Ritter.tea.state.tx.us



DOCKET NO. 038-LH-1211

EDCOUCH-ELSA ISD § BEFORE THE HEARINGS EXAMINER

§

VS. § HON. FRANCISCO J. ZABARTE

§

DR. DELFINO ALEMAN § TEXAS EDUCATION AGENCY

RECOMMENDATION OF THE CERTIFIED HEARING EXAMINER

Statement of the Case

Edcouch-Elsa Independent School District has proposed the termination of the term contract for good cause of its Superintendent Dr. Delfino Aleman commencing on July 1, 2011 to June 31, 2014, allegedly for 27 reasons, constituting good cause for termination. Respondent filed his appeal timely with the TEA and filed a Motion for Special Exceptions granted in part and carried along in part due to the fact that discovery could yield the clarification Respondent needed. Discovery was exchanged between the parties. Depositions were taken and records were requested. In addition, the Petitioner filed a Motion in Limine which was granted since the Respondent had no objection. Petitioner further filed a Motion to Exclude Dr. Delfino Aleman from testifying as an expert witness and Respondent filed a similar motion to exclude a hired expert, Ann Dixon, Ph.D. from testifying as an expert. Both motions were denied. A Motion for Summary Judgment was filed by Petitioner which was denied. Pursuant to the Scheduling Order, Pre-Hearing statements were also filed by the parties.

Petitioner is represented by Gilbert L. Vasquez, LAW OFFICE OF GILBERT VASQUEZ, 814 Del Oro Lane, Pharr, Texas 78577and Jaime J. Munoz, LAW OFFICE OF JAIME J. MUNOZ, P.O. Box 47, San Juan, Texas 78589.

Respondent is represented by Ruben R. Pena, LAW OFFICES OF RUBEN R. PENA, 2900 Central Blvd., Suite B, Brownsville, Texas 78521.

Findings of Fact - Two Three Day Hearing

After due consideration of the evidence and matters officially introduced through testimony and exhibits, the following findings of fact have been proven by a preponderance of the evidence:

1. Petitioner employed independent search consultant George McShan to assist it in its search for a new Superintendent (Volume III, Page 91-92).

2. Petitioner advised McShan that the new Superintendent would employ a new high school principal since the Edcouch-Elsa High School was at “stage 5," and in need of improvement; and, assistance in leadership there was important (Volume III, Page 102-104). This is something he shared with Respondent, Id., (Volume III, Page 157-158), and that the board shared with Respondent (Volume I, Page 165).

3. At the June 16, 2011 board meeting, and after the 21 days notice required to give time for further investigation of the qualifications of the finalists, the Superintendent’s contract was approved. (Respondent’s Exhibit 19). BJB (Legal) Tex. Gov. Code, Section 552.126.

4. Respondent was employed under a three year Superintendent’s contract and the first day of employment was July 1, 2011 (Volume I, Page 30) (ISD Exhibit 1).

5. The Superintendent’s contract requires that he faithfully perform such duties and have such powers as prescribed in the law and by the board...and all duties assigned by the board shall be appropriate to and consistent with the professional role and responsibility of the Superintendent. The standard states that the Superintendent shall perform his duties with reasonable care, skill and expertise and in a thorough, prompt , and efficient manner. The contract further states that the Superintendent shall comply with all lawful board directives, state and federal laws and rules, board policy, and regulations as they exist or may thereafter be amended. (Volume I, Page 30) (Superintendent’s contract, ISD Exhibit 1). Of particular interest is that the contract also states that the board individually and collectively shall refer all substantive criticisms, complaints and suggestions called to board attention to the Superintendent for study, and/or appropriate action or investigation, and that the Superintendent will within reasonable time inform the board of the results of the efforts made. Id.

6. At the same meeting in which Respondent’s contract was approved, Petitioner also hired a new high school principal (Volume I, Page 86) (Respondent Exhibit 19). It is apparent there were informal interviews conducted by board members with that principal even prior to the submission of his application (Respondent Exhibit 8, ISD Exhibit 27, Respondent Exhibit 25).

7. On July 2, 2011, one day after Respondent’s employment, a special meeting was called in which a high school assistant principal was being recommended to the Board of Trustees. Respondent had not been made aware of the credentials of the applicant, so the item was tabled by Petitioner pursuant to Respondent’s request (Volume III, Pages 158-159) (Volume I, Pages 180-181). Incidentally, the newly hired high school principal had obviously not been consulted (allegedly required by Texas Education Code 11.202, DC (Local)).

8. Respondent became aware that the new high school principal, John Gonzalez, had been terminated for a good cause and had an agreement with TEA to accept a reprimand on his administrative certificate instead (Volume I, Pages 62, 167-170 and 63, Respondent’s Exhibit 4). Respondent was allegedly directed to investigate these discoveries which later apparently became a source of friction between Respondent and the principal (Volume I, Pages 167-176).

9. The Board of Trustees allegedly was not aware of Principal Gonzalez’s reprimand yet Frank Perez, the Assistant Superintendent for personnel, was aware of the reprimand and stated that the Interim Superintendent as well as the Board had been advised of said reprimand (Volume I, Page 172) (Res. Exhibit 4). Gonzalez testified he advised Perez of the reprimand and of his termination from Austin ISD (Petitioner Exhibit 39, 32-33).

