Alaniz v. Donna ISD 029-R10-02-2018



DOCKET NO. 029-R10-02-2018ROGELIO ALANIZ§BEFORE THE §§v.§ COMMISSIONER OF EDUCATION§DONNA INDEPENDENT§SCHOOL DISTRICT§ THE STATE OF TEXASDECISION OF THE COMMISSIONERStatement of the CasePetitioner, Rogelio Alaniz, complains of actions and decisions of Respondent, Donna Independent School District (“Donna ISD”). Merle Dover is the Administrative Law Judge appointed by the Commissioner of Education to hear this cause. Petitioner is represented by Kevin Lungwitz, Attorney at Law, Austin, Texas. Respondent is represented by Tony Torres, Attorney at Law, Edinburg, Texas.The primary issue in this case concerns whether Donna ISD’s reduction of Petitioner’s salary by $8780 at the start of the school year and after the date Petitioner could have resigned without penalty violated Petitioner’s Chapter 21 contract of employment and/or the Texas education laws. The question concerns whether Petitioner’s supplemental duties were part of his contract. The Administrative Law Judge issued a Proposal for Decision recommending that Petitioner’s appeal be granted because Petitioner’s supplemental duties were included in his Chapter 21 teaching contract and Respondent breached his contract by reducing his compensation after the last day that a teacher could resign without penalty.Findings of FactAfter due consideration of the record and matters officially noticed, it is concluded that the following Findings of Fact are supported by substantial evidence according to the standards set forth in Texas Administrative Code section 157.1073(h):Petitioner was employed as a high school teacher and Athletic/P.E. Coordinator for Donna ISD.Petitioner’s base teacher salary was $61,798.00 plus $13,980.11 for additional assignments, totaling a salary of $75,778.11 for the 2016-2017 school year.Petitioner began performance under the 2017-2018 contract on August 14, 2017.On August 17, 2017, the first day of instruction in the 2017-2018 school year, Respondent informed Petitioner that his Athletic & PE Coordinator stipend was reduced from $6000 to $3600; his 3 Extra Athletic Days stipend was reduced from $730.11 to $600; his duties as Stadium Supervisor and Hy-Tech-Operator at a compensation of $2,750 and $3,500 respectively were eliminated; and the Video-Athletics stipend of $1000 remained the same. For 2017-2018, Petitioner’s base teaching salary remained the same; however, his compensation for additional assigned duties was reduced, reducing his total salary by $8780, an over 11% reduction.Petitioner’s salary reduction occurred after Petitioner had begun performance of his contract and after the penalty free resignation period which ends 45 days before the first day of instruction.DiscussionLimitation on When a District May Reduce Teacher PayThe Commissioner and the courts have consistently held that a school district cannot reduce an educator’s salary after the 45th day prior to instruction—when the educator can no longer unilaterally resign—unless the school district has warned the educator about the possibility of salary reduction at the time of contracting. Notice that a teacher’s salary may be reduced is sufficiently specific if it “would result in a reasonable teacher knowing the amount the salary could be reduced.”The ability to unilaterally resign is highly significant to teachers. A teacher who resigns without the school district’s approval after the Education Code’s deadline for penalty free resignation could face disciplinary action by the State Board for Educator Certification for contract abandonment and sanctioning of the educator’s teaching certificate. After the 45th day before instruction begins, the teacher is legally bound to fulfill the contract and the school district cannot unilaterally change the material terms of the teacher’s contract.The purpose for the limitation on a district’s ability to reduce a teacher’s salary after the penalty free resignation date is to provide teachers an annual opportunity to determine whether they wish to continue employment with the district. Compensation is a very significant consideration when one is determining whether to continue an employment relationship. Not knowing whether or not the teacher would continue to receive at least the same salary as the year before places the teacher in the position of not having sufficient information to determine whether to remain employed with the district for another year. Prohibiting pay cuts and at least maintaining the same level of compensation after teachers can no longer unilaterally withdraw from their contracts gives teachers a meaningful opportunity to determine whether they wish to remain at a school district with at least the current level of compensation. Two Ways to Employ Teacher with Supplemental DutiesIn previous decisions, the Commissioner has explained that there are various ways to structure the employment relationship between school districts and employees who have paid supplemental duties. When a district wants to assign supplemental duties to a teacher, the district has the option to either employ the person as a teacher with a Chapter 21 contract and a separate agreement for supplemental part-time duties or the district can employ the person for one position with multiple duties specified in one unified Chapter 21 employment contract.There are pros and cons to both methods. Under the first approach, the district might be able to terminate an employee’s supplemental duties, while retaining the person as a classroom teacher and the teacher may resign their supplemental duties without resigning her classroom teacher position. The separate agreement pertaining to supplemental duties can be specified as at-will, allowing either party to end the agreement for any reason that is not illegal or no reason. For example, the district could employ the person under a