DOCKET NO .tx.us



NO. 119-LH-0409

|HOUSTON INDEPENDENT SCHOOL DISTRICT |§ |BEFORE JOEL B. FLOWERS, III |

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| |§ | |

|v. |§ |CERTIFIED HEARING EXAMINER |

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| |§ | |

|GARY CHISM |§ |TEXAS EDUCATION AGENCY |

WRITTEN FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATION OF THE CERTIFIED HEARING EXAMINER FOR THE STATE OF TEXAS

PROCEDURAL HISTORY

An agreement to extend the time for the Certified Hearing Examiner’s (hereinafter “CHE”) recommendation to July 27, 2009 was executed by the parties on June 16, 2009 in the form of an Agreed Docket Control Order, as Respondent, Gary Chism (pro se)(hereinafter “Mr. Chism” or “Respondent”), refused to execute an “Agreement to Extend Time for Recommendation.” The Agreed Docket Control Order was signed by the CHE on July 6, 2009It should also be noted that as a result of the CHE being in trial in another matter from May 18, 2009 thru June 30, 2009, the parties orally agreed to extend the time for the CHE’s recommendation by 45 days from June 15, 2009 to July 30, 2009 during a telephonic conference with the CHE on June 11, 2009. Subsequently, on June 12, 2009, Mr. Chism refused to sign the agreement to extend the CHE’s recommendation deadline for the CHE’s recommendation. However, on June 16, 2009, the parties filed with the CHE an executed agreed Docket Control Order extending the deadline for the CHE’s recommendation to July 27, 2009, which the CHE signed on July 6, 2009.

STATEMENT OF THE CASE

This appeal is from the March 23, 2009, proposed contract nonrenewal of Mr. Chism by the Houston Independent School District (“HISD” or “District”). At the time of the proposed nonrenewal, Mr. Chism was a teacher at James Madison Senior High School (hereinafter “Madison”) on a one year term contract. The basis for the proposed nonrenewal, pursuant to Texas Education Code §21.203(b) and HISD Board Policy DFBB (Local) is as follows:

1. Failure to fulfill duties or responsibilities;

2. Insubordination or failure to comply with official directives;

3. Failure to comply with Board policies or administrative regulations;

4. Failure to meet the District's standards of professional conduct:

5. Disability, not otherwise protected by law that prevents the employee from performing the essential functions of the job;

6. Any breach by the employee of an employment contract or any reason specified in the employee's employment contract; [or]

7. Failure to maintain an effective working relationship, or maintain good rapport, with parents, the community, or colleagues.

In compliance with Tex. Ed. Code §21.251 et seq., on April 16, 2009, Chism requested a hearing before a Certified Hearing Examiner. Mr. Joel B. Flowers, III (hereinafter “CHE”) was appointed by the Commissioner of Education to: 1] conduct the hearing; 2] make written Findings of Fact and Conclusions of Law, and 3] make a Recommendation to the HISD board. Chism was pro se at the hearing conducted on July 7, 2009. Mr. Joseph Callier, Callier & Garza LLP, represented HISD at the July 7, 2009 hearing. Dr. Aubrey Todd (hereinafter “Dr. Todd”), Principal of Madison, appeared as the representative for HISD. HISD presented 5 witnesses, Dr. Peter Messiah (live); Dr. Allison McCowan (by deposition), Warner D. Ervin (by deposition), Dr. Aubrey Todd (live), and Gary Chism (live). HISD admitted fourteen exhibits into evidence. Gary Chism presented 1 witness, himself. Gary Chism admitted 3 exhibits.

FINDINGS OF FACT

After due consideration of the record and matters officially noticed, the following Findings of Fact are made by the CHE (citations to evidence are not exhaustive but are intended to indicate some of the basis for the particular finding of fact):

1. On April 1, 2003 Dr. Bernard A. Rosenberg, M.D. (hereinafter “Dr. Rosenberg”) sent a letter to Edgar Dansby of the North Forest Independent School District notifying them that Mr. Chism was a patient of his and that he was able to return to full time employment on the same date. [HISD Ex. 4].

2. On May 10, 2007, C. Brunson-Millard of Madison sent a memorandum to Mr. Chism notifying him that he failed to turn in a grade book that was due on April 20, 2007, and therefore, failed to officially check out at the end of the school year. [HISD Ex. 17].

3. On April 21, 2008, Mr. Chism and HISD entered into a one year term contract for Mr. Chism to be employed with HISD as a teacher. [HISD Ex. 1].

