TEA DOCKET NO



TEA DOCKET NO. 084-LH-0408

SAN ANTONIO INDEPENDENT § BEFORE MARK FRAZIER

SCHOOL DISTRICT, §

Petitioner §

§

§ CERTIFIED HEARINGS

§ EXAMINER

v. §

§

WALLIE J. PEREZ, §

Respondent § STATE OF TEXAS

RECOMMENDATION OF HEARINGS EXAMINER

Statement of the Case

Respondent, Wallie J. Perez (Mr. Perez), appeals the decision of Petitioner, San Antonio Independent School District (SAISD) to propose that his continuing contract of employment as a teacher be terminated.

Mr. Perez represented himself at the hearing on this matter on June 3, 2008, and SAISD was represented by Philip Marzec, with the law firm of Escamilla & Poneck, Inc., in San Antonio, Texas.

Findings 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 (any citations to evidence are intended to indicate some of the basis for a particular Finding of Fact, but are not necessarily exhaustive):

1. Mr. Perez is currently employed by SAISD as a special education teacher at Longfellow Middle School pursuant to a continuing contract of employment for the 2007-2008 school year. [Transcript, Pages 11-13, Petitioner’s Exhibits P-1 and P2].

2. Mr. Perez’ continuing contract of employment obligates him to comply with state and federal law and regulations, the regulations and procedures of the Texas Education Agency, and all SAISD policies, rules, regulations and directives, and the policies, rules, regulations and directives for his particular teaching assignment within SAISD. [Petitioner’s Exhibits P-1 and P-2].

3. Mr. Perez had access to the 2007-2008 SAISD Employee Handbook and all SAISD Board Policies and Administrative Procedures during the term of his continuing contract for the 2007-2008 school year. [Transcript, Pages 14 and 90].

4. The 2007-2008 SAISD Employee Handbook specifically addresses SAISD Board policies regarding leaves and absences, employee arrests and convictions, and employee standards of conduct. [Petitioner’s Exhibit P-11].

5. SAISD Board Policies DEC (LEGAL) and DEC (LOCAL) set forth SAISD policies on leaves and absences. Those policies allow employees to be away from work for Personal Leave, Sick Leave, Assault Leave, Family and Medical Leave, Temporary Disability Leave, Military Leave, Religious Observances, Compliance with Subpoena, Jury Duty, and Developmental Leave. Those policies also authorize SAISD to terminate the employment of an employee who is unable to report to work and has no earned paid leave available and has not requested a leave of absence, if eligible. [Petitioner’s Exhibits P-3 and P-4].

6. SAISD Board Policy DH (LOCAL) sets forth SAISD’s Employee Standards of Conduct and states that a violation of any policies, procedures or guidelines may result in disciplinary action, including termination of employment. The Employee Standards of Conduct include a requirement that employees notify their principal or immediate supervisor and the human resources department within three workdays of any arrest, indictment, conviction, no contest or guilty plea, or other adjudication of the employee for any felony, any offense involving moral turpitude (which includes any crime involving deliberate violence). [Petitioner’s Exhibit P-5].

7. SAISD Administrative Procedure D-Personnel No. 35 sets forth an additional requirement that employees arrested, charged with, convicted of, granted deferred adjudication or who plead nolo contendere to any felony or misdemeanor involving moral turpitude must notify the Associate Superintendent for Human Resources in writing within three business days thereafter, and states that failure to provide such written notice will constitute grounds for termination. [Petitioner’s Exhibit P-10].

8. SAISD Board Policy DH (EXHIBIT) sets forth the Code of Ethics and Standard Practices for Texas Educators. Standard 1.7 states that educators shall comply with state regulations, written local school board policies, and other applicable state and federal laws. [Petitioner’s Exhibit P-6].

