BEFORE A TEA CERTIFIED HEARING EXAMINER



DOCKET NO. 213-LH-0512

HOUSTON INDEPENDENT § BEFORE THE HEARING EXAMINER

SCHOOL DISTRICT, §

Petitioner, §

v. § STATE OF TEXAS

§

WILLIAM ANDREWS, §

Respondent § TAMMYE CURTIS JONES

RECOMMENDATION FOR DECISION

I.

STATEMENT OF THE CASE

Respondent, William Andrews (“Respondent” or “Andrews”) appeals the decision of the Houston Independent School District Board of Trustees, (“Petitioner”, the “District”, or “HISD”) to nonrenew his one-year term contract of employment. Petitioner proposed to nonrenew the 2011-2012 one-year teacher term contract of Respondent pursuant to Texas Education Code 21.206(a), HISD Board Policy Sections DFBB (LEGAL and LOCAL), and Section 12 of Respondent’s one-year term contract. Respondent filed a timely request for a hearing pursuant to Chapter 21 of the Texas Education Code. The matter was assigned to Independent Hearing Examiner (“IHE”), Tammye Curtis-Jones, duly appointed by the Texas Education Agency (“TEA”) and the hearing was held before the IHE on July 22, 2012. Petitioner was represented by Merri Schneider-Vogel of Thompson & Horton, LLP. Respondent was represented by Jason Fowell of Tritico & Rainey, PLLC. By waiver duly filed, the parties agreed to extend the 45 day time frame for a decision. The deadline for the Recommendation for Decision is August 11, 2012. The parties have filed proposed findings of fact and conclusions of law. To the extent not adopted herein, such requested findings and conclusion are denied. Citations to the evidence are not exhaustive, but are intended to indicate some of the grounds for the Findings of Fact.

II.

PROPOSED FINIDNGS OF FACT

After due consideration of the evidence and matters officially noticed, the following Findings of

Fact have been proven by a preponderance of the evidence:

1. Respondent was employed by HISD for the 2011-2012 school year under a one year teacher term contract in accordance with Chapter 21 of the Texas Education Code. (HISD Exh. 1)

2. By letter dated April 13, 2012, Respondent was notified of HISD’s intent to nonrenew his contract. (HISD Exh. 2)

3. Respondent received notice of HISD’s intent to nonrenew his contract on April 13, 2012. (Id.)

4. HISD’s reasons for nonrenewal as outlined in HISD Board Policy DFBB (LOCAL) included the following:

No. 1. Deficiencies pointed out in observation reports, appraisals or evaluations, supplemental memoranda, or other communications.

No. 2. Failure to fulfill duties or responsibilities.

No. 4. Inability to maintain discipline in a nay situation in which the employee is responsible for the oversight and supervision of students.

No. 5. Insubordination or failure to comply with official directives.

No. 8. Conducting personal business during school hours when it results in neglect of duties.

No. 10. Reduction in force because of a program change.

No. 16. Failure to meet the District’s standards of professional conduct.

No. 22. Failure to maintain an effective working relationship, or maintain good rapport with parents, the community, or colleagues.

No. 24. Behavior that presents a danger of physical harm to a student or to other individuals.

No. 27. Falsification of records or other documents related to the District’s activities.

No. 29. Intentional or deliberate misrepresentation of facts to a supervisor or other District official in the conduct of District business.

No. 34. Any reason that makes the employment relationship void or voidable, such as a violation of federal, state, or local law.

(Id.)

5. During the 2011-2012 school year, Respondent was assigned to Marshall Middle School (“MMS” or “Marshall”) as a Special Education teacher. (Tr. p. 215)

6. Michael Harrison (“Harrison”) is the principal of Marshall and has been the principal since the 2010-2011 school year. (Tr. p. 110)

7. Respondent has been teaching at Marshall for fifteen years and in HISD for fifteen years. (Tr. p. 215)

8. Respondent has a B.S. in Social Science and an M.B.A in Marketing. (Tr. p. 214)

9. In addition, Respondent is certified to teach Special Education and Early Childhood (EC) through 12th grade. (Id.)

10. For the past few years, Respondent has been the behavior teacher and the Special Ed Resource Math teacher. (Id.)

11. Through his employment with HISD and his undergraduate studies, Respondent obtained extensive certification and training dealing with students with behavioral disabilities. (Tr. p. 217)