10. The testimony of trustee, board member, Norfilia Gonzalez is inconsistent with that of Frank Perez regarding the board’s knowledge of Principal Gonzalez’s record (Volume III, Page 28-29).

11. Respondent attempted to have Principal Gonzalez voluntary resign because he believed that the Board had suggested that he do that, which resulted in Gonzalez filing his grievance against Respondent at least in part (Volume I, Page 174-176).

12. Respondent attempted to circumvent the principal, allegedly in violation of Texas Education Code 11.202 DC (Local), by not including him in the interview or selection process of an assistant principal in the Summer of 2011, at least in part because he felt obligated to reorganize and improve performance due to the “stage 5" standing (Volume I, Page 88-110).

13. Respondent further stated that he did not know that the principal needed to make the actual approval (Volume I, Page 104).

14. Texas Education Code Section 11.202 and EEISD board policies DC (Legal) and DC (Local), along with Texas Education Code, Section 11.202(b) gives the principal of the campus a special role in selecting teachers and staff at the campus (ISD Exhibit 37, Attachment 19) (Exhibit 15). Under the Texas Education code the term “teacher” includes principals (and presumably assistant principals) (ISD Exhibit 16). However, it also gives the Superintendent sole authority to make recommendations to the board regarding the selection of personnel, and to define the qualifications of all positions EEEIS. DC (Local) and DC (Legal), ISD (Exhibit 16, Attachments 13 and 19).

15. Despite his recommendation, the board rejected Respondent’s recommendation for the high school assistant principal’s recommendation in a split decision (Volume I, Page 95).

16. While at a conference in Austin, Respondent was asked by Joseph Campos, Board President, if a third agreement had been extended for Robert Rodriguez, previously interim superintendent (Volume I, Page 73).

17. The first agreement for Rodriguez was one where he was hired as an interim superintendent which was board approved on December 9, 2010 and expired on June 30, 2011. The second agreement was board approved, but was for contracted services from July 1 through September 30, 2011 (Volume I, Pages 71-72) (ISD Exhibits 14(a) and (b)).

18. After Respondent had responded in the affirmative to Campos that the Gonzalez’s contract had been extended, the business manager confirmed to Respondent that the contract had in fact been signed (Volume I, Page 74); but, later on the same day Respondent was told that a contract had actually not been signed (Volume I, Pages 74 and 75).

19. Thus, he directed the business manager to prepare a new contract for September 30, 2011 for him to sign later and backdate it. (Volume I, Page 73).

20. Respondent testified he did not ask for board approval because he believed that under this new contract, Rodriguez would earn less than $25,000 which is a threshold for unbudgeted expenses and for which he has authority to make contracts (Respondent’s Exhibit 16) (ISD Exhibit 14(c)) (Volume I, Pages 74-78).

21. The superintendent has been delegated the authority from the board to make budgeted purchases for goods and services that cost less than $25,000 (Respondent Exhibit 16).

22. Superintendents assume the responsibility and authority to administrate the district as its educational leader and chief executive officer. Texas Education Code 11.201.

23. If Rodriguez was categorized as an employee of the district as opposed to an independent contractor, then board approval should have been sought (Volume I, Pages 85-86).

24. Though Rodriguez’s new contract was to be for mentorship to the high school principal and consultation on custodial maintenance projects (Volume I, Pages 71-72) (ISD Exhibit 14(c)), he was being used for as an elementary school assistant principal because of needs at that campus (Volume II, Page 159).

25. On May 5, 2011 Rodriguez, Petitioner’s interim superintendent at the time (not Respondent), appointed certain board members to the insurance committee (Volume I, Pages 49-50, Petitioner’s Exhibit 8).

26. Respondent did not believe that it was the board’s role to participate in the school district’s insurance committee (Volume II, Pages 101-102).

27. He further believed there was two different committees (Volume I, Pages 53-54).

28. District personnel informed Respondent that Frank Perez, Deputy Superintendent, had stated that the board members were supposed to be on the insurance committee. Respondent stated to the district personnel that they were not really members of this committee, there was another committee, and if they had questions, to let Respondent know (Volume I, Page 55).

29. There was no evidence presented of a second committee for insurance and no evidence that anyone corrected Respondent that there was none.

30. The board president is authorized to appoint trustees to various special committees created by the board (ISD board policy BDB (Local)) (ISD Exhibit 11).

31. In this case, Respondent could reasonably believe that the prior interim superintendent, and not the board president had appointed certain members to the insurance committee.

32. On Tuesday, October 4, 2011, Joseph Campos, Petitioner’s board president, told Respondent that he wanted to call a special meeting for Friday, October 7, 2011 though Respondent originally thought it was going to be scheduled on October 12 (Volume I, Pages 110-118).

33. Respondent refused for various reasons (Volume I, Pages 110-114) (See also ISD Exhibit 21).

34. Respondent alleged that the information was extensive, he could not be prepared, that the day of the meeting was also homecoming, and Fred Liner, the financial conservator had not been advised of the meeting (Volume I, Pages 110-118),(ISD Exhibit 21).