9. Mr. Perez was arrested in San Antonio, Texas on August 28, 2007 and charged with the crime of ‘Assault Bodily Injury-Married,’ based on an altercation with his wife, Nancy Perez, that evening that included Mr. Perez pushing his wife, kicking in a bedroom door while his wife and children were in the bedroom, and throwing various objects in his home. Mr. Perez returned to work the next day, but did not report his arrest verbally or in writing to anyone at SAISD until the matter was brought to his attention during a conference on September 5, 2007 with Ms. Sylvia Reyna, SAISD’s Human Resources Administrator, which she called for the purpose of investigating the incident. During that conference, Mr. Perez was presented with a written directive from SAISD’s Associate Superintendent for Human Resources instructing him to report in writing within three days any further arrests or changes in his criminal history, including the final adjudication of the August 28, 2007 incident, in accordance with SAISD Administrative Procedure D-Personnel No. 35 and warning him that failure to do so will constitute grounds for termination of his employment. During the conference, Mr. Perez also agreed to attend anger management training at the request of SAISD. [Petitioner’s Exhibits P-12, P-13, P-14, P-28 and P-29; Transcript Pages 20-43].

10. On or about September 20, 2007, the 407th District Court of Bexar County, Texas, issued a Protective Order directing Mr. Perez to stay away from and not communicate with his wife. Mr. Perez’ wife filed affidavits with the police department alleging that he violated this Protective Order on two separate occasions, October 27, 2007, and November 10, 2007. On November 10, 2007, Mr. Perez was again arrested when police officer’s caught him in the vicinity of his home in which his wife resided after he had approached the home in apparent violation of the Protective Order. Mr. Perez was released from jail on bond on November 13, 2007. Mr. Perez provided verbal notice of his arrest to Ms. Reyna upon his release on November 13, 2007, but did not provide written notice of the arrest to the Associate Superintendent for Human Resources in accordance with SAISD Administrative Procedure D-Personnel No. 35 [Petitioner’s Exhibits P-23, P-31, P-33 and P-34; Transcript Pages 44-65].

11. Mr. Perez was again arrested on February 20, 2008 for violation of the Protective Order on November 10, 2007 after the case was transferred to County Court at Law No. 7, Bexar County, Texas. Mr. Perez was unable to make bail and remained in custody from February 20, 2008 until April 18, 2008, when he pleaded nolo contendere to the Class A misdemeanor charges of ‘Assault Bodily Injury-Married’ and ‘Violation of Protective Order.’ [Petitioner’s Exhibits P-19, P-20, P-21, P-22, P-25, P-30, P-33, P-34 and P-38; Transcript Pages 66-74].

12. At the time of his arrest on February 20, 2008, Mr. Perez had 1.2 days of earned personal leave remaining with SAISD and was not eligible for any leave of absence that is provided by SAISD. Mr. Perez was absent from work for approximately 42 days between his incarceration on February 20, 2008 and April 24, 2008. [Petitioner’s Exhibit 40, second numbered 15 response to request for admissions; Transcript Pages 70, 81-82, 102 and 130-131].

13. Mr. Perez’ sister contacted someone in the offices of Ms. Thompson, the Associate Superintendent for Human Resources, by telephone sometime in February 2008 to inform SAISD of his arrest on February 20, 2008, but no written notice of the arrest was provided to SAISD in accordance with SAISD Administrative Procedure D-Personnel No. 35.

14. Mr. Perez did not provide written notice to Ms. Thompson of his pleas of nolo contendere within three days as required by SAISD Administrative Procedure D-Personnel No. 35. [Transcript Page 105].

15. The misdemeanor charges of ‘Assault Bodily Injury-Married’ and ‘Violation of Protective Order’ to which Mr. Perez pled nolo contendere relate to a crime involving moral turpitude and deliberate violence. [Petitioner’s Exhibits P-12, P-13, P-14, P-28 and P-29; Transcript Pages 20-43 and 74].

16. By letter dated March 25, 2008, Ms. Thompson provided Mr. Perez notice that the SAISD Board of Trustees voted to propose the termination of his continuing contract of employment for good cause based on his failure to (1) meet the acceptable standards of good conduct for the profession as generally recognized and applied in similarly situated school districts in Texas; (2) fulfill a duty or responsibility; (3) comply with a Board policy or administrative regulation; (4) meet SAISD’s standards of professional conduct; (5) comply with SAISD Policy DH (LOCAL) and DH (EXHIBIT); and (6) comply with SAISD Policy DEC (LOCAL). Mr. Perez received this notice letter and requested a hearing by an independent hearings examiner pursuant to Chapter 21 of the Texas Education Code. [Petitioner’s Exhibit P-39; Transcript Page 71, and Judicial Notice].