12. Respondent is trained to know techniques to deal with out-of-control behavior, physical behavior, when the students are confrontational, combative, violent, verbally abusive and a danger to themselves and others. This includes de-escalation situations when students are verbally abusive, using profanity, swearing and threatening. (Tr. pp. 217-218)

REDUCTION IN FORCE BECAUSE OF PROGRAM CHANGE

13. The population of special education students in HISD has dropped over the past several years from 20,000 to 16,000. (Tr. p. 29)

14. As a result of the reduction in the number of special education students and budget issues, a decision was made that the special education department would look at the staffing patterns at schools annually. (Id.)

15. Harrison, the principal of Marshall, learned that he was going to lose a special education teacher position on his campus. (Tr. p. 112)

16. This reduction was due to a decrease in the number of special education students in HISD. (Tr. p. 28; HISD Exh. 3)

17. The Special Education Manager for HISD, Toni Pompa-Rodriguez (“Rodriguez”), provided Harrison with an indication of how many special education teachers he was going to have to lose. (Tr. p. 30)

18. HISD Superintendent, Dr. Terry Grier, recommended a reduction in force (RIF) to include employees on term contracts and determined that a program change was required due to the declining special education population in HISD. (HISD Exh. 3)

19. At its April 12, 2012, Board meeting, the HISD Board of Education determined the employment areas to be affected by the reduction in force due to a program change in accordance with Policy DFFB (Local). (HISD Exh. 3 and Exh. 21)

20. An employment area that was identified by the reduction in force was a middle school special education resource teacher at Marshall. (Tr. pps. 113-114; HISD Exh. 3)

21. Harrison was familiar with the District’s RIF Policy. (Tr. p. 116)

22. Harrison determined, based on policy, that the employment area of special education resource teacher at Marshall as an employment area to be affected by the reduction in force. Harrison made this determination because there was only one Behavior Adjustment Center (BAC) teacher and one Life Skills teacher on his campus and he could not eliminate those positions because he was still going to have a BAC program and Life Skills program at Marshall, whereas he had several special education resource teachers. (Tr. pps. 117-119)

23. Board Policy DFFB (Local) provides that the Superintendent or designee shall apply the criteria to the employees within the affected employment area based on the employee’s assignment at the time the Board approves the employment area(s) affected by the reduction in force. (HISD Exh. 21, p. 2)

24. Pursuant to Board Policy DFFB (Local), Harrison identified the special education resource teachers who were employed on either a term contract or a continuing contract, and applied the criteria contained in Policy DFFB (Local) to those employees. (Tr. pps. 120-122)

25. In accordance with Board Policy DFFB (Local), the initial criterion to apply to the persons in the identified employment area is performance. (HISD Exhs. 21, 17)

26. Based on a review of that criterion, Respondent had the lowest ratings on his performance evaluation of the four special education resource teachers who were employed either on a continuing or term contract at Marshall. (HISD Exh. 16, Tr. p. 121)

27. Harrison also considered written reprimands in Respondent’s personnel file. (Tr. p. 121)

28. After Respondent was identified as having the lowest performance evaluation rating of the special education resource teachers, Harrison did not consider any other criteria listed in Policy DFFB (Local) (Tr. pp. 121-122, HISD Exh. 17 at p. 2, HISD Exh. 21)

PERFORMANCE

29. Prior to learning that the Superintendent had determined that a program change was necessary due to a loss of enrollment of special education students, Harrison had considered recommending Respondent for nonrenewal for several other reasons listed in Board Policy DFBB (Local). (Tr. p. 122)

30. On September 14, 2011, Harrison conducted a walkthrough of Respondent’s classroom wherein Harrison observed Respondent his computer and not engaging the students in his class. After Harrison entered the room, Respondent got up to work with the students. (Tr. pp. 123-124; HISD Exh. 6)

31. Harrison discussed his concern with Respondent who indicated that he was on his conference period at the time and that he (Respondent) was not required to teach during this time. (Tr. p. 124)

32. Respondent said he was working on Medicare for one of the students on the computer as some of the students receive Medicare. Respondent is not on Medicare. (Tr. pp. 171, 246-247)