35. It is noteworthy that some of the topics in the agendas dealt with matters of a financial interest in the district, something Liner needed to be involved with or notified about (ISD Exhibit 37, Attachment 3).

36. Board policy BE (Local) states that the president of the board shall call special meetings at his discretion, but it requires that seven days notice be given for an agenda (ISD Exhibit 20). BE (Local) also gives the president this discretion.

37. On October 4, 2011, Mr. Campos the board president, after consultation with the district and general counsel, directed Frank Perez, deputy superintendent to post the agenda (Volume I, Page 230-231) (Volume II, Pages 46-47).

38. Perez did not advise Respondent of the action until the following day (Volume I, Page 124-125).

39. On October 5, 2011, when Respondent was informed, Respondent took down the agenda and called the school attorney, Acevedo (Volume I, Page 188).

40. On October 5, 2011, Respondent also sent an e-mail to all board members advising them of the reasons for not posting the agenda (Volume I, Page 117) (Petitioner Exhibit 21).

41. Furthermore, Aleman also spoke to Acevedo, the ISD general counsel/school attorney, regarding the refusal to post the agenda (Volume I, Pages 124-125).

42. There is a difference of opinion as to what was said during the conversation between Respondent and Mr. Acevedo.

43. On October 5, the district counsel directed to have an agenda posted for a special board meeting on Saturday, October 8, 2011 (Respondent Exhibit 5) (Volume II, Page 10).

44. On October 5, 2011, Respondent was informed another agenda had been posted regarding possible suspension of Superintendent (Volume I, Pages 188-189).

45. Respondent believed that lack of time to prepare for the meeting should be a consideration and that the work between boards and superintendents should be collaborative (Volume I, Page 120).

46. The conservator Fred Liner is to be advised of all meetings in order to make arrangements to attend (Respondent Exhibit 3) (Respondent Exhibit 14).

47. The meeting for Saturday, October 8, 2011 was cancelled (Respondent Exhibit 5 ).

48. On October 11, 2011, Fred Liner reiterated that he was not be able to attend the meeting in person nor by phone nor by skype, as he was on vacation from September 8 through September 11. He further stated that he is to attend all board meetings (Respondent Exhibit 14).

49. Moreover, Liner testified that the school board president Joseph Campos advised him that he was not aware that Liner needed to be present when financial issues were to be discussed and that Liner reminded him that he had given Campos a copy of the October 1, 2008 assignment letter from TEA (Volume III, Pages 57-58).

50. Furthermore, Campos was advised by Liner that if the meeting would go ahead without him, Liner would report that to TEA (Volume III, Page 59).

51. Liner further testified that he could not have been able to attend the October 7 meeting either (Volume III, Pages 83-84).

52. Board policy BE (Local) states that, before the official agenda is finalized for any meeting, the superintendent shall consult the board president to insure that the agenda and the topics included meet with the president’s approval (Exhibit 20).

53. On October 14, 2011, an agenda was posted for October 19, 2001. Dr. Aleman admitted that he placed the items on the agenda related to his suspension with pay and the appointment of an interim in bold without notifying the board president, but possibly notifying the ISD school attorney, Acevedo (Volume I, Pages 142-146) (ISD Exhibit 24) (Volume III, Page 180).

54. Dr. Aleman stated that the reason he placed the items related to him in bold was to draw the community’s attention to this important piece of information (Volume I, Pages 146-147).

55. BE (Legal) also states that agendas for all meetings shall be sufficiently specific and inform the public the subjects to be deliberated, setting out any special or unusual matters to be considered or any matter in which the public has a particular interest. It further states that deliberations or actions pertaining to the superintendent and principals are particular public interest and notice of this subject must be worded with such clarity that the public will understand what the board proposes to discuss or accomplish (BE (Legal)) (ISD Exhibit 37, Attachment 2).

56. Respondent allegedly told Mr. Frank Perez that Perez reminded him of a Jew because Jews are very good at keeping record. There is no evidence that Perez told him at that point that he was offended by the remark and Perez did not file a grievance over this matter, though he had filed grievances before. Perez’s complaint (“Statement of Fact”) was documented after Respondent was suspended and makes other accusations of the Respondent with no hard facts to support it (“he probably”). (ISD 37, Attachment 8).

57. Perez’s credibility is questionable based on his testimony at the hearing, his deposition and the fact he had applied to be superintendent (Respondent’s position).

58. Furthermore, Gonzalez, the principal, testified that Respondent referred to him as a “pedofile” (ISD Exhibit 39, Page 41) pursuant to information provided to him by Perez.

59. Gonzalez states Perez told him it was in front of the board members (Id.). He did not see any evidence of this (Id. at 42) and the only board member who testified did not testify to that. Gonzalez further testified that Respondent tried to coerce him to resign his position (Exhibit 39, Pages 39-40), which attempt was explained by Respondent in point 11 above.

60. It is further alleged through the testimony and investigation of hired expert for the ISD, Dixon, that she discovered that Respondent committed some type of age discrimination remark because he referred to two high school assistant principals, who worked with Principal Gonzalez, as old and decrypt (Volume II, Page 103) (ISD Exhibit 37, Finding 6).