17. Mr. Perez’ failure to report to work for approximately 42 days from February 21, 2008 to April 24, 2008 at a time when he had only 1.2 days of earned paid leave available and was not eligible for nor requested a leave of absence constitutes a violation of SAISD Board Policies DEC (LEGAL) and DEC (LOCAL).

18. Mr. Perez’ repeated failure to notify his principal or immediate supervisor and the human resources department within three workdays of his arrests and no contest pleas for his offenses involving moral turpitude and deliberate violence and his failure to provide written notice of such actions to the Associate Superintendent for Human Resources in writing within three business days thereafter constitute violations of SAISD Board Policies DH (LOCAL) and DH (EXHIBIT) and SAISD Administrative Procedure D-Personnel No. 35.

19. “Good Cause” does exist for SAISD to terminate Mr. Perez’ continuing contract of employment.

Discussion

SAISD must prove by a preponderance of the evidence that it has good cause to terminate Mr. Perez’ continuing contract of employment. The great weight of credible evidence in this case supports a finding of good cause to terminate Mr. Perez’ employment contract. Mr. Perez clearly committed a crime of moral turpitude involving deliberate violence, repeatedly violated SAISD policies regarding written notice of arrests and convictions, and failed to report for work for a substantial amount of time without sufficient personal leave or other acceptable leave to cover that period of absence. All of these actions violate SAISD policies as enumerated in the preceding Findings of Fact. The facts that led to Mr. Perez’ incarceration for an extended period of time while awaiting trial during the Spring 2008 semester are very unfortunate, but they do not excuse Mr. Perez’ actions in violation of SAISD policies or diminish the right of SAISD to pursue termination of his employment contract for such policy violations. Mr. Perez was reminded in writing of his obligations to provide prompt written notice to SAISD officials of any arrests, changes in criminal history and final adjudications of criminal charges at the beginning of the 2007-2008 school year, yet he repeatedly failed to comply with these requirements. Mr. Perez was also fully aware of the SAISD leave and absence policies and knew at the time of his incarceration on February 20, 2008 that he had insufficient earned personal leave to cover an extended stay in jail.

There was insufficient credible evidence in the record to find that Mr. Perez lied to or misled SAISD officials with respect to his behavior during the altercation with his wife on August 28, 2007 or with respect to the final adjudication of the criminal charges lodged against him.

Conclusions of Law

After due consideration of the record, matters officially noticed, and the foregoing Findings of Fact, in my capacity as Hearings Examiner, I make the following conclusions of law:

1. The Hearings Examiner has jurisdiction of this subject matter pursuant to Chapter 21, Subchapter F, Section 21.251 of the Texas Education Code.

2. Mr. Perez failed to meet the acceptable standards of good conduct for the profession as generally recognized and applied in similarly situated school districts in Texas while employed by SAISD as a special education teacher at Longfellow Middle School during the 2007-2008 school year.

3. Mr. Perez failed to fulfill a duty or responsibility while employed by SAISD as a special education teacher at Longfellow Middle School during the 2007-2008 school year.

4. Mr. Perez failed to comply with a Board policy or administrative regulation while employed by SAISD as a special education teacher at Longfellow Middle School during the 2007-2008 school year.

5. Mr. Perez failed to meet SAISD’s standards of professional conduct while employed by SAISD as a special education teacher at Longfellow Middle School during the 2007-2008 school year.

6. Mr. Perez failed to comply with SAISD Policies DH (LOCAL), DH (EXHIBIT), DEC (LOCAL), DEC (LEGAL) and SAISD Administrative Procedure D-Personnel No. 35 while employed by SAISD as a special education teacher at Longfellow Middle School during the 2007-2008 school year.

7. ‘Good cause,’ as defined in Chapter 21, Subchapter E, Section 21.211 of the Texas Education Code, does exist for termination of Mr. Perez’ continuing contract of employment with SAISD.

Recommendation

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

RECOMMENDED that the Board of Trustees of SAISD adopt the foregoing Findings of Fact and Conclusions of Law, and take whatever action it deems appropriate with respect to the proposed termination of Mr. Perez’ continuing contract of employment.

SIGNED on this 19th day of June, 2008.

______________________________

Mark Frazier

Certified Hearings Examiner

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