33. On October 14, 2011, Respondent signed the name of a speech therapist on an official Admission Review and Dismissal (ARD) document indicating that the speech therapist (Ms. Richardson) had attended the meeting in person when she had not. (Tr. pp. 130-131; HISD Exh. 7)

34. Training conducted in Houston ISD stresses the importance of documenting what actually occurs in ARD deliberations, including who is present at the ARD. (Tr. p. 38)

35. Respondent was not told in training that he could not sign someone else’s name by permission. (Tr. pp. 244-245)

36. According to Rodriguez, who was not at the ARD, the speech therapist (Ms. Richardson) was not present at the ARD meeting. (Tr. pp. 36-37)

37. Rodriguez knew that the speech therapist (Ms. Richardson) asked Respondent to place her signature on the document for her. (Tr. pp. 50-51)

38. On January 5, 2012, Harrison gave Respondent a written directive to complete all ARD paperwork in an appropriate and timely manner in compliance with district policies and procedures. (HISD Exh. 7)

39. Respondent was responsible for the ARD paperwork for a student and was required to close out the ARD within 24 hours of the ARD. (HISD Exh. 8)

40. HISD uses the EASY IEP software program and Respondent attended training on EASY IEP software program at which time teachers were informed that they had to complete the paperwork within 24 hours of the ARD. (Tr. pp. 33-35)

41. Respondent failed to complete the paperwork in a timely manner. Respondent believed he had five days to complete the paperwork. (Tr. p. 133; HISD Exh. 8)

42. There were many errors in the paperwork that was completed by Respondent. (Id.)

43. Student A testified that Respondent yelled at Student B while both students were in ISS (In-School Suspension). Student A recorded the incident on an MP3 player. (Tr. pp. 60, 63-64, 66-67; 72, 75 HISD Exh. 10).

44. Student A and Student B are good friends. (Tr. p. 75) Both have multiple referrals to the grade-level administrator. (Tr. p. 185)

45. Student B had told other students to “shut up” and Respondent had instructed Student B not to say “shut up” to other students. Student A did not find it appropriate for other students to yell “shut up”. (Tr. p. 185)

46. On the day of this incident, Respondent was instructed to go to ISS since a number of teachers were absent. Respondent had to take his special-ed resource math class to ISS. (Tr. p. 227)

47. Respondent was upset with Student A because Student A would not sit facing forward. (Tr. pp. 77-78)

48. Respondent had to redirect Student B as Student B was being mischievous. Student B was told to sit at the front of the class and Student B did not want to sit there. (Tr. p. 228)

49. Respondent threw a chair into the corner of the classroom. (Tr. p. 63; HISD Exhs. 22, 10)

50. Respondent screamed at Student B and then grabbed him by the shirt. (Tr. p. 62; HISD Exhs. 22, 10)

51. Respondent became angry at Student B and told him that he was sick of him. (HISD Exh. 10)

52. Respondent stated that he was not angry at one or more students and was not screaming on the date of the incident with Student A and Student B on December 16, 2011. (Tr. p. 256)

53. On December 16, 2011, Respondent got very close in proximity to Student A’s face. When Student A asked Respondent to get out of his face, Respondent said that he could get in his mama’s face if he wanted to. Student A was bothered by Mr. Andrews’ statement. (Tr. pp. 68-69)

54. Harrison investigated the incident and concluded that Respondent had treated Student B in an aggressive and derogatory manner. (Tr. p. 140)

55. When Harrison shared the results of his investigation with Respondent, Respondent’s response was: “I find it quite hilarious, even though I know it’s serious.” When asked again if he had a response, Respondent indicated “I have no response at this time.” Respondent never informed Harrison that his students were hard to control, misbehaved, or anything to that effect. (Tr. pp. 138-139; HISD Exh. 9)

56. Harrison issued directives to Respondent that included refraining from provoking students to anger through verbal and nonverbal communication, maintaining a high level of professionalism when dealing with confrontational situations, referring all incidents to an administrator before a situation escalates into a physical altercation and following appropriate school-wide and district policies and procedures when addressing student misconduct. (HISD Exh. 9)