4. Mr. Chism’s term contract with HISD states that it can be non-renewed in accordance with HISD Board policies and state law. [HISD Ex. 1].

5. Mr. Chism was employed only as a journalism and English teacher at Madison during the 2008-2009 school year. [Tr. 51:24-52:4].

6. Dr. Aubrey Todd was Principal of Madison between April 21, 2008 and March 23, 2009. [McCowan 17:10-14; Tr. p. 50:16-51:8].

7. On June 17, 2008 at 07:49 a.m. Mr. Chism sent an email to Dr. Allison McCowan (hereinafter “McCowan”), Madison Literacy Coach, stating, “Ms. McCowan - What does talking have to do with literacy? If you want people to read, shouldn’t you send more well written emails with pictures?” [HISD Ex. 6].

8. On June 17, 2008 at 4:55 p.m. Mr. Chism sent an email to McCowan regarding wearing shorts at Madison and admitting to being aware of the dress code. [HISD Ex. 7]. In the email, Mr. Chism stated, “Is everything ok? I haven’t heard from you. Can the new Literacy Coach Supervisor wear shorts? I know the dress code is recommended for staff. But, is there a required dress code?” [HISD Ex. 7, HISD Ex. 11, p. 18:7-15].

9. Mr. Chism was not the literacy coach at Madison or the new literacy coach. [Tr. 62:25-64:25].

10. A teacher wearing shorts is a violation of HISD Board Policy DH (Local). [HISD Ex. 12, pp. 42:18-43:8 and 43:21-21]. Teachers in HISD in Mr. Chism’s position do not wear shorts while working and carrying out his or her duties. [HISD Ex. 12, p. 14:23-15:9; Tr. 62:25-64:25]. Mr. Chism argued with Dr. Todd over the merits of him wearing shorts. [Tr. 66:6-68:22].

11. Mr. Chism sent McCowan an email requesting her to write/falsify a note to Dr. Todd stating that he needs to be able to wear shorts. [HISD Ex. 11, p. 19:7-17].

12. Mr. Chism sent McCowan an email stating that his condition was under control and he has not had any “flare-ups”. [HISD Ex. 11, p. 20:10-17].

13. On June 18, 2008 at 09:17, Mr. Chism sent an email to Dr. Todd regarding Dr. Todd’s letter to him on not turning in a grade book at the end of the 2007-2008 school year. In his email to Dr. Todd, Mr. Chism did not deny not turning in a grade book and offered no explanation other than he and his wife had child on the way. [HISD Ex. 8]. Mr. Chism offered no further explanation at the time of the hearing. In addition, in the same email, Mr. Chism stated:

“I hope you are having a nice summer. I just received your letter regarding my not turning in a grade book and checkout sheet. My wife is pregnant and is due to have the baby any day now (Gracie Lynn).

“Also, I have a disability and there will need to be adjustments made to my work schedule and environment.

“Next school year, I will have one of the following titles: Journalism Coordinator, Literacy Coach, Dean of Instruction, School Improvement Facilitator or Assistant Principal. I am well aware of the responsibilities and requirements of all these jobs and am confident that I can do them well.

“All of these jobs, require an office and do not have students assigned to them. I do need a couple of office workers and must have access to students. My disability requires interaction and contact with the students. My approach to these jobs will be very hands-on.

“You might want to talk to human resources, the union and your supervisor. We can iron out the details regarding salary, company car, budget, day-to-day responsibilities, dress code and equipment later. I will work 50-60 hours a week. Now, the work schedule will not be traditional. I need to hear from you or one of your team members by the end of this week June 18, 2008. I might be tied up caring for a new born the rest of the summer.

“If you can, have them respond by email. I don’t talking on the phone much. Thanks in advance for your cooperation.”

[HISD Ex. 8, Tr. 56].

14. Mr. Chism did not comply with any of the directives to turn in his grade book. [Tr. 101:23-25].

15. A grade book is important and necessary to be kept and turned in by a teacher because it is an academic, as well as an attendance record. A grade book shows the date of attendance, punctuality, and the grades that a student has made. [HISD Ex. 11, pp. 33:18-31:21].

16. The positions within Madison that Mr. Chism was demanding to have were not available. [HISD Ex. 11, pp. 11:10-12, 15:14-16:18; and 17:5-9; HISD Ex. 12, p. 15:10-16:4; Tr. 58:24-59:6].

17. Chism was being treated for a bipolar disorder that he informed Dr. Todd about, but was not taking his medication to treat the bipolar disorder. [Ex. 12, pp. 22:25-24:22].