61. With regard to the alleged age related discriminatory remarks, John Gonzalez’s deposition is replete of Respondent making a discriminatory remark. In fact, he could not be certain about Respondent’s comments of Minerva Gonzalez and Rogelio Garza (the two assistant principals) (ISD Exhibit 39, Pages 70-71).

62. Respondent was not aware of the grievances of the assistant principals when he was questioned by the hired ISD investigator (ISD Exhibit 37, Finding 6).

63. Acevedo, another expert hired for the ISD who is also the attorney for the board, believes that making disparaging racial and age discriminating comments are in violation of federal and state laws; but he is not an eyewitness to same.

64. The school district hired an investigator, Dixon, to conduct an independent investigation regarding the concerns of the school board trustees relating to actions and behaviors of Delfino Aleman after they had suspended him (ISD Exhibit No. 37).

65. Dixon listed 13 different reasons (after she was rehired by the ISD as an expert on Respondent’s appeal) why the Respondent should be terminated for cause. (Id.)

66. Dixon believed that Respondent made misrepresentations to her during the investigation, most salient of which were his representations regarding his prior employment in the San Diego California School District as well as his employment/ affiliation at Arizona State University (Volume II, Pages 91-94).

67. She further testified that some of the board members felt that there was misrepresentation to them not only by Aleman but also by the head-hunter, McShan, with respect to the board and Respondent’s application. (Id. at 94).

68. However, Ann Dixon was effectively cross-examined on various issues, most salient of which was that her alleged Ph.D. could not have been granted to her by the institution and she stated in her resume as the school had not been accredited until much later implying she herself made misrepresentations in her resume (Volume II, Pages 115-117), as well as the fact that the application which Respondent allegedly made misrepresentations about and filled out for the district, was not presented to him before he was hired (Volume II, Pages 122-123) (Volume III, Pages 96-97) (Volume I, Pages 61-63).

69. The packet for McShan asked for a brief description of Respondent’s major accomplishments, and the application the ISD had him fill out much later, asked for information of student teaching/teaching/professional experience and all professional or related experiences (ISD Exhibit No. 37, Attachment 25). Thus, Respondent explained that these forms did not necessarily ask for places he was only employed; rather, it asked places he was also affiliated with or volunteered at during his educational career and included highlight experiences as well as employment.

70. Dixon further did not take recorded statements or written statements from any witnesses to support her position (Volume II, Pages 120-121, 164).

71. Though she apparently interviewed people from within the school district and outside the district, she did not interview Fred Liner, financial conservator, or Eugene Garcia, Respondent’s supervisor at Arizona State University, witnesses who were important in allegation she made against Respondent.

72. Furthermore, she was not aware of the reprimand and the termination of John Gonzalez, the principal who complained about Respondent to her at the time she was making her recommendation (Volume II, Page 20); and, she testified that, though she was not aware of Gonzalez’s record, had she received that information then she would have investigated the basis for the reprimand as did Respondent. (Volume II, Page 21).

73. Of significance is the fact that she has always testified on behalf of the school districts instead of both districts and employees or superintendents (Volume II, Page 136).

74. On October 11, 2011, Respondent was quoted and admitted that he told the local newspaper that “Working with a dysfunctional board is really absurd” and that, fortunately, he had leadership maturity and patience. Furthermore, he was quoted stating that the EEISD board of trustees was “reactionary” (Volume I, Pages 34-36, ISD Exhibit 4 ).

75. In that same article Respondent was also quoted referring to the board as “underhanded” because of the president posting an agenda for a special board meeting. Respondent also admitted making this comment during his testimony. (Volume I, Pages 36-39).

76. On October 14, 2011, Respondent gave an on-camera interview to the local television station wherein he again referred to the board as “dysfunctional” (Volume I, Pages 43-46, Exhibit 6).

77. On October 19, 2011, Respondent was suspended with pay (Petitioner Exhibit 2).

78. On October 20, 2011, Respondent was quoted in the local paper as stating generally that he “despises the exploitation” of the children of the school district but that “a few rouge board members insist on running business as usual.” (Volume I, Exhibit 7(a) and (b), See also Volume I, Pages 47-48).

79. Respondent testified that he was merely referring to several board members and not the entire board (Volume III, Page 186-188).

80. He is further quoted as stating to the local paper that several members of the board were “micro manager types” (Volume I, Exhibit 7).

81. In his deposition he specifically referred to three board members, Joseph Campos, the current board member, John Ibarra the previous president and Domingo Rodriguez as the board members he referred to in the media. (Exhibit 25, Aleman Deposition Pages 306-307).

82. Though he said he did not contact the media, Respondent should have known that his comments would be aired in the local news when he gave his interview to the local news station on October 14, 2011 (Volume I, Pages 44-45).

83. During the television interview on October 14, Respondent alluded to the fact that he did not think that the board understood where their authority lies and where the superintendent authority lies (Volume I, Page 45, Exhibit 6).

84. Norfilia Gonzalez, the only board member who testified and who voted for Respondent’s termination stated that Respondent’s statement about “dysfunctional” had a personal impact on her because she was a rehabilitated counselor who worked with people who have been diagnosed as “dysfunctional.” She felt that this effected her credibility to the persons she counseled (Volume III, Page 9).