57. On or about February 21, 2012, Respondent was clearing the hallway and confronted Student E and Student D in the stairwell wherein he asked them to stop engaging in inappropriate behavior. Student E cursed Respondent. (Tr. P. 221)

58. Respondent followed the students in a classroom. While going to the classroom, Respondent and Students E and D were arguing as they entered, which alarmed Ms. Angela Casillas, who got up to see what was going on. (Tr. p. 99; HISD Exh. 23)

59. Respondent was yelling at Student E. When Student D, a female student who was also present, was walking up toward the middle of Respondent and Student E and was telling them to stop, Respondent used his hand and pushed Student D away and continued to yell. (Tr. pgs. 94-97, 101-102; HISD Exh. 23)

60. The eyewitness, Ms. Angela Casillas, who was present when the incident occurred, testified that she was most concerned with Respondent’s tone and his persistence of the confrontation as she thought that Respondent escalated the situation. (Tr. pp. 95-97)

61. The eyewitness, Ms. Angela Casillas, testified that Respondent pushed Student D back and out of the way of the incident between Respondent and Student E. Ms. Casillas confirmed that Student D should not have attempted to intervene in the middle (Tr. Pp. 95-97, 101-102)

62. After Respondent pushed Student D out of the way, another teacher Ms. Sanders interjected “Okay. Enough is enough” and there was discussion about what went wrong. (Tr. P. 97)

63. Mr. Harrison investigated the incident concerning Respondent and Students D and E, concluding that Respondent engaged in a verbal confrontation with Student E in a way that provoked unnecessary anger and frustration on both parties and that Respondent pushed Student D and this escalated the situation further. Mr. Harrison issued directives regarding Respondent’s interactions with students. (Tr. pgs. 140- 144; HISD Exh. 11)

64. When Mr. Harrison discussed the results of his investigation regarding the incident with Students D and E, Respondent merely “took the Fifth” and did not provide any substantive response or justification for his actions. (Tr. p. 142)

65. In February 2012, Respondent was assisting with another teacher’s (Ms. Johnson) homeroom class where he’d given instructions for the class not to move from their seats. Student C disrupted class when he moved to a different seat and was redirected by Respondent to the door outside the class. (Tr. pp. 81, 87-88, 235-236; HISD Exhs. 12, 22)

66. Respondent grabbed Student C’s backpack and started walking to the door so that Student C would follow him to the door. (Tr. pp. 236-237)

67. Mr. Harrison investigated the incident involving Student C and Respondent and concluded that Respondent grabbed and slapped Student C upside his head. Mr. Harrison determined that Respondent’s conduct was unacceptable and violated Standard 3.2 of the Code of Ethics, contained in Board Policy DH. (Tr. pp. 144-146; HISD Pet. Exhs. 12, 19)

68. Mr. Harrison discussed the results of his investigation of the incident with Student C with Respondent. Respondent provided no substantive response. Respondent did not indicate that Student C had been noncompliant or that Student C’s behavior had been uncontrollable. (Tr. pp. 145-146)

69. Former supervisors of the Respondent have pointed out the same deficiencies documented by Mr. Harrison. These include failure to provide individualized instruction during instruction time, screaming at students, and exposing students to potential physical and or emotional harm. (Tr. pgs. 159-161; HISD Exhs. 14, 15, 16).

70. Mr. Harrison conducted a conference for the record with Respondent on April 10, 2012, at which time Mr. Harrison shared with Respondent that he was closing his position due to a program change requiring a reduction in force. He also shared that he was concerned with several performance issues. Following the conference for the record, Mr. Harrison sent Respondent a Conference Summary in which he informed Respondent in writing that he was recommending that his contract be nonrenewed. (Tr. pp. 146-150; HISD Exh. 25)

71. I find that the decision by Mr. Harrison, which was approved and further recommended by the Superintendent of HISD and ultimately approved and ratified by the Board of the Houston Independent School District to nonrenew the contract of Respondent, Respondent, was not arbitrary, capricious or unlawful, and was supported by substantial evidence.

III.