18. On August 26, 2008, Dr. Todd verbally reprimanded Mr. Chism for wearing walking shorts to work on that same day. [Tr. 65:3-66:4]. Dr. Todd asked Mr. Chism to leave his office, and Chism in return asked, “What if I do not leave?” Dr. Todd called campus police to remove Chism from his office after Mr. Chism refused to leave. [HISD Ex. 15, Tr. Tr. 66:6-68:22]. As he left Dr. Todd’s office under the threat of campus police being called, Mr. Chism asked Dr. Todd, “Do you love me?” [Tr. 66:6-68:22].

19. Mr. Chism’s behavior on August 26, 2008 was not appropriate under HISD Board Policy DH (Local). [HISD Ex. 12, p. 43:14-20].

20. On September 3, 2008, Dr. Todd directed Mr. Chism to participate in a medical evaluation to determine his fitness for duty following Mr. Chism’s erratic behavior and allegations of having a bipolar disorder. [HISD Ex. 15].

21. On September 25, 2008, HISD’s Director of Health & Medical Services (Evelyn Henry) sent Mr. Chism notice of his medical evaluation on September 29, 2008 at 11:00 a.m. [HISD Ex. 10, p. 11]

22. On September 29, 2008 at 11:00 a.m., Mr. Chism did not show for his medical evaluation. [HISD Ex. 10, p. 13].

23. Mr. Chism was told not to return to any HISD campus, but did so despite the warnings to him not to do so. [Tr. 92:19-97:13].

24. On October 30, 2008, at 11:08 a.m., Larry J. Rayes sent an email to HISD’s Athletic Director (Daryl W. Wade) regarding a Jack Yates High School-Sharpstown High School football game, at which Mr. Chism showed up and misrepresented himself as a teacher from Yates High School in order to gain access to the sidelines of the football game to take photographs. [HISD Ex. 9, pp. 15 and 16, HISD Ex. 12, p. 9:6-11:11; Tr. 80:3-81:18].

25. On November 7, 2008, as Mr. Chism was leaving HISD’s Regional Superintendent’s (Warner Ervin) office, Mr. Chism asked Warner Ervin (hereinafter “Ervin”) not to shake his hand because it was his “shooting hand.” [HISD Ex. 12, p. 10:10-11:11].

26. On November 7, 2008, Mr. Chism exhibited unstable and erratic behavior at the HISD South Region office, by refusing to give his last name, wandering throughout the building, disrupting a Content Specialists’ Meeting, and warning an HISD Police Officer to not shake his hand because it was his “shooting hand.” [HISD Ex. 10, p. 16; HISD Ex. 12, pp. 41:23-42:12].

27. On November 13, 2008, Mr. Chism falsely accused another HISD employee of sexual harassment while on HISD property after being firmly warned by Mr. Ervin on November 7, 2008 not to enter upon HISD property. He stated that, “Well, they didn’t know I was looking, but I caught one of them looking at my dong.” [HISD Ex. 12, p. 61:10-64:16].

28. HISD’s Employee Standards of Conduct (hereinafter “the Standards”) dictate in pertinent part that, “Every employee shall be responsible for satisfactorily completing the duties as specified with respect, courtesy, and in a professional manner, dressing in a manner that is appropriate for the job assignment and that reflects positively on the District…., and following the established rules of behavior for the District and society in general as defined by local, state, and federal laws. [HISD Ex. 13, p. 1-2].

29. HISD’s DFBB (LOCAL) Term Contracts Nonrenewal states in pertinent part:

“Reasons for proposed nonrenewal of an employee’s term contract shall be:

“2. failure to fulfill duties or responsibilities

***

“5. Insubordination or failure to comply with official directives.

***

“6. Failure to comply with Board policies or administrative regulations.

***

“14. Failure to meet the District’s standards of professional conduct.

***

“17. Disability, not otherwise protected by law, that prevents the employee from performing the essential functions of the job.

***

“19. Any breach by the employee of an employment contract or any reason specified in the employee’s employment contract.

***

“25. Falsification of records or other documents related to the District’s activities.

***

27. Intentional or deliberate misrepresentation of facts to a supervisor or other District official in the conduct of District Business.”

30. On November 20, 2008 Dr. Todd considered, inter alia, all of the above and recommended nonrenewal of Mr. Chism’s contract. [HISD Ex. 1-3, Tr. 54:1-56:10, 56:24-58:23, 80:3-91:1, 97:14-105:11, 202:15-20, and 204:6-210:6].

