Richeter v. Dallas ISD078-R10-06-2011



DOCKET NO. 078-R10-0611ESTRELLITA RICHTER§ BEFORE THE §§V.§ COMMISSIONER OF EDUCATION§DALLAS§INDEPENDENT SCHOOL DISTRICT§THE STATE OF TEXASDECISION OF THE COMMISSIONERStatement of the CasePetitioner, Estrellita Richter, appeals the denial of her grievance by Respondent, Dallas Independent School District. Christopher Maska is the Administrative Law Judge appointed by the Commissioner of Education to preside over this cause. Petitioner is represented by David C. Hill, Attorney at Law, Dallas Texas. Respondent is represented by Derrell A. Coleman, Attorney at Law, Dallas, Texas. The Administrative Law Judge issued a Proposal for Decision recommending that Petitioner’s appeal be granted. Exceptions and replies were timely filed and considered. This case concerns whether teaching at private schools and colleges in the Philippines counts for purposes of years of creditable service. Respondent pays its teachers based on years of creditable service and it bases its decisions on the Commissioner’s rules that determine years of creditable service for purposes of the state minimum salary schedule. The central issue in this case is whether the government of the Philippines accredits private schools and colleges. If it does, Petitioner is entitled to be credited for her years teaching at schools and colleges in the Philippines. Using the dictionary definition of “accredit,” to interpret the relevant rules, it is determined that the government of the Philippines does accredit private schools and colleges. The Philippine government accredits private schools and colleges that maintain standards which qualify graduates for admission to more specialized institutions or professional practice. A private school or college cannot operate and award degrees in the Philippines without the sanction of the Philippine government. Petitioner’s salary should be calculated by using the years she taught at private schools and colleges in the Philippines as years of creditable service. Findings of FactAfter due consideration of the record and matters officially noticed, it is concluded that the following Findings of Fact are supported by substantial evidence and are the Findings of Fact that best support Respondent’s decision.1.Petitioner is employed by Respondent as a teacher.2.Petitioner taught for eight years in private schools and colleges in the Philippines. All of these schools and colleges are accredited by the government of the Philippines.3.Respondent initially based Petitioner’s pay in part on her years of teaching in private schools and colleges in the Philippines.4.In January 2010, Respondent gave Petitioner notice that beginning September 21, 2010 Petitioner’s pay would no longer be based in part on her years of teaching in private schools and colleges in the Philippines.5.Respondent’s Compensation Guidelines 2009-2010 provides that creditable years of experience shall be determined in accordance with Texas Education Agency policies and regulations. DiscussionPetitioner argues that Respondent improperly compensated her when it decided to no longer recognize her years of service in Philippine private schools and colleges for salary purposes. Respondent denies its action was improper and maintains that the Commissioner lacks jurisdiction over this case because the Amended Petition for Review fails to state a basis for the Commissioner’s jurisdiction.JurisdictionRespondent contends that the Amended Petition for Review fails to invoke the Commissioner’s jurisdiction. The Amended Petition for Review makes clear that Petitioner is alleging that Respondent has not properly paid her according to its policies. The Amended Petition for Review properly alleges a violation of a written employment contract. However, while the Petition for Review alleges a violation of the “school laws of this state,” it does not specify what section of the Texas Education Code or title 19 of the Texas Administrative Code might have been violated. The Amended Petition for Review fails to properly allege a violation of the school laws of this state. Creditable Years of ExperienceRespondent, like most school districts, compensates teachers based on teaching experience. Respondent’s Compensation Guidelines 2009-2010 provides that creditable years of experience shall be determined in accordance with Texas Education Agency policies and regulations. This makes sense because the state required Minimum Salary Schedule for Certain Professional Staff is based on years of experience. Tex. Educ. Code § 21.402. By basing compensation on creditable years of service as defined in Texas Education policies, Respondent ensures that it does not fail to sufficiently compensate teachers as required by the Minimum Salary Schedule. The Commissioner is charged with making rules that determine what counts as a creditable year of experience for minimum salary purposes:(c)??The commissioner shall adopt rules for determining the experience for which a teacher, librarian, counselor, or nurse is to be given credit in placing the teacher, librarian, counselor, or nurse on the minimum salary schedule. A district shall credit the teacher, librarian, counselor, or nurse for each year of experience without regard to whether the years are consecutive.Tex. Educ. Code § 21.403(c). The Commissioner has adopted such rules. 