Discussion

A nonrenewal needs to be based on a school board’s pre-established policy reasons. Tex. Educ. Code §21.203(b). A pre-established policy reason is valid as long as it is not arbitrary and capricious. Tarrant v. Clear Creek ISD, 238 S.W. 3d 445, 451 (Tex. App.-Houston [1st Dist.] 2007 (no pet.) The District does not have to satisfy the good cause threshold. Kinnard v. Morgan ISD, Docket No. 177-R1-699 (Comm’r Educ 1999); Kirby v. College Station I.S.D., Docket No. 109-R1-598 (Comm'r Educ. 1998). A teacher does not have a property interest in a term contract beyond its term. Tex. Educ. Code §21.204(e). The District proved by a preponderance of the evidence that Respondent received appropriate notice of the proposal for nonrenewal and the existence of one or more of the nonrenewal reasons listed in Board Policy DFBB (Local), and therefore has met its burden to nonrenew the term contract and employment of Respondent with the District.

As to the reduction in force and program change, the District faced reduced funding and a declining special education population that necessitated a reduction in staff and the District declaring a reduction in force due to a program change. The District therefore had to address the short fall in funding and declining special education population and could do so by nonrenewing teacher contracts.

The gravamen of Respondent’s argument in opposition of the recommendation to nonrenew his one year term contract appears to be that the District improperly applied its reduction in force/program change policy to Respondent and that the selection of Respondent’s contract for nonrenewal was arbitrary, capricious and unlawful. More specifically, the Respondent argued that even though Mr. Harrison was informed that he had to lose one Special Education teacher, the District still hired Special Education teachers during the year and that not every middle school had to lose a Special Education teacher, thus Respondent should have been transferred to an open position. Respondent also argued that the District should have issued a reduction in force specifically for the Special Education program at Marshall, as opposed to a reduction in force for the entire District. Respondent further asserts that the District still has Special Education in its schools.

According to Respondent’s policy, there are two reasons for nonrenewal of a term contract due to a reduction in force. Those reasons are because of financial exigency or because of a program change. Program change is defined in Respondent’s policy as “…any elimination, curtailment, or reorganization of a program, department, school operation, or curriculum offering, including, for example, a change in curriculum objectives; a modification of the master schedule; the restructuring of an instructional delivery method; or a modification or reorganization of staffing patterns in a department, on a particular campus or Districtwide.” Respondent’s policy further provides that when a reduction in force is to be implemented, the Superintendent is to recommend to the Board for approval the employment areas to be affected. In the policy, employment areas are identified, although the list is not exclusive. An employment area that was approved was middle school special education resource teacher for Marshall Middle School.

Respondent cites Burton v. Killeen Independent School District, Docket No. 053-R2-0511 (Comm’r Educ. 2011) and Sheppard v. Killeen Independent School District, Docket No. 052-R2-0511 (Comm’r Educ. 2011) in support of his argument that the District should have applied the criteria to all Special Education teachers within the district. These cases are not controlling because in those cases, an employment area was not eliminated but a specific teaching position was eliminated. Further, in those cases, the District did not follow its policy and principals decided which employees would be included in the reduction in force based on their own subjective criteria.

In the instant matter, in accordance with District Policy and state law, Mr. Harrison made a recommendation to the Superintendent, who in turn made a recommendation to the HISD Board. Seeking the Principal’s input and recommendation to the Superintendent with respect to possible program change and budget cuts was in compliance with Board Policy and the law. See Westbrook v. Colorado Indep. Schl. Dist., Docket No. 170-R1-399 (Comm’r Educ. 1999); Rose v. Houston ISD, Docket No. 018-R2-1011 (Comm’r Educ. 2011) and Houston ISD v. Watson, Docket No. 166-LH-0411 (Recommendation for Decision July 24, 2011). Further, implementing a reduction in force by considering the needs of individual campuses as separate employment areas is not arbitrary, capricious or unlawful. Theus v. Houston ISD, Docket No. 019-R1-1011 (Comm’r Educ. 2011).

