Rafael Gallont v. Houston ISD - 019R1112017



DOCKET NO. 019-R1-11-2017

RAFAEL GALLONT § BEFORE THE

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V. § COMMISSIONER OF EDUCATION

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HOUSTON §

INDEPENDENT SCHOOL DISTRICT § THE STATE OF TEXAS

DECISION OF THE COMMISSIONER

Statement of the Case

Petitioner, Rafael Gallont, complains of the decision of Respondent, Houston Independent School District, to nonrenew his term contract. Christopher Maska is the Administrative Law Judge appointed by the Commissioner of Education to hear this cause. Petitioner is represented by Christopher L. Tritico, Attorney at Law, Houston, Texas. Respondent is represented by Blaire B. Craven and Miles T. Bradshaw, Attorneys at Law, Nacogdoches, Texas.

The principal issues in this cause are waiver and harm. Petitioner contends that he was not given proper notice of the reasons for proposed nonrenewal. Respondent denies this and contends Petitioner has waived the issue by not objecting and no harm resulted from the allegedly improper notice. Respondent is correct. Petitioner never alleged at the local level that the notice was improper. Instead, the Petitioner agreed to the admission of the exhibits and made no objection to any witness testimony on the grounds that Petitioner did not have notice of the claims. When the Board of Trustees considered the Independent Hearing Examiner’s Recommendation, Petitioner did not make a notice argument. Because Petitioner failed to raise the issue before the Independent Hearing Examiner and the Board of Trustees, Petitioner cannot raise the issue now. Further, any issue not properly noticed was tried by consent.

Even if the notice given was somehow defective, there was no harm, the Commissioner can only overturn a school board’s decision for a procedural irregularity if that irregularity was likely to lead to an erroneous decision. Petitioner knew the claims against him and presented a defense to these claims. Any error as to notice did not result in an erroneous decision.

Findings of Fact

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

1. Petitioner was employed by Respondent as a teacher under a term contract for the 2016-2017 school year.

2. On April 17, 2017, Petitioner received notice that his contract was proposed for nonrenewal.

3. The proposed nonrenewal of Petitioner’s contract was heard by an Independent Hearing Examiner under Texas Education Code Subchapter F.

4. Petitioner did not request a more specific statement of the reasons for proposed nonrenewal before the Independent Hearing Examiner.

5. Petitioner made no objection to the notice before the Independent Hearing Examiner.

6. Petitioner did not object to the admission of any evidence or to the testimony of any witness on the grounds that Petitioner was not given sufficient notice of the reasons for proposed nonrenewal before the Independent Hearing Examiner.

7. Petitioner did not object to a lack of sufficient notice before the school board when it considered the recommendation of the Independent Hearing Examiner.

8. Petitioner was not surprised by Respondent’s contentions before the Independent Hearing Examiner.

Discussion

Petitioner contends Respondent’s decision to nonrenew his term contract should be overturned because he did not receive proper notice of the reasons for proposed nonrenewal. Respondent denies this and argues that Petitioner has waived the notice issue and could show no harm even if an error concerning notice occurred.

Exhaustion of Remedies

Originally exhaustion of administrative remedies was a court created doctrine. Walls Regional Hospital v. Altaras, 903 S.W.2d 36 (Tex. App.-Waco 1994, no writ). As the Commissioner held in Havel v. Gonzales Independent School District, Docket No. 134-R3-189 (Comm'r Educ. 1992), the doctrine of exhaustion of administrative remedies ensures that an administrative body has the first opportunity to discover and correct its own errors. The Commissioner pointed out in Wilson v. Marshall Independent School District, 047-R10-0309 (Comm'r Educ. 2011), Texas Courts have long required exhaustion of administrative remedies in the school law context.

The Commissioner held in Canutillo Educators Association v. Canutillo Independent School District, 042-R10-203 (Comm'r Educ. 2006, On Remand) that:

A long line of Texas cases finds exhaustion of remedies before school authorities to be jurisdictional. In 1929, it was held that:

It has been uniformly held that the resort to the school authorities must first be made before the courts will be authorized to hear any complaint as to a matter properly belonging to the administration of the school laws. It is a condition precedent to the exercise of jurisdiction of the civil courts. (citations omitted)

Warren v. Sanger Indep. Sch. Dist., 116 Tex. 183, 185, 288 S.W.2d 159, 160 (Tex. 1926).  If there was any question that "resort to the school authorities" meant following the procedures in place, this was dispelled in Mission Indep. Sch. Dist. v. Diserens, 144 Tex. 107, 111, 188 S.W.2d 568, 570 (Tex. 1945) when the Supreme Court adopted the analysis in State ex rel Nevills v. Sanderson, 88 S.W.2d 1069, 1070 (Tex. Civ. App.-Waco 1935, no writ):

It is a well-established rule that in all matters pertaining to the administration of school laws involving questions of fact as distinguished from pure questions of law resort must first be had to the school authorities and the method of appeal there provided for exhausted before the courts will entertain jurisdiction of a complaint with reference to such matters.

This analysis was reaffirmed by the Supreme Court when it designated as writ refused the case of McIntyre v. Hoblinski, 333 S.W.2d 697, 698 (Tex. Civ. App.-Waco 1960, writ refused). This language was further affirmed in Cook v. Neill, 163 Tex. 49, 58-60, 352 S.W.2d 258, 264-265 (Tex. 1961) with qualifications that are not applicable to the present case. The Court in Cook further held:

It is well settled that once a matter in controversy is submitted to school authorities for decision on appeal the course of appeal must be exhausted and completed before resort can be had to the courts for relief.

