teachers would not have a meaningful opportunity to decide whether they wished to continue employment in violation of Texas Education Code section 21.160.

6. A sufficient warning must be both formal enough and specific enough to give teachers a meaningful opportunity to decide whether to continue employment with a district. Tex. Educ. Code § 21.160.

7. To be sufficiently formal a warning must come from a high district source such as the board of trustees, the superintendent, or the office of human resources and be in writing or be delivered at a meeting called for the purpose of informing teachers of a possible reduction in salary. Tex. Educ. Code § 21.160.

8. To be sufficiently specific, a warning would result in a teacher knowing the amount salary could be reduced or would result in a reasonable teacher knowing the amount salary could be reduced. Tex. Educ. Code § 21.160.

9. In the present case, the warning was sufficiently formal and specific that Petitioner knew that there was a possibility that his salary could be reduced to the level of a teacher with his years of experience and with the applicable supplements and stipends.

10. In the present case, the warning was sufficiently formal and specific that a reasonable teacher would know that there was a possibility that his salary could be reduced to the level of a teacher with Petitioner’s years of experience and with the applicable supplements and stipends.

11. Respondent did not violate Texas Education Code section 21.160 or Petitioner’s contract by reducing Petitioner’s compensation.

12. The Petition for Review should be denied.

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

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

SIGNED AND ISSUED this ______ day of ___________________, 2009.

______________________________________

ROBERT SCOTT

COMMISSIONER OF EDUCATION

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[1] See 19 Tex. Admin. Code §157.1073(h); Bosworth v. East Central Independent School District, Docket No. 090-R1-803 (Comm’r Educ. 2003).

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