Chapter 21 contract for a full-time classroom teaching position and provide a separate contract for supplemental part-time duties as a football coach. Since a coach is not included in the Chapter 21 definition of teacher, the separate agreement would not be a Chapter 21 contract subject to the TCNA requirements. In order to be enforceable, it is critical that either party could unilaterally terminate the supplemental duties. However, the teaching duties could only be terminated by following Chapter 21 procedures.Under the second approach, using the same example as above, the person is employed as teacher/coach in a single unified Chapter 21 contract. The supplemental coaching duties are not severable and neither party may terminate them without triggering the provisions of Chapter 21 the same as if the teaching duties were terminated.At the core of the issue before the Commissioner in this case is whether the supplemental duties performed by Petitioner for which he received a stipend are covered by his Chapter 21 contract or were considered at-will.Petitioner’s ContractPetitioner was employed by Donna ISD for several years under a term contract. For the past several years he worked as a high school communications teacher and performed additional assignments as Athletic/PE Coordinator, HY-Tech Operator, Stadium Supervisor, Video-Athletics and other assignments for which he received additional stipends. The additional assignment stipends totaled $11,135.10 in 2014-2015, $12,183.70 in 2015-2016 and $13,980.11 in 2016-2017. In August 2017, after Petitioner had begun performance on his contract, Petitioner was informed that his base salary would remain the same but his stipends had been reduced, lowering his total compensation by $8780.Petitioner’s contract refers to additional assignments in several places:5.1: You agree to perform the duties of your assigned positions . . . .5.3: Assignment/Reassignment. You understand that the District has the right to assign or reassign you to positions, duties, or additional duties and to make changes in responsibilities, work, or transfers, at any time during this Contract.5.4: Supplemental duty. You understand that this Contract does not cover assignments of or payments for supplemental duties. This Contract does not create a property right to continued employment in any supplemental duty. If you are assigned to a supplemental duty, the start and end dates for the supplemental duties may be different from the start and end dates under this Contract.6.1: Your salary includes consideration for all assigned duties, responsibilities, and tasks, regardless of the actual number of hours or days . . . that you work during this Contract.These paragraphs are contradictory and create ambiguity. Although paragraph 5.4 states that Petitioner’s contract “does not cover assignment of or payments for supplemental duties,” paragraph 5.4 also provides that the district may assign supplemental duties, paragraph 5.3 states that the District has the right to assign or reassign additional duties at any time, and paragraph 6.1 indicates that the salary includes all assigned duties. Paragraph 5.1 refers to positions, plural, suggesting that the contract covers more than one position.Petitioner’s salary appears on a single document referred to by Respondent as a Pay Schedule. Petitioner’s Pay Schedule for 2016-2017 is set out below:Rogelio AlanizBASE PAY8-12-16::06-02-2017::Teacher High School :: Donna High SchoolPay Cycle:MonthlyChecks:12Fist Check:09-20-2016Last check:08-18-2017Compensated Days:187Non-Duty Days:0.0Pay Grade:TeacherStep:Daily Rate:$330.4706Hourly Rate:N/AAuthorized Hours:40.0Effective Pay:$61,797.99STIPENDSEmployee AssignmentEffective BeginEffective EndAnnual PayDaysDailyAthl&PE Cord – HS08-12-201606-02-2017$6,000.00187$32,08556Athletic Extra Days08-12-201606-02-2017$730.11187$3.90433Hy-Tech-Operator HS08-12-201606-02-2017$3,500.00187$18.71658Video-Athletics-HS08-12-201606-02-2017$1,000.00187$5,34759Stadium Supervisor08-12-201606-02-2017$2,750.00187$14.70588TOTAL PROJECTED SALARYEffective Pay:$61,798.00Employee Assignment Stipend$13,980.11Total Projected Salary$75,778.11Paragraph 6.1 of Petitioner’s contract states that “[y]our salary includes consideration for all assigned duties.” The Pay Schedule sets out base pay, stipends, and Total Projected Salary. The separate elements of his pay were presented to Petitioner as one package. There is nothing on the Pay Schedule or in the contract itself that would lead a reasonable person to believe that Petitioner was free to accept or reject any portion of that document. Petitioner’s teaching duties and supplemental duties are encompassed in one contract.On the first day of instruction in 2017-2018, Petitioner was informed that his Athletic & PE Coordinator stipend was reduced from $6000 to $3600; his 3 Extra Athletic Days stipend was reduced from $730.11 to $600; his duties as Stadium Supervisor and Hy-Tech-Operator at a compensation of $2750 and $3500 respectively were eliminated; and the Video-Athletics stipend of $1000 remained the same. These unilateral changes by the District amounted to an 11% reduction in pay of $8780. These changes are considered unilateral changes by the District because Petitioner was never given a meaningful opportunity to reject them since they were presented to him after his performance under the contract had already begun. Petitioner contends that all of his assigned duties are covered by the contract and that he was entitled to be informed of any reduction in his total compensation at least 45 days before the first day of instruction.Respondent’s RationaleRespondent contends that paragraph 5.4 is the crucial paragraph to the issue in this case. Respondent relies on a prior Commissioner ruling in Johnson v. Luling Independent School District. One of several different issues