85. Board member Gonzalez felt that Respondent’s comments in the news media destroyed the relationship between the board and superintendent, along with the fact that he refused to post the agenda for a special board meeting (Volume III, Page 10).

86. She further believed that Respondent’s actions effected the relationship so much so that they could not be repaired (Volume III, Page 10).

87. On October 11, 2011, despite the fact that board member Gonzalez and ISD attorney Acevedo testified that they tired to work with Respondent and that they did nothing to effect the public’s opinion adversely against Respondent or the district, both the board’s attorney as well as the president of the board, Campos, made comments about Respondent taking down the agenda “illegally,” that Respondent believed that he had full authority to sign off on contracts hiring personnel, and more. (ISD Exhibit 4(a)).

88. In the same article Ibarra, another board member, was quoted to say that there is just the Respondent’s way of thinking, and that he’s a very hard headed individual and stubborn. Id.

89. Interestingly, in the October 11 article, Respondent, board president, Campos and another board member, Ibarra, indicated that they wanted to move forward with everything and that people needed to sit down and calm themselves down. Id.

90. However, on October 14, Campos commented to the media that the board members were looking into the possible suspension or termination of the superintendent for possible violation of policy and that the superintendent refused to post the agenda (ISD Exhibit 37, Attachment 21).

91. On October 20 the media also commented that Campos refused to let one of the board members that voted against suspending Respondent to have the floor despite the audience members yelling to allow board member Fernando Torres talk (not a unanimous decision). (ISD Exhibit 7(a)).

92. On October 20 Respondent stated that he had hoped that the board would rise above history of having four interim superintendents not five in the last few years and that the school system was slowly falling apart, but he had no intentions of leaving. Though he was disappointed, he did not like the exploitation of the few board members running business as usual (ISD Exhibit 7(a)).

93. On December 2, 1001, a letter of proposed termination was sent to the Respondent advising that Respondent was suspended without pay and that if he desired a hearing before the board of trustees he needed to make a request within 10 days (Petitioner Exhibit 3).

94. On December 1, 2011, the board meetings do not indicate what action was taken in executive session (Respondent Exhibit 13).

95. Respondent’s attorney objected to the suspension without pay and requested a hearing (Respondent Exhibit 31).

96. The matter was apparently corrected subsequent to the objection by the attorney.

97. Gustavo Acevedo, the district’s general counsel, though testifying as a witness was also the board’s attorney on a retainer and doing business on a contingency for the district (Volume II, Pages 39-40) (Respondent Exhibit 12).

98. Though Acevedo believed there was good cause for termination due to the Respondent’s actions of refusing to post the agenda, taking down the agenda, making comments to the media, lying to the board president about Rodriguez’s contract, attempting to employ the assistant principal without input from the principal John Gonzalez, it is salient that for the most part the board president was behind much of the complaints and that he was one that was feeding one-sided information to the attorney (Volume II, Pages 7-29) (Petitioner Exhibit 35).

99. Most of the information Acevedo received was from the board president, Campos; and, surprisingly, Campos, the one who spearheaded the board’s reaction against the Respondent, was not present at the hearing to testify as to his account of the matter in question.

100. Acevedo admits that he never called the Respondent and advised him to post the agenda prior to directing others to do so and that he did not explain the functions of the posting requirements other than to tell Respondent to read the policy; and, he advised Respondent to get “advice” from someone else (Volume II, Pages 47-54).

101. Later Acevedo admits he only read the board policy to Respondent; otherwise, he did not volunteer any legal advice to the Respondent and told him to get his own attorney (Volume II, Pages 50-51).  

102. It is hard to believe that Acevedo was not aware of the need and impossibility of Liner being present for the board meetings on the days in question (Volume II, Page 54) or that he was not aware that the principal that the board hired, Gonzalez, had a tarnished record (Volume II, Page 6).

103. Other than the issue with regard to posting of the agenda, there was no testimony that any of the complaints listed in the Petitioner’s proposal to terminate the contract was ever brought up to the Respondent until the date of the proposed termination on December 2, 2011, though an inclination of some of those issues could be surmised based on the investigation which Ann Dixon was conducting for the board.

104. While Dixon, ISD’s investigator and expert, stated that the Respondent’s failure to apply for a much needed energy grant was a good cause for the termination, and assistant superintendent Perez believed that Respondent’s failure to apply for the grant was “criminal,” the fact remains that Perez’s testimony was biased and not credible, and that an energy grant could not have been applied for in such short notice. Though Perez testified that an energy audit was done a few weeks previously and that information could have been used for the grant, when the examiner asked him to produce the document, such document was a two year old document and needed to be updated before being used in a grant application (Respondent Exhibit 26). Furthermore, Perez’s testimony indicated that the board was more concerned with repairing the roof; and, that had to be done before any air conditioning could be placed on them (Volume I, Pages 247-256). According to a memo written by the person who notified Aleman (written after Respondent was suspended at the request of Perez), he gave the information to Respondent in early August, he stressed he was not qualified to make the application, and he noted Respondent was busy during that time and did not advise him again. (ISD 37, Attachment 6). It does not state he followed up with Respondent. Moreover, the deadline was September, 2011, and, the HVAC projects had to be completed by April 30, 2012 (and the roof needed to be repaired first). (ISD 37, Attachment 5). Given the fact that Respondent was on the job for a short period of time, it is not reasonable to place the burden on him, especially when some of his staff were grudgingly, allegedly helping and supporting him in his transition.