Id. at 267. In the case of Texas Education Agency v. Cypress-Fairbanks Indep. Sch. Dist., 830 S.W.2d 88, 90 (Tex. 1992), the Supreme Court held:

As a rule, a party to an administrative proceeding is not entitled to judicial review until the party has pursued correction through the prescribed administrative process.

A failure to exhaust administrative remedies is fatal to the claims of one who brings an appeal to the Commissioner.

Statutory Exhaustion

The doctrine of exhaustion of administrative remedies has been codified by Texas Education Code section 21.301(c):

Except as provide by Section 21.302, the commissioner shall consider the appeal solely on the basis of the local record and may not consider any additional evidence or issue.

An appeal to the Commissioner is a true appeal. Issues and evidence not raised below may not be considered with only an infrequent exception that does not apply to the current case. Just as one cannot forget to make an argument before a district court and then raise that argument before an appellate court, one cannot forget to make an argument before an independent hearing examiner and a school board and then raise that argument before the Commissioner. Timely objections must be made at the local level or they are waived. Whitaker v. Moses., 40 S.W.3d 176, 178 (Tex. App.-Texarkana 2001, no pet. h.). Objections about an independent hearing examiner’s recommendation need to be presented to the board of trustees or they are waived. Cedar Hill Independent School District v. Gore, (Tex. App.-Dallas, July 13, 2017, pet. filed). The Commissioner has held that if a teacher believes notice of contract action is not sufficient that the teacher should ask for a more specific notice to preserve error. Allen v. Jacksboro Independent School District, Docket No. 052-R1-06-2013 (Comm’r Educ. 2013).

Failure to Raise Notice Issue Before Independent Hearing Examiner

In the present case, Petitioner failed to request more specific notice before the Independent Hearing Examiner. Further, Petitioner in no way complained of a lack of notice before the Independent Hearing Examiner. In fact, Petitioner stipulated to the admission of all exhibits. Local Record, pp. 7-8. Petitioner did not object to the exhibits because he had insufficient notice of claims against him. Likewise, Petitioner did not object to testimony of a single witness based on a lack of notice. From the local record, it appears Petitioner was in no way surprised by Respondent’s claims.

Because Petitioner failed to request a more definite statement of notice and did not object to the claimed insufficient notice before the Independent Hearing Examiner, Petitioner failed to raise the issue before the Independent Hearing Examiner. For these reasons, Petitioner has failed to exhaust administrative remedies as to the notice claims.

Even if Petitioner had raised the notice issue, there would be no error as to the nonrenewal of Petitioner’s contract because Petitioner tried the case by consent by not objecting to evidence of reasons for proposed nonrenewal that he believes were not properly noticed. Tex. Educ. Code § 21,256(d) and (e), Tex. R. Civ. Pro. 67.

Failure to Raise Notice Issue Before the Board of Trustees

Petitioner failed to raise the issue of notice during the hearing before the school board to consider the Independent Hearing Examiner’s Recommendation. The school board is the ultimate decision maker in a chapter 21, subchapter F case. For this independent reason, Petitioner has failed to exhaust administrative remedies.

Harmful Error

The Commissioner may overturn a school board’s decision based on a procedural irregularity only if the error was likely to have led to an erroneous decision by the school board. Tex. Educ. Code § 21.303(c). Insufficient notice is a procedural error. In the present case, even if the notice was not sufficient there was no trial by ambush. There is no evidence in the record that Petitioner was surprised by Respondent’s claims. It should be remembered that in a chapter 21 subchapter F case, considerable discovery is permitted. Tex. Educ. Code § 21.255. Even assuming the notice given Petitioner was insufficient, Petitioner would not prevail because no harm has been shown. Petitioner was not surprised by Respondent’s claims.

Conclusion

This cause should be dismissed for lack of jurisdiction.

Conclusions of Law

After due consideration of the record, matters officially noticed, and the foregoing Findings of Fact, in my capacity as Commissioner of Education, I make the following Conclusions of Law:

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

2. The Commissioner cannot consider an issue that was not raised at the local level with the exception of a procedural irregularity that is not reflected in the local record. Tex. Educ. Code § 21.301(c).

3. Because Petitioner failed to raise the issue of notice before the Independent Hearing Examiner, the Commissioner cannot consider that issue. Tex. Educ. Code § 21.301(c).

4. Because Petitioner failed to raise the issue of notice before the school board when it was considering the Recommendation of the Independent Hearing Examiner, the Commissioner cannot consider this issue. Tex. Educ. Code § 21.301(c).

5. The Commissioner cannot overturn a school board’s determination for a procedural irregularity unless the irregularity was likely to have led to an erroneous decision. A lack of sufficient notice is a procedural irregularity. Tex. Educ. Code § 21.303(c).

6. Because Petitioner was not surprised by Respondent’s contentions before the Independent Hearing Examiner, even if the notice given were not sufficient, any error was not likely to have led to an erroneous decision. Under Texas Education Code section 21.303(c), the Commissioner could not overturn Respondent’s Decision.

7. When an independent hearing examiner conducts a teacher contract hearing the Texas Rules of Civil Procedure apply to the hearing. Tex. Educ. Code § 21.256(e). Under Texas Rule of Civil Procedure 67, “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.”

8. In the present case, all of Respondent’s claims were at least tried by the implied consent of the parties.

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

ORDER

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

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

SIGNED AND ISSUED this ________ day of December, 2017.

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MIKE MORATH COMMISSIONER OF EDUCATION

Signed and issued on December 28, 2017 by Mike Morath, Commissioner of Education

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