Proposal for Decision Shell



DOCKET NO. 087-R2-0807

LINDA GAYLE TILLIS § BEFORE THE

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V. § COMMISSIONER OF EDUCATION

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DALLAS INDEPENDENT §

SCHOOL DISTRICT § THE STATE OF TEXAS

DECISION OF THE COMMISSIONER

Statement of the Case

Petitioner, Linda Tillis, alleges that Respondent, Dallas Independent School District, has modified the recommendation of the hearing examiner regarding Petitioner’s proposed termination without providing a written reason and legal basis for the change in in violation of Texas Education Code sections 21.259(b) and (d). Joan Stewart is the Administrative Law Judge appointed by the Commissioner of Education to preside over this case. Petitioner is represented by Daniel A. Ortiz, Attorney at Law, Arlington, Texas. Respondent is represented by Lorraine J. Yancey, Attorney at Law, Dallas, Texas.

Findings of Fact

The following Findings of Fact are supported by substantial evidence:

1. The Findings of Fact proposed by the certified hearing examiner and adopted by Respondent’s board subcommittee are adopted as if fully set out herein.

2. Respondent proposed the termination of Petitioner’s teacher term contract.

3. The certified hearing examiner found that good cause did not exist to terminate Petitioner’s teacher employment contract.

4. The certified hearing examiner found that good cause exists for the suspension of Petitioner without pay for one month.

5. The certified hearing examiner recommended that Petitioner be suspended without pay for one month.

6. A subcommittee of Respondent’s board of trustees voted to “approve the findings of fact and conclusion of law and decision of the independent hearing examiner, that Linda Gayle Tillis be given a 30 – day suspension without pay and that she be placed on a one – year probation and growth plan.”

7. Respondent provided additional conditions to the hearing examiner’s recommendation.

8. Respondent changed the hearing examiner’s recommendation.

9. Respondent did not provide a written reason or legal basis for changing the hearing examiner’s recommendation.

Discussion

Background

The certified hearing examiner recommended that Petitioner be suspended without pay for one month. Respondent’s Board Subcommittee voted to “approve the findings of fact and conclusion of law and decision of the independent hearing examiner, that Linda Gayle Tillis be given a 30- day suspension without pay and that she be placed on a one-year probation and growth plan.” Petitioner complains that Respondent violated Texas Education Code §21.259 by changing the hearing examiner’s recommended relief without stating in writing the reason and legal basis for such change. Respondent argues that the district’s acceptance of the hearing examiner’s findings of fact and conclusions of law and recommendation followed by an announcement, without further action, of a future administrative procedure to place Petitioner on probation and a growth plan is not a violation of Texas Education Code section 21.259(d).

The Texas Education Code provides in pertinent part as follows:

§ 21.259. DECISION OF BOARD OF TRUSTEES OR BOARD

SUBCOMMITTEE.

(b) The board of trustees or board subcommittee may adopt,

reject, or change the hearing examiner's: …

(2) proposal for granting relief …

(d) The board of trustees or board subcommittee shall state

in writing the reason and legal basis for a change or rejection made

under this section.

Tex. Educ. Code §21.259(b).

Additional Conditions

The certified hearing examiner recommended that Petitioner be suspended without pay for one month. Respondent’s Board Subcommittee voted to “approve the findings of fact and conclusion of law and decision of the independent hearing examiner, that Linda Gayle Tillis be given a 30- day suspension without pay and that she be placed on a one-year probation and growth plan.” A board of trustees may modify the recommendation of the hearing examiner. If the board chooses to modify the recommendation of the hearing examiner it must provide a written reason and a legal basis for the change. Tex. Educ. Code §21.259(d). Respondent provided additional conditions to the recommendation of the hearing examiner but did not provide a written reason or legal basis for the additional conditions. The inclusion of additional conditions to the hearing examiner’s recommendation constitutes a change in the recommendation that was not properly supported by statute. Modification of the hearing examiner’s recommendation without written reason and written legal basis is noncompliance with the mandatory provisions of section 21.259 of the Texas Education Code. Goodie v. Houston Independent School District, Docket No. 002-R2-996 (Comm'r Educ. 1997). Failure to comply with the mandatory provisions for the modification of a hearing examiner recommendation and renders the decision arbitrary and capricious. . The additional sanction of one year probation and one year growth plan is overturned.

Preservation of Error

Respondent argues that Petitioner failed to brief the issue of whether the Hearing Examiner meant 30 or 31 calendar days or 30 or 31 working days in his recommendation to the board. Respondent states that Petitioner should not be permitted to address that issue after Respondent filed a Response Brief. Respondent argues that Petitioner has waived the issue of the duration of her suspension.

Petitioner’s brief states in pertinent part as follows:

Issues Presented: Whether DISD is required to state in writing the reason and legal basis for a change or rejection of the Recommendation of the Independent Hearing Examiner. Petitioner argues that “The Board Subcommittee did not adopt the Hearing Examiner’s recommendation without change. Petitioner argues that “the Commissioner and the courts have made clear that a board of trustees must state its reason and legal basis for any such change.” Petitioner states that “more recently, the Commissioner has reaffirmed §21.259(d) and the prior decisions in Cody v. Dallas ISD, in which the Commissioner granted the teacher’s appeal because the DISD failed to provide a written statement of the reason and the legal basis for changing the recommendation of the certified hearing examiner, in violation of §21.259(d), Texas Education Code. The Board Subcommittee herein also failed to state in writing the reason and legal basis for its change.” Petitioner in her Prayer requests that she be granted “that the Commissioner adopt the Hearing Examiner’s Recommendation and reverse the decision of Respondent’s Board Subcommittee to the extent such decision purports to include a one year probation and placement of Petitioner on a Growth Plan, and to the extent Respondent attempts or purports to attempt to suspend Petitioner’s employment for any period of time greater than one calendar month.”