105. Although Dixon further stated that another reason for terminating the employment of Respondent was for his failure to participate in the required first time superintendent mentorship program, such program is one in which the Respondent has 18 months to complete the program, a one year mentorship (ISD Exhibit 37, Attachment 9). Thus, Respondent had time to begin his mentor ship and comply with it fully.

106. Though Dixon had issues with regard to contract services for Rodriguez Air Conditioning and Heating and LeRoy Air Conditioning and Heating, and believed that Respondent allowed these individuals to be paid out of accounts payable as independent contractors when they met the criteria of employees, it is not genuine to fault him for this matter at this early stage of his short-lived term of being Superintendent. These contract were made by the former interim superintendent Robert Rodriguez (Petitioner Exhibit 37, Attachment 15). In fact, they were for services prior to Respondent’s arrival (February 10, 2011 through June 10, 2001). During that time period these individuals would punch time cards (Petitioner Exhibit 37, Attachment 16) and were paid out of accounts payable (Petitioner Exhibit 37, Attachment 17). One of the two, even had child support payments remitted to the Attorney General. Neither of these agreements would meet the IRS guidelines of independent contractors (Respondent Exhibit 37, Attachment 12). However, these things were done prior to Respondent’s employment with the district. There is absolutely no evidence presented that these things were flagged to this newly hired superintendent by anyone in time for him to be faulted for the district’s failure. In fact, Liner had prepared a report identifying these things to the board prior to Respondent’s hiring and the board did nothing to correct the situation (Volume III, Page 149).

107. Liner’s report also indicated a concern with the board hiring a new high school principal prior to the new superintendent (Volume III, Page 149).

108. It also notes that members of the board were upset that the superintendent was looking into the background of the new principal, showing lack of concern by board members regarding the inscribed reprimand on John Gonzalez (Volume III, Pages 149-150). If Liner knew, it is not possible that board member Gonzalez could testify she had no knowledge of principal Gonzalez’s record as she did.

109. Despite the fact that there was a financial crisis, Liner further notes that the pressure had been exerted on the new superintendent to increase hiring (Volume III, Page 150).

110. As of September, 2011, Liner notes in his reports that the first signs of tension between the board and the superintendent were beginning to be evident as the superintendent begins to gather information and execute this plan changing some established norms regarding employee supervision and accountability. This change, according to Liner, is revealing conflicts between the status quo and operating under a new method (Volume III, Pages 152-153).

111. In the most recent Legislative Budget Report dated August, 2006, there was reference of the board of trustees over reaching their responsibilities in the day to day operations of the district; and, some of those board members were still board members, overlapping even during the proposed termination of Respondent (Volume III, Pages 139-142).

112. Given the short length of time he lasted in his position, Respondent did not fail to stay abreast of developments including current state laws, rules and regulations regarding educational leadership and administration as alleged.

113. Given the short length of time he lasted in his position, Respondent did not fail to demonstrate effective planning and management of the district administration, finances, operations and personnel by repeatedly failing to communicate and support efforts of district administration to make financially beneficial decisions on behalf of the district as alleged.

114. Given the short length of time he lasted in his position, Respondent did not fail to maintain a system of internal control to deter and monitor for fraud and financial impropriety in the district nor did he simultaneously act in a manner that would suggest fraud and financial impropriety as alleged.

115. Respondent did not fail to act in a professional manner towards employees by using inappropriate ethnic and religious slurs in reference to an employee to the extent alleged.

116. Petitioner failed to bring forth any evidence with regard to Respondent enrolling his daughter at the George Rolando Gutierrez Early Childhood School that was allegedly planned at the time of his hiring which allegedly caused embarrassment to the district and a public vote of no confidence by its educational leader and chief executive officer by enrolling her at Edinburg ISD. Furthermore, in his deposition,

Respondent explained his reason for his family‘s decision, and a review of his contract is replete of such any requirement. (See ISD’s Motion for Summary Judgment).

117. Respondent did fail to maintain a positive and professional working relationship with the board by entering into a mutual battle with the board and the media. Respondent did make negative comments about the board of trustees in general as well as individual board members did about him. To this end, Petitioner has proven point 6 in the letter of termination of December 2, 2011.

118. Respondent did not fail to maintain a positive and professional working relationship with the board by failing to articulate and support board policy to staff, but did fail

to do the same with regard to the community. Petitioner has proven point 7 in the letter of termination in part.

119. Respondent did not intentionally create community concern with respect to activities within the district by unnecessarily placing, potentially controversial action items in bolded language on the agenda.

120. Given this short tenure, Respondent did not fail to direct a proactive program of internal and external communication at all levels designed to improve staff and community understanding and support of the district.

121. Respondent did not fail to fulfill a duty or responsibility by refusing to post an agenda as requested and then removing the alleged lawfully posted agenda after the president of the board of trustees posted it.