19 Tex. Admin. Code § 153.1021. The dispute in the present case is mostly about the proper interpretation of 19 Tex. Admin. Code § 153.1021(h)(13), which recognizes years of teaching in foreign privates schools and colleges if the entities are accredited by the relevant foreign government:(h)??Requirements. Requirements for entities recognized for professional personnel are as follows:. . . (13)??Foreign public or private elementary and secondary schools, colleges, and universities.(A)??Employment in colleges or universities must be verified in the same manner as for Texas colleges or universities.(B)??For foreign public schools, colleges, and universities, accreditation by a recognized agency of the foreign country or by a recognized accrediting agency in the United States is required.(C)??For foreign private schools, colleges, and universities, accreditation must be by a recognized regional accrediting agency listed in subsection (a)(15) of this section, unless the requirements in subparagraph (E) of this paragraph are met.(D)??The accreditation status must be verified in the same manner as for public or private schools in the United States.(E)??Experience from foreign private schools, colleges, and universities that have been accredited by a recognized accrediting agency of the foreign country may be recognized for salary increment purposes, provided the minimum requirements in subsection (f) of this section are met. All relevant and credible information concerning accreditation must be provided to the Texas Education Agency. The recognized accrediting entity in the foreign country is the Department of Education or the Higher Education Authority of that foreign country. It is the responsibility of the foreign country to provide such relevant, credible, and accurate information before any credit is given. Such experience will be considered on an individual country basis. The placement on the minimum salary schedule will begin with the following contractual year (July 1-June 30) after the final approval is granted by the Texas Education Agency. The district or charter school is not liable for any previously non-compensated salary related to such experience.Change in CompensationPetitioner had been receiving salary from Respondent for years based upon creditable years of service for teaching in private schools in the Philippines when Respondent determined that a mistake had been made. Respondent concluded that years of teaching at private schools and colleges in the Philippines do not count as years of creditable service. Respondent points to emails between its staff and Texas Education Agency staff concerning the question of whether private schools and colleges in the Philippines are properly accredited. The emails from Texas Education Agency staff indicate it was determined that private schools and colleges in the Philippines cannot be properly accredited because the Philippines government does not accredit schools and colleges and neither does a recognized regional accrediting agency. These emails are not the result of the process established by 19 Tex. Admin. Code § 153.1021(h)(13). That process is to be used prior to an employee receiving pay. There is no rule concerning how a mistaken award of creditable service is to be handled. Rules cannot cover every possible contingency or they would be inordinately long. While the process established by 19 Tex. Admin. Code § 153.1021(h)(13) was not used, the standards established in this section are the standards to apply to this case.AccreditThe central dispute between the parties is whether or not the Philippine government accredits private schools. To resolve this dispute it is necessary to consider the meaning of the word “accredit”: 1: to give official authorization to or approval of: a to provide with credentials ; esp : to send (an envoy) with letters of authorization b : to recognize or vouch for as conforming with a standard c : to recognize (an educational institution) as maintaining standards that qualify the graduates for admission to higher or more specialized institutions or professional practice 2 : to consider or recognize as outstanding 3 : ATTRIBUTE CREDIT Merriam Webster’s Collegiate Dictionary, 10th ed., p.8. The first definition properly describes the word at issue in 19 Tex. Admin. Code § 153.1021(h)(13). Regulation of Private EntitiesIn order to determine whether the Philippine government accredits private schools and college, it must be determined whether the Philippine government’s actions concerning private schools and colleges meet the definition of “accredit.” As to the particular schools and colleges at issue, there are official documents in the record from either the Philippine Department of Education or the Philippine Commission of Higher Education which state that the schools and colleges are “duly recognized/accredited” by the