31. On March 23, 2009, HISD notified Mr. Chism of its intent to not renew his term contract, with the grounds therefor. HISD’s notice to Mr. Chism was 45 days or more before the last day of instruction in the school year covered by Chism’s April 21, 2008 term contract with HISD. [HISD Ex. 2].

DISCUSSION

The issue in this case is whether Mr. Chism’s actions during the 2007-2008 and 2008-2009 school years justified the nonrenewal of his term contract.

HISD contends, inter alia, that during the 2008-2009 school year Mr. Chism:

8. Failed to fulfill duties or responsibilities;

9. Was Insubordinate or failed to comply with official directives;

10. Failed to comply with Board policies or administrative regulations;

11. Failed to meet the HISD’s standards of professional conduct:

12. Alleged a disability, not otherwise protected by law that prevented Mr. Chism from performing the essential functions of his job;

13. Breached his employment contract; [or]

14. Failed to maintain an effective working relationship, or maintain good rapport, with parents, the community, or colleagues.

Respondent’s contract, provision no. 5 (HISD Ex. 1) in pertinent part states “Employee shall faithfully perform to the satisfaction of the district all duties set forth in the job description or as assigned. This contract is specifically subject to the policies, procedures, standard practice memorandum (SPMs), administrative directives, rules, and regulations of the District as they exist or may be amended, issued, enacted or adopted during the term of this contract.” (Emphasis added.)

Section 21.206(a) of the Texas Education Code provides, “Not later than the 45th day before the last day of instruction in a school year, the Board of Trustees shall notify in writing each teacher whose contract is about to expire whether the Board proposes to renew or not renew the contract.”

On March 23, 2009 the HISD Board, through its Superintendent, notified Respondent that Respondent’s one-year teacher’s term contract would not be renewed. The written notice provided to Respondent specifically set forth the reasons the contract was not being renewed. (HISD Ex. 3)

The preponderance of the credible and persuasive evidence supports HISD’s position for nonrenewal. Although there is some conflicting testimony in this matter, the CHE finds the testimony of the witnesses Allison McCowan, Warner Ervin, Dr. Aubrey Todd, and Dr. Peter Messiah to be most credible and persuading. The CHE finds the testimony of Mr. Chism incredible. Furthermore, the CHE finds Mr. Chism’s antics at the hearing to be quite disturbing and an attempt to intimidate the witness (Dr. Aubrey Todd). [Tr. 107:19-24].

The incidents giving rise to HISD’s reason for nonrenewal are evidence that Respondent is unwilling to perform to accepted standards, accept administration directives, and behave in a professional manner. Although there is an allegation of a bipolar disorder by Mr. Chism that could possibly explain his behavior, Mr. Chism has offered no evidence in the way of medical evidence that he was indeed suffering from a manic episode between April 2008 and December 2008. HISD provided evidence in form of Dr. Gabrielle S. Hobday’s October 16, 2008 psychiatric evaluation, in which she opined that Mr. Chism was not suffering from a manic episode between April 2008 and December 2008. Mr. Chism provided no competent evidence to the contrary.

The preponderance of credible and persuasive evidence reveals that Respondent was/is not responsive to directives, has no respect for authority, refused to cooperate with his superiors, and that attempts to remediate failed as Respondent’s behavior did not change after repeated attempts and warnings by his superiors. Respondent demonstrated extremely poor judgment in threatening flare ups in his “condition” if he did not get what he wanted, commenting on his “shooting hand” as a reason for not cordially shaking hands, requesting benefits such as a company car, and repeatedly entering HISD property after being warned to stay away. Clearly, HISD had its students’, faculty’s, staff’s, and the community’s safety and well being in mind in deciding to nonrenew Mr. Chism’s term contract.

The reasons for the proposed nonrenewal of Respondent’s term contract are well documented and supported by the preponderance of credible and persuasive evidence and as set forth herein and in the hearing transcript.

CONCLUSIONS OF LAW

After due consideration of the evidence presented at the hearing, any materials officially noticed, and the foregoing Findings of Fact, in my capacity, as a Certified Hearing Examiner for the State of Texas, I make the following Conclusions of Law:

1. The Certified Hearing Examiner has jurisdiction to hear this issue under Texas Education Code § 21.251(b)(2), as HISD has decided to use the process prescribed by Subchapter F of the Texas Education Code. [Tr. 217:22-220:9].

2. Mr. Chism was afforded a fair and impartial hearing pursuant to Chapter 21, Subchapter F, of the Texas Education Code.