122. Respondent did not intentionally misrepresent or violate a duty by extending the contract of an administrator without receiving board approval as alleged, nor by backdating the services agreement between the district and that individual.

123. Respondent did not fail to appropriately classify employees by classifying them as “independent contractors” in direct contravention of Internal Revenue Service guidelines regarding employee classification standards thereby placing the district at-risk of potential fines and other financial penalties.

124. Respondent did not provide false information regarding employment with Phoenix Union School district both on your employment application and to the media when Phoenix Union School District has no record of your employment.

125. Respondent did not fail to provide accurate information on your application for employment with the district by stating that your last employer was Arizona State University when either Arizona University, nor Phoenix Union School District have any record of your employment.

126. Given this short tenure, Respondent was not incompetent or inefficient in the performance of a required or assigned duties by repeatedly failing to understand basic laws that relate to the superintendent’s job requirements in the State of Texas, failing to appropriately delegate these tasks, and failing to seek guidance opportunities that are set forth in state regulations in order to increase your competency and efficiency.

127. Respondent did not break and/or refuse to participate in developing the trust/relationship with the board.

128. Given this short tenure, Respondent did not fail to be knowledgeable regarding board policy and administrative regulations, state and federal regulations and law regarding independent school districts.

129. Respondent did not fail to comply with 19 Texas Administrative Code §242.25, by failing to participate in the Texas first-time mentor ship program.

130. Respondent did not fail to remain accountable to the board of trustees in the performance of all duties, delegated or otherwise.

131. Respondent did not fail to comply with board policies, BJA (Legal); BJA (Local); DFBA (Legal).

132. Respondent did not abuse a school district superintendent’s power by failing to abide by the Code of Ethics and Standard Practices for Texas Educators, Policy DH.

133. Respondent did not misrepresent facts during an investigation in order to avoid disciplinary action.

134. Respondent did not fail to meet acceptable standards of conduct in your relationship to the board as alleged.

135. Respondent did not breach his employment contract.

136. Respondent did not violate any combination of any of the above stated reasons other than as articulated regarding numbers 6 and 7 above.

137. There is no additional good cause discovered after the date of this notice that was previously unknown to the district, including insubordination.

138. There is no reason constituting good cause for dismissing the employee during the contract term, other than as articulated concerning numbers 6 and 7 above.

139. The Petitioner is unreasonable in requiring Respondent to be knowledgeable and know everything about the district in the three and one-half months he served the district. The requirements of the superintendent are extensive. BJA (Local) ISD 37, Attachment 23).

140. Respondent should have sufficient maturity and/or knowledge not to enter into discussions with the media with regard to his concerns about the board and the board’s treatment of him.

Discussion

Petitioner alleges 27 separate charges for the proposed termination of Respondent’s contract. Overall, these allegations can be grouped into two categories: 1) failure to perform his job effectively as a superintendent; and 2) failure to maintain a positive work relationship and trust with the board. The board must prove good cause by a preponderance of the credible evidence. Good cause for discharging an employee is defined as the employee’s failure to perform the duties in the scope of employment that a person of ordinary prudence would have done under the same or similar circumstances. Kinsey v. Quinlan ISD, Docket No. 104-R2-598 (Comm’r, December 1998); BISD v. Sauceda, TEA Case No. 015-LH-1002 (March 4, 2003). Furthermore, an employee’s act can constitute good cause for discharge if it is inconsistent with the continued existence of the employer- employee relationship. Id. Nevertheless, good cause is a high standard and an employee must not only fail to perform as an ordinary employee would, but the failure must be of a serious nature. There is good cause to terminate a contract if the superintendent failed to perform as an ordinary employee would have, and the failing was of a serious nature. Kinsey v. Quinlan ISD, Docket No. 104-R2-598 (Comm’r, December 1998); BISD v. Sauceda, TEA Case No. 015-LH-1002 (March 4, 2003).

On a similar note, it is important to note that remediation is required in cases to the extent that the ordinary and prudent employee is not always perfect. The average employees do make mistakes and do need guidance. In these cases, the issue will be whether the average employee would make the mistake in question and is it a serious mistake. Certainly if a remediation has been offered and there is little improvement then that may also be good cause for termination. Baker v. Rice Consolidated Independent School District, Docket No. 227-R2-493 (Comm’r Edu. 1995). See also, BISD v. Sauceda, TEA Case No. 015-LH-1002 (March 4, 2003), and Johnson v. Houston Independent School District, Docket No. 074-R2-402 (Comm’r Edu. 2002).

The background of this case shows that Respondent had been hired approximately for three months before the turn of events occurred. Apparently, some of the problems stem from the inception of his taking the position. We note, from the testimony provided, at least with regard to the running of the operations and his job effectively, he was not being informed that there was errors in the manner in which he was handling his newly acquired work and responsibilities. Certainly, from the evidence obtained, help or guidance was not to be expected from certain members of his staff already placed in positions by the board. He was not given notice or an opportunity to correct anything that he alleged did wrong. Thus, with respect to those categories, Petitioner has not proven by the preponderance of the evidence that they can establish good cause for the proposed termination of Respondent.