relevant Philippine government agency. This would seem to indicate that the schools and colleges at issue are accredited by the Philippine government. Private SchoolsThere are two documents in the record that might seem to indicate that the Philippine government recognizes but does not accredit schools and colleges. A letter concerning schools reads in relevant part: Pursuant to the provisions of DeptEd Order No. 92, please be informed of the following:It is the policy that for schools which desire to meet the standards of quality over and above the minimum required for government recognition and in aid of its regulatory functions, the Department encourages the use of the mechanism of voluntary accreditation (Article V, Section 28)For purposes of the grant of deregulated status and other benefits, the Department recognizes the Federation of Accounting Agencies of the Philippines (FAAP) as the agency to certify, pursuant to its general or common standards, the accreditation status of schools and their programs (Article V, Section 29);In view of the above, the certification that your school is accredited is not issued by the Department but by the accrediting agency. FAAP (Tel. No. 632-927-9645) has the list of accredited private schools and based n this list, may be able to issue the certification that you need.This letter indicates that private schools in the Philippines must meet standards to be “recognized” by the Philippine government and that schools are encouraged to seek “accreditation” from a private organization that results in certain benefits. The fact that a private body grants “accreditation” does not mean that when a school is recognized by the Philippine government that using the dictionary definition of “accredit” that the school has not been accredited by the Philippine government. The fact that the term “accreditation” has a particular definition in DeptEd Order No. 92 does mean the term has the same definition in a rule adopted by the Commissioner of Education. This letter is in fact evidence that “recognition” by the Philippine Government meets the dictionary definition of “accredit.” To receive “recognition” a school is required to meet standards. Recognition is a required standard for a private school in the Philippines.A second letter from the Philippine government drafted to explain the first letter states:Thank you for bringing to my attention the misunderstanding inadvertently created by a communication released by the Director of the Bureau of Secondary Education in response to a query on school administration.In the context of Philippine Education, the Department of Education undertakes mandatory accreditation of private schools pursuant to the policy stipulated in Article IV Section 16 of the Manual of Regulations of Private Schools that “All private educational institutions shall be established in accordance with law and shall be subjected to reasonable supervision and regulation by the Government. No private school shall be established nor shall it operate any education program, whether formal or non-formal, except pursuant to law and in accordance with this Manual.” The accreditation process of the Department of Education aims to ensure the minimum standards are complied with. It culminates with the issuance to private schools of a permit to operate and/or Government Recognition by the Department’s Regional Offices. Private schools are authorized to graduate students based on Government Recognition.(Emphasis in original). This letter makes it clear that in the Philippines government recognition meets the dictionary definition of “accredit.” Not only must standards be met but unless those standards are met schools may not operate and degrees cannot be conferred. If a private school somehow was able to operate in the Philippines without government recognition, its graduates would not be awarded degrees and, therefore, would not qualify for admission to colleges or other advanced training. Any private school recognized by the Philippines Government is an “accredited” school as that term is used in 19 Tex. Admin. Code § 153.1021(h)(13). The mere use of the term “recognized” does not mean that private schools in the Philippines are not accredited by the government. The government documentation that indicates that all the schools and colleges at issue are “duly recognized/accredited” indicates the Philippine government realizes that its recognition is accreditation. There is no significant difference between the Philippine system and a Texas school district that is required by Texas Education Code section 11.001 to be accredited by the state but which seeks accreditation from a private accrediting agency such as the International Baccalaureate Organization.Private CollegesThe regulation of private colleges in the Philippines is similar to the regulation of private schools. A document from the Philippines Commission on Higher Education provides in relevant part:Commission On Higher Education (CMO) No. 01, Series 2005, Article II Institutional and Program Accreditation, provides that:Accreditation is a process for