3. Montgomery Indep. Sch. Dist. v. Davis, 34 S. W. 3d 559, 567 (Tex. 2000) (“As the fact finder, the hearing examiner is the sole judge of the witnesses’ credibility and the weight to be given their testimony, and is free to resolve any inconsistencies.”)

4. HISD established by a preponderance of the credible and persuasive evidence that one or more reasons listed in HISD Board Policy DFBB (Local) exist to support the nonrenewal of Mr. Chism’s term contract.

5. Consistent with TEC §21.256(h) (preponderance of the evidence), HISD demonstrated the violation of Board Policies DFBB(LOCAL) [as amended on February 8, 2007] and DH (LOCAL)], thereby warrants the nonrenewal of Mr. Chism’s employment pursuant to ¶9 of his One Year Term Teacher Contract and §21.203(b) and §21.206(a) of the Texas Education Code.

6. Consistent with TEC §21.256(h), HISD demonstrated that during June 2008, Mr. Chism sent an email to Dr. Aubrey Todd, Principal, Madison High School, admitting to not turning in his grade book at the end of the 2007-2008 school year, which violated Board Policies thereby warranting nonrenewal of his one year term contract.

7. Consistent with TEC §21.256(h), HISD demonstrated that during June 2008, Mr. Chism sent an email to Dr. Aubrey Todd, Principal, Madison High School, making unreasonable demands for a job position, salary and benefits during the 2008-2009 school year that violated Board Policies, thereby warranting nonrenewal of his one year term contract.

8. Consistent with TEC §21.256(h), Mr. Chism sent an e-mail to Allison McCowan, Literacy Coach, Madison High School, implying that he was the new Literacy Coach Supervisor, when no such position existed. This violated Board Policies, thereby warranting nonrenewal of his one year term contract.

9. Consistent with TEC §21.256(h), HISD demonstrated that during June 2008, Mr. Chism sent an email to Allison McCowan, Literacy Coach, Madison High School, stating that he was bipolar and unless he had a less restrictive environment his condition could flare up. This act violated Board Policies, thereby warranting nonrenewal of the one year term contract.

10. Consistent with TEC §21.256(h), HISD demonstrated that during June 2008, Mr. Chism sent an email to Allison McCowan, Literacy Coach, Madison High School, requesting her assistance in him wearing short pants by falsifying a note to Dr. Todd. This act violated Board Policies, thereby warranting nonrenewal of his one year term contract.

11. Consistent with TEC §21.256(h), HISD demonstrated that during August 2008, Mr. Chism wore short pants to Madison High School, and when told by Dr. Todd that the shorts were inconsistent with professional attire and District dress requirements, Mr. Chism became argumentative. Later, after being reprimanded by Dr. Todd, when asked to leave Dr. Todd’s office, Mr. Chism asked, “What if I don’t leave,” and refused to leave Dr. Todd’s office until police were called and when leaving asked Dr. Todd, “Do you love me?” These acts violated Board Policies, thereby warranting nonrenewal of his one year term contract.

12. Consistent with TEC §21.256(h), HISD demonstrated that during October 2008, Mr. Chism went to a Yates/Sharpstown high school football game, misrepresented his identity at the game, and without a media pass, sought to photograph the game from the sidelines. This act violated Board Policies, thereby warranting nonrenewal of his one year term contract.

13. Consistent with TEC §21.256(h), HISD demonstrated that during November 2008, Mr. Chism went to the South Region Administrative Office and acted erratically by disrupting a content specialist meeting, asking “Where are the police? I see their car outside,” and, while leaving the meeting with Warner D. Ervin when Mr. Ervin and a police officer attempted to shake Mr. Chism’s hand, Mr. Chism stated, “Don't shake this hand. It is my shooting hand.” This act violated Board Policies, thereby warranting nonrenewal of his one year term contract.

14. Consistent with TEC §21.256(h), Mr. Chism failed to explain, other than being manipulative, reasons for the above acts on his part, and such failure thereby warrants the affirmation of HISD Superintendent Abelardo Saavedra’s recommendation that Mr. Chism’s one year contract be nonrenewed pursuant to ¶9, TEC §21.203(b) and Board Policies DFBB (LOCAL) [as amended February 8, 2007] and DH (LOCAL)

V. RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is the Recommendation of the Certified Hearing Examiner that HISD has sufficient evidence to nonrenew Gary Chism’s term contract at the end of its current term and that Mr. Chism’s appeal of such nonrenewal should be DENIED in its entirety.

SIGNED this 27th day of July, 2009.

___________________________________________

Joel B. Flowers, III, Certified Hearing Examiner

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