On the other hand, with respect to the category concerning the relationship with the board, there is ample evidence in which an ordinary and prudent superintendent would know that the board members or individual board members had certain concerns. Furthermore, he notes that they are generally micro-managers and have historically been that way. He notes that it is hard to change old ways of doing work. He gave examples of how they tried to coerce him to hire certain individuals. Under those circumstances, the ordinary and prudent superintendent would find it incumbent upon him to keep the communication channel as open as possible which would mean sending out memorandums with regard to his concern(s), explaining what he was doing at all given times and continually documenting the information so that there is no confusion in the future. Workshops would be a good idea, and apparently one had occurred and others were being planned. (ISD Exhibit 39, Page 65). Mentorship could have begun earlier, so that advice could be given to him. It is an unusually difficult burden for Respondent, but one in which Respondent became well aware from the inception of his job when he realized he was now dealing with a principal hired by the board who had promised him to let him search for a principal for a failing high school. Thus, he could have simply allowed the agenda to be posted, but inform the board and its attorney in a memo that there were concerns, including being reported to TEA (which he apparently tired to do too late) and asked the president to reconsider his advice.

Though the actions of the Respondent in this case do not rise to the level of the Superintendent’s in the Kinsey and Sauceda cases, cited above, or the superintendent in San Antonio ISD v. Durbon, TEA Case No. 370-LH-0711 (2011), he nonetheless did not act as he should have under the circumstances and somewhat escalated the problem. As stated aptly in Kinsey v. Salado ISD, in sum, a close working relationship is essential. 950 F.2d 988 (5th Cir. 1992). This closeness is no longer existent in this case.

Though remediation is a possibility with respect to the first of the two issues, under the circumstances and in light of the transactions before the media between Respondent and the board, it seems that a trusting and a positive and professional working relationship cannot be saved because of the mutual actions of the parties. Furthermore, the actions of the Respondent culminated in a serious mistake. Had the board president, and ultimately the board, continued to act unfairly after he tried to use alternative means to express his disapproval and he had not made the same comments to the media (before his proposed termination) then remediation may have been possible, and perhaps he would not have been in this situation today.

Though this Examiner wishes he could have them start all over, and counsels the parties to soul-search on this advice, he finds that this, unfortunately, is likely no longer possible, at least by the actions and comments of the majority of the board and testimony of the only board member, Gonzalez, who testified of the alleged irreparable antagonism created between the board and the superintendent.

Conclusions of Law

After due consideration of the record and the matters officially noticed of the foregoing findings, in my capacity as Certified Hearing Examiner, I make the following conclusions of law:

1. Jurisdiction to hear this case is proper under the Texas Education Code Section 21.251.

2. The district has the burden of proof by a preponderance of the evidence that it has good cause to propose termination of the Respondent’s contract as articulated in the 27 reasons allegedly constituting good cause for dismissal of the employee in its letter of December 2, 2011 (ISD Exhibit 3).

3. The district has not met its burden with respect to 1, 2, 3, 4, 5, 7 (in part), 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26 and 27. The district has met its burden of proof by a preponderance of the evidence with respect to item number 6 and 7 (in part).

4. By making comments which were not positive about the board to the television and print media, Respondent failed to maintain a positive and professional relationship with the Petitioner’s board of trustees which is in direct violation of the ISD board policy BJA (Local), failed to perform his duties as a person of ordinary prudence would have done under the same or similar circumstances, and acted inconsistent with the employee-employer relationship in a manner which was serious enough such that remediation would not be required. Kinsey v. Quinlan ISD, Docket No. 104-R2-598 (Comm’r, December 1998); BISD v. Sauceda, TEA Case No. 015-LH-1002 (March 4, 2003); Baker v. Rice Consolidated Independent School District, Docket No. 227-R2-493 (Comm’r Edu. 1995) and Johnson v. Houston Independent School District, Docket No. 074-R2-402 (Comm’r Edu. 2002). The BJA (Local) states the superintendent’s duties include maintaining a positive and professional relationship with the board of trustees and the community. A serious breach of this duty is good cause for termination and does not require remediation. BISD v. Sauceda, TEA Case No. 015-LH-1002 (March 4, 2003).

Recommendation

After due consideration of the record and matters officially noticed, and the foregoing findings and conclusions law, in my capacity as a Certified Hearing Examiner, it is hereby, RECOMMENDED

To the Board of Trustees of the EDCOUCH-ELSA INDEPENDENT SCHOOL DISTRICT adopt the foregoing findings of fact and conclusions of law and enter an order consistent therewith.

SIGNED AND ISSUED this 2nd day of April, 2012.

___________________________________

FRANCISCO J. ZABARTE,

Certified Hearing Examiner

cc: Gilbert L. Vasquez, 814 Del Oro Lane, Pharr, Texas 78577

Jaime J. Munoz, P.O. Box 47, San Juan, Texas 78589

Ruben R. Pena, 2900 Central Blvd., Suite B, Brownsville, Texas 78521

Isabel Lozoria, Texas Education Agency, 1701 North Congress Avenue, Austin, Texas 78701-1494

Joseph Campos, President, Board of Trustees, Edcouch-Elsa ISD, P.O. Box 127, Edcouch, Texas 78538-0127

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