assessing and upgrading the educational quality of higher education institutions and programs through self-evaluation and peer review. It leads to the grant of accredited status by an accrediting agency and provides public recognition and information on educational quality.Program Accreditation refers to the individual programs of a higher education institution.Institutional Accreditation refers to the evaluation of a whole educational institution of which the guidelines and standards shall be formulated in collaboration with the existing federation/networks of accrediting agencies approved by CHED.The Commission on Higher Education (CHED) while acknowledging/recognizing reputable accrediting bodies, grants RECOGNITION to programs that have complied and satisfied the requirements of CHED’s Policies, Standards and Guidelines (PSGs) of particular programs. This allows the institutions to market their achievement standards higher than the government minimum.A college which meets the government policies, standards, and guidelines is recognized by the government. Non-government accreditation organizations certify that higher standards have been met. Any private college recognized by the Philippines Government is an “accredited” school as that term is used in 19 Tex. Admin. Code § 153.1021(h)(13). ConclusionPetitioner is entitled under Respondent’s policies to be compensated based on years of credible service. Petitioner’s years of teaching in private schools and colleges in the Philippines should be included as years of credible service for purposes of calculating Petitioner’s salary.Reply to ExceptionsRespondent has filed Exceptions to the Proposal for Decision, one exception will be addressed. Respondent objects to the use of the dictionary definition of “accredit.” Respondent contends since the term “accredited institution” is defined that there is no need to resort to a dictionary definition. The term “accredited institution” is defined at 19 Tex. Admin. Code § 153.1021(a)(1):Accredited institution--A public or private elementary, secondary, or post-secondary institution whose education program has been evaluated and deemed accredited by a state department of education or recognized regional accrediting agency.The problem with this definition is that it contains the words “accredited” and “accrediting.” One can only understand this definition if one already knows the meaning of the terms “accredited” and “accrediting.” Applying the dictionary definition of “accredit” to 19 Tex. Admin. Code § 153.1021(a)(1) leads to the conclusion that the institutions at issue in this case are accredited institutions. Conclusions of LawAfter due consideration of the record, matters officially noticed, and the foregoing Findings of Fact, in my capacity as Administrative Law Judge, I make the following Conclusions of Law:1.The Commissioner has jurisdiction over this case under Texas Education Code section 7.057(a)(2)(B). 2.The Commissioner lacks jurisdiction over this case under Texas Education Code section 7.057(a)(2)(A). 3.The word “accredit” as used in 19 Tex. Admin. Code § 153.1021(h)(13) means to give official authorization to or approval of: a to provide with credentials ; esp : to send (an envoy) with letters of authorization b : to recognize or vouch for as conforming with a standard c : to recognize (an educational institution) as maintaining standards that qualify the graduates for admission to higher or more specialized institutions or professional practice.4.When the Philippine Department of Education or the Philippine Commission of Higher Education determines that a private school or college is “duly recognized/accredited,” such private school or college has been accredited as that term is used in 19 Tex. Admin. Code § 153.1021(h)(13).5.Because all of the private schools and colleges that Petitioner taught at in the Philippines are accredited by the Philippine government, Petitioner is entitled to eight years of creditable years of service under 19 Tex. Admin. Code § 153.1021(h)(13).6.Because Respondent’s policy bases years of credible service on whether such years of creditable service would be allowed under Texas Education Agency rules, Petitioner is entitled to eight years of creditable service for her years teaching in Philippine schools and colleges for purposes of calculating her salary.7.The Amended Petition for Review should be granted.OrderAfter due consideration of the record, matters officially noticed and the foregoing Findings of Fact and Conclusions of Law, in my capacity as Commissioner of Education, it is herebyORDERED that the Petitioner’s appeal be, and is hereby, granted. Petitioner is entitled to eight years of creditable service for her years teaching in private Philippine schools and colleges for purposes of calculating her salary.SIGNED AND ISSUED this ______ day of ___________________, 2014.________________________________________________MICHAEL WILLIAMSCOMMISSIONER OF EDUCATIONSigned and issued on May 12, 2014 by Michael Williams, Commissioner of Education ................
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