in Luling was whether a high school English teacher’s supplemental duties as UIL Coordinator were covered by the Chapter 21 term contract or were in an at-will capacity. The contract in that case stated: This contract does not cover assignments of or payments for supplemental duties. This contract does not create a property right to continued employment in any supplemental duty.The Commissioner concluded that the UIL duties were not included in her written employment contract, were assigned separately, and were at-will. Thus, the Commissioner did not have jurisdiction over her supplemental duties claims.Petitioner’s AnalysisPetitioner relies on the Commissioner’s decision in Salinas v. Roma Independent School District, as the case most similar to his situation. Salinas had a written contract for 1993-1996. In 1994-1995 and 1995-1996, he served as a high school assistant band director and received a salary of $42,756. He received another term contract for 1996-1999. On the first day of instruction in 1996, Salinas was informed that he was reassigned to an intermediate school and would no longer serve as assistant band director. His salary was reduced to $35,350. Salinas contended that his salary could not be reduced after the penalty free resignation period. Salinas’s contract stated:This contract does not cover any payments for supplemental duties. Any such payments are not part of the contractual salary. Supplemental duties may from time-to-time be assigned for some of which stipends are paid according to the District’s supplemental salary schedule. No property right of continued employment exists in such supplemental duties, and such assignments may be terminated for any reason or no reason, at the sole discretion of the district.Reasoning that because the contract is ambiguous as to whether supplemental duties are covered by the contract and contract ambiguities are decided against the drafter, the Commissioner found that the assignment as assistant band director was a supplemental duty governed by the contract and Salinas was entitled to the same pay as he had received the prior year.Petitioner also compares his situation to that of the teacher in Bledsoe v. Huntington Independent School District. Bledsoe was employed as a teacher under a term contract. He was also given a memo of understanding wherein he agreed to perform additional duties as the Social Studies department chair and to teach one additional class for additional compensation. The two documents together constituted his contract. The memo of understanding contained a provision that stated it was for that year only and did not imply continuation in future years. On the first day of instruction, he was told that he would not receive the stipend he had received the previous year, thereby reducing his total compensation. Petitioner was not informed that he would not receive the stipend and that his total compensation would be reduced before the 45th day before the first day of instruction the following year. The Commissioner ruled that the principle that a school district may not reduce an educator’s salary after the date that an educator can resign employment without penalty applies to total compensation, not to each individual element of compensation, and that Bledsoe was entitled to the same compensation he had received the previous year. Petitioner argues that his additional assignments as Athletic & PE Coordinator, Stadium Supervisor and Hy-Tech-Operator are comparable to Salinas’s assistant band director duties and to Bledsoe’s department chair duties and the district should not be able to reduce his compensation for these additional assignment without meaningful notice for the same reasons.Is There a Difference Between an Additional Assignment and a Supplemental Duty?The complexity of this case stems from the lack of definition for the terms “assignment,” “supplemental duty,” and “additional duties” as used in the contract itself. Without a definition of these terms, the Petitioner’s contract of employment is ambiguous. Respondent contends that Petitioner’s contract is clearly distinguishable from the Salinas contract that the Commissioner determined was ambiguous as to supplemental duties. In Salinas, the Commissioner construed the contract against the district because the specific contract provision gave the district the unilateral authority to assign supplemental duties, to set the compensation, and to terminate the assignment of supplemental duties at will. Respondent contends that: The Contract in question is clear that Donna ISD does not have the unilateral authority to assign and terminate “supplemental duties.” When Section 5.4 is reconciled with the preceding sections, it is abundantly clear that supplemental duties are distinguished from the core duties described in Sections 5.1 thru [sic] 5.3. A review of the contract shows that Donna ISD can assign “additional duties” to Mr. Alaniz’s core duties as an high school teacher or assign him to another position, which is the norm in education contracts. Moreover, the Contract distinguishes additional and supplemental duties. Supplemental duties are set out in a separate provision and within this provision there is no ambiguity allowing Donna ISD to unilaterally assign supplemental duties without justly compensating Mr. Alaniz.Respondent’s explanation restated above does nothing to provide additional clarity to the contract. The term “core duties” does not appear anywhere in the contract. Setting out supplemental duties and additional duties in separate paragraphs does not clarify either of these terms. Finally, the cited language clearly indicates that the district does have unilateral authority to assign supplemental and additional duties and gives no indication that Petitioner has the ability to accept or reject the additional or assigned or supplemental