The District presented credible evidence proving that it had a policy that was applied in this case fairly and impartially according to the guidelines set. He held a term contract. Respondent was a Special Education Resource teacher which was amongst the selected employment areas on his campus. Because the campus was still going to have a life skills and a BAC program and Mr. Harrison only had one life skills teacher and one BAC teacher, those special education positions could not be eliminated. The campus had several resource teachers of which Respondent was one. In applying the criteria in accordance with policy, Mr. Harrison applied the first criteria of performance. In the area of performance, Respondent had the lowest ratings on his evaluation of the other Special Education Resource teachers. Respondent also had several written reprimands as it related to his performance deficiencies. Respondent has failed to present credible evidence to this tribunal which shows that the District did not fairly and impartially promulgate and apply its policy in this matter. Based on the evidence, Mr. Harrison’s conduct was fair, impartial, measured, and deliberative based on applicable policy/law. The Board thereafter made the final decision in this matter on nonrenewal. The recommendation for non-renewal was not arbitrary, capricious or unlawful.

In addition to the recommendation for nonrenewal based on a reduction in force due to a program change, the District identified several performance concerns related to Respondent. Some of those performance issues, include Respondent being on the computer and not engaging students in his class when Respondent contends he was handling a work-related Medicare matter for one of his students; Respondent signing the name of another person to (a speech therapist) to an ARD document; and Respondent failing to complete ARD paperwork appropriately and timely. As to these incidents, the evidence was conflicting and the District’s evidence was not persuasive.

Regarding the Respondent not engaging students in class, the Respondent asserted that he was on his conference period but working on Medicare for one of his students. The Respondent further stated that he was not on Medicare. There was no evidence presented by the District (such as a class schedule) that Respondent was not on his conference period or that he was not in fact working on Medicare for one of his students.

Regarding the Respondent signing the name of the speech therapist, there was no evidence presented by the District that it was against policy for Respondent to sign the name of another person with their permission. The District’s witness testified that she was aware that the speech therapist asked Respondent to sign her name. Respondent asserts that he was not told in training that he could not sign the name of another person with their permission and the District did not produce any evidence to prove that Respondent was told otherwise in training.

Regarding the District’s assertion that Respondent failed to complete ARD paperwork in a timely manner, again the evidence was inconclusive and reveals that there was confusion on Respondent’s behalf regarding the five day period. The evidence regarding this issue is inconclusive.

However, more serious incidents involved Respondent’s behavior with the students. Respondent had multiple incidents with students where his conduct was less than professional in dealing with confrontational situations. In an incident with one student, Respondent was screaming at a student then grabbed him by the shirt. Unknown to Respondent at the time, another student recoded the incident on his MP3 player. While Respondent stated that he was not angry and was not screaming, the evidence on the recording revealed otherwise. Respondent could be heard screaming as opposed to de-escalating the situation. In another incident, Respondent followed students from the stairwell to a classroom where he entered the classroom arguing with a student. During that incident, Respondent used his hand and pushed another student away while continuing to yell at the other student. During this incident, another teacher had to intervene and it was observed by the PTO President. In a final incident with a student, Respondent was found to have grabbed a student’s backpack and slapped the student upside his head. All incidents were investigated by campus administration and Respondent provided no substantive response for his conduct. The incidents were found to have been substantiated after investigation at the campus level. Respondent’s conduct was not consistent with the District’s Employee Standards of Conduct DH (Local) or Board Policy DFBB (Local). The evidence in these instances is credible and supports the District’s recommendation to nonrenew the term contract of Respondent.

IV.

Conclusions of Law

1. This Hearing Examiner has jurisdiction over this case under Texas Education Code Sections 21.207 and 21.251, et seq.

2. Pursuant to § 21.256(h) of the Texas Education Code, at the hearing, the school district had the burden of proof by a preponderance of the evidence.

3. This hearing was properly requested in compliance with Chapter 21, Sub-Chapter F, §21.253 of the Texas Educ. Code.

4. The Respondent, William Andrews is a teacher as defined in Sub-chapter E, §21.201 of the Texas Educ. Code.

5. The Respondent was recommended for nonrenewal pursuant Section 12 of his term contract and the authority in §21.206(a) of the Texas Educ. Code.

6. Pursuant to Texas Education Code §21.203(b), the Superintendent of HISD may declare a program change and recommend employees within the affected employment areas for nonrenewal because of a reduction in force if the District policy lists reduction in force as a pre-established reason for nonrenewal.

7. Pursuant to § 11.202(b) (6) Texas Education Code a principal may make recommendations for suspension, termination or non-renewal of a teacher’s contract.

8. The District has proven by a preponderance of the evidence that Respondent received appropriate notice of the proposal for nonrenewal.