duties or how much, if anything, he would be compensated for such duties. If the language of a contract is subject to two or more reasonable interpretations, it is ambiguous. Petitioner’s term contract was not clear whether supplemental duties were included. At the very least, the contract is ambiguous as to this issue. Under the doctrine of contra proferentem, an ambiguous contract will be interpreted against the drafter. Thus, it must be concluded that Petitioner’s Chapter 21 term contract includes the supplemental duties.The Commissioner concluded in Guier v. Dallas Independent School District, that the district could not decrease Guier’s compensation after the last penalty free resignation day, stating:The fact that Petitioner received a salary supplement in the year (or years) preceding 1988-89 does not constitute an implied or de facto agreement by the school district to continue the salary supplement. Allen v. Lumberton ISD, 746 S.W.2d 524, 526 (Tex. App.—Beaumont 1988), rev’d on other grounds sub nom, Bowman v. Lumberton ISD, 746 S.W.2d 524, 526 (Tex. 1990). However, a fundamental requirement of a contractual obligation is that it be mutually binding. Petitioner’s contract allowed the district to reduce salaries from one year to the next only because it allowed the teacher to reject the new contract at the new salary. Respondent attempted to impose a unilateral reduction in salary at a time when Petitioner no longer had meaningful options. For this reason Petitioner’s appeal must be granted.Similarly, Petitioner’s appeal should be granted due to Respondent’s unilateral reduction of Petitioner’s salary after the penalty free resignation period had expired.Duty Free Lunch and Planning PeriodIn 2016-2017, Petitioner was given an additional planning period in order to perform his duties as Athletics & PE Coordinator. In 2017-2018, in addition to the salary reduction, the additional planning period was eliminated. Pursuant to Texas Education Code section 21.404, every classroom teacher is entitled to a planning period of no less than 45 minutes. “During a planning and preparation period, a classroom teacher may not be required to participate in any other activity.” The Commissioner has held that there is no exception to the duty-free planning period:A teacher and a school district cannot contract so that a teacher will not have planning and preparation time. . . . This is not a suggestion. It is a mandate.Although Petitioner may have a righteous claim that the district violated Texas Education Code section 21.404 by requiring him to perform the duties required of the Athletic & PE Coordinator position during his duty-free planning period, Petitioner failed to state this complaint in his initial grievance. A grievant is required to follow the district grievance policy. Respondent’s policy requires that the grievance be filed within 15 days of when the employee first knew, or with reasonable diligence should have known, of his complaint. Failure to follow the policy timelines is a failure to exhaust administrative remedies and grounds for dismissing the claim. Petitioner argues that the school district waived the exhaustion requirement because the Board questioned him about his need to perform his duties as Athletic & PE Coordinator during his planning period during his Level III grievance hearing. The Texas Supreme Court addressed the issue of waiver in Van Independent School District v. McCarty. The Court held that hearing evidence on the merits of an issue does not waive jurisdictional arguments. Jurisdiction cannot be conferred by waiver.Accordingly, Petitioner’s claim concerning the need for him to perform his duties as Athletic & PE Coordinator during his planning period is dismissed for failure to exhaust administrative remedies and lack of jurisdiction.ConclusionFundamental to a contract obligation is the prerequisite that it be mutually binding on the parties. Petitioner’s contract seems to be indistinguishable from Salinas’s contract and suffers from the same ambiguity and unilateral modification of compensation by the district as in both Salinas and Bledsoe. Accordingly, Petitioner’s contract should be interpreted in his favor as the non-drafter and Petitioner’s compensation should not have been reduced without notice after the penalty free resignation period.Conclusions of LawAfter due consideration of the records, matters officially noticed, and the foregoing Findings of Fact, in my capacity as the Commissioner of Education, I make the following Conclusions of Law: The Commissioner has jurisdiction over this cause under Texas Education Code section 7.057(a)(2)(B).Pursuant to Texas Education Code section 21.210, a teacher may resign employment without penalty no later than the 45th day before the first day of instruction of the new school year.A school district cannot unilaterally reduce a teacher’s compensation after the last day that the teacher can resign without penalty.Respondent failed to notify Petitioner that his compensation was reduced before the conclusion of the penalty free resignation period.An ambiguous contract is interpreted against its drafter.Petitioner has a unified contract that included both teaching and supplemental duties.Respondent breached Petitioner’s contract by reducing his compensation after the conclusion of the penalty free resignation period.Petitioner should be reimbursed $8780 for the reduced compensation he received for the 2017-2018 school year.ORDERAfter 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 ORDER that Petitioner’s appeal be, and is hereby, GRANTED.SIGNED AND ISSUED this ______ day of July 2018.__________________________________MIKE MORATHCOMMISSIONER OF EDUCATIONSigned and issued on July 13, 2018 by Mike Morath, Commissioner of Education ................
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