9. The District has proven by a preponderance of the evidence the existence of one or more of the nonrenewal reasons listed in Board Policy DFBB (Local), and has therefore met its burden to nonrenew Respondent, William Andrews’ term contract and employment with the District. In particular, the District has proven reason number one, reason number two, reason number four, reason number five, reason number ten, reason number sixteen, reason number twenty-four and reason number thirty-four in District Policy DFBB (Local).

10. Seeking the principal’s input and recommendation to the superintendent with respect to possible program changes and budget cuts was appropriate and in compliance with board policy DFFB (Local) and the law. Westbrook v. Colorado Indep. Sch. Dist., Dkt. No. 170-R1-599 (Comm’r Educ. 1999).

11. HISD board policy is not arbitrary or capricious or unlawful on its face. Westbrook v. Colorado Indep. Sch. Dist., Dkt. No. 170-R1-599 (Comm’r Educ. 1999).

12. The District acted appropriately and complied with its policies and the law. The implementation of Board policy as to Mr. Andrews and his term contract was not arbitrary or capricious. Westbrook v. Colorado Indep. Sch. Dist., Dkt. No. 170-R1-599 (Comm’r Educ. 1999); VanZandt v. Port Arthur Indep. Sch. Dist., Dkt. No. 147-R10-499 (Tex. Comm’r Educ. 2000).

13. A district’s interpretation of its own policy is entitled to great deference and may not be reversed so long as it is reasonably supported by the policy’s language. Davis v. Montgomery Indep. Sch. Dist., 34 S.W. 3d 559, 565 (Tex. 2000); VanZandt v. Port Arthur Indep. Sch. Dist., Dkt. No. 147-R10-499 (Tex. Comm’r Educ. 2000).

14. Certified Hearing Examiners may include a proposal for granting relief. Tex. Educ. Code Section 21.257 (a) (2).

15. Any conclusion of law deemed to be a finding of fact is hereby adopted as such.

V.

Proposed Relief

After due consideration of the record, matters officially noticed, and the foregoing Findings of Fact and Conclusions of Law, in my capacity as an Independent Hearing Examiner, it is hereby RECOMMENDED that the Board of Trustees adopt the foregoing Findings of Fact and Conclusions of Law and announce a decision consistent therewith. It is further recommended that the Board of Houston ISD uphold the recommendation to non-renew the 2011-2012 term contract of Respondent William Andrews.

SIGNED and SUBMITTED this 6th day of August, 2012.

__________[pic]________________________

TAMMYE CURTIS JONES

Independent Hearing Examiner

CERTIFICATE OF SERVICE

I hereby certify that on August 6, 2012, a true and correct copy of the foregoing document was forwarded to the Texas Education Agency, the Houston Independent School district through its counsel of record and counsel for Respondent as follows:

VIA FASCIMILE: 713-556-6323/7269 and ELECTRONIC MAIL - TRANSMISSION:HISDSuperintendent@

Terry B. Grier, Ed.D.

Superintendent of Schools

Houston Independent School District

4400 West 18th Street

Houston, Texas 77092-8501

Telephone: 713-556-6300

VIA FASCIMILE: 512-475-3662 and ELECTRONIC MAIL - Isabel.Lozoria@tea.state.tx.us

Joan Howard Allen

Deputy General Counsel

Texas Education Agency

1701 North Congress Ave.

Austin, TX 78701-1494

Phone: (512) 463-9838

VIA FACSIMILE (713) 583-9553 and ELECTRONIC MAIL –

TRANSMISSION msv@

Merri Schneider-Vogel

Thompson & Horton, LLP

Lead Counsel for Houston ISD

3200 Southwest Freeway

Phoenix Tower, Suite 2000

Houston, Texas 77027

Telephone: (713) 554-6749

Facsimile: (713) 583-9553

Attorneys for Houston ISD

VIA FACSIMILE (713) 581-3399 and ELECTRONIC MAIL –

TRANSMISSION: jfowell@

Jason Fowell

Tritico Rainey, PLLC

Lead Counsel for Respondent

446 Heights Boulevard

Houston, Texas 77007

Telephone: (713) 581-3399

Facsimile: (713) 581-3360

Attorneys for William Andrews

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