Petitioner’s brief acquaints the Commissioner with the issue regarding the disputed change in the hearing examiner’s recommendation regarding length of time of Petitioner’s suspension. Petitioner has presented an argument in her brief including an allegation of a specific statutory violation and supporting case citations. Petitioner has briefed the issue of whether Respondent could change the suspension from one month to 30 days. The issue regarding the duration of Petitioner’s suspension has not been waived.

One Month

Respondent argues that if there is an issue regarding the duration of Petitioner’s suspension then the error was a failure of the hearing examiner to define one month. Respondent argues that such an error by could be corrected as a ministerial function through a nunc pro tunc order.

Nunc pro tunc has been held to be a doctrine of limited application.

“In considering a motion for judgment nunc pro tunc, the trial court may not focus on what judgment should have been rendered. Rather, the critical inquiry must be on what judgment was actually rendered by the trial court.” America’s Favorite Chicken Co., v. Galvan at 877, citing Wood v. Griffin & Brand, 671 S.W.2d 125, 128 (Tex.App.–Corpus Christi 1984, no writ). “If the judgment entered is the same as the judgment rendered, regardless of whether the rendition was incorrect, a trial court has no nunc pro tunc power to correct or modify the entered judgment after its plenary jurisdiction expires.” America’s Favorite Chicken Co., v. Galvan at 877, citing Escobar v. Escobar, 711 S.W.2d 230, 231 (Tex. 1986).

The doctrine of nunc pro tunc is inapplicable to the case at bar.

The certified hearing examiner recommended that Petitioner be “suspended for one month.” Respondent’s board subcommittee voted that Petitioner be “suspended for 30 days.” Petitioner states in her Petition for Review that “upon information and belief, Respondent has suspended or intends to suspend Petitioner without pay for 30 business days instead of one calendar month as recommended by the hearing examiner.” Respondent argues that the doctrine of de minimus non curat lex is applicable because any error was minimal. Respondent argues that a one month suspension means a suspension of no less than 30 working days. Respondent argues that the district cannot suspend Petitioner without pay on days that she is not assigned to work and days for which she is not paid, i.e., Saturdays and Sundays. Respondent argues that therefore a one month suspension must reasonably count working days only. It may be possible that a change in recommendation may be de minimus. Whether the change was in fact de minimus in the present case can only be determined by examining the distinction between “one month” and “thirty days.”

Black’s Law Dictionary provides as follows:

Month.1. One of the twelve periods of time in which the calendar is divided . – Also termed calendar month; civil month. 2. Any time period approximating 30 days . 3.At common law, a period of 28 days; the period of one revolution of the moon . – also termed lunar month. 4. One-twelfth of a tropical year; the time it takes the sun to pass through one sign of the zodiac, usu. Approximating 30 days - Also termed solar month.

Black’s Law Dictionary, 1024 (7th ed. 1999).

The hearing examiner recommended that Petitioner be suspended for one month. Respondent’s board voted to suspend Petitioner for 30 days. Petitioner does not dispute the hearing examiner’s recommendation to suspend Petitioner without pay for one month. Thirty consecutive calendar days is one month. The board’s vote to suspend Petitioner for 30 days is substantially the same as the hearing examiner recommendation to suspend Petitioner for one month. Thirty working days is more than one month. Respondent did not vote to suspend Petitioner for 30 working days. The board voted to suspend Petitioner for “30 days” which is substantially the same as the one month recommendation form the hearing examiner. This element of the hearing examiner’s recommendation was not modified. The change from “one month” to “thirty days” is a de minimus change. Respondent may suspend Petitioner without pay for one month not to exceed thirty consecutive calendar days.

Jurisdiction under 7.057

Petitioner argues that the Commissioner alternatively has jurisdiction over this appeal under 7.057 because Petitioner is complaining of an action or decision of Respondent that violates the school laws of this state and or that violates the provisions of a written employment contract which violation has caused or will cause monetary harm to Petitioner. Respondent argues that Petitioner has failed to state a claim under section 7.057 for which relief can be granted.

The Commissioner would have jurisdiction under section 7.057 only after a grievance has been properly filed regarding an allegation that Petitioner had been improperly suspended for more than one month based on a board decision that was improperly implemented, or placed on a growth plan or one year probation as a result of a board decision that was based on a hearing examiner recommendation that was modified in a manner that was not in compliance with the mandatory statutory procedures provided in section 21.259 of the Texas Education Code. In the instant appeal, there is no local record of a grievance appeal for the Commissioner to review regarding an allegation of Petitioner being improperly suspended for more than one month because of a board decision that was improperly implemented. There is no record for the Commissioner to review regarding Petitioner’s placement on a growth plan and one year on probation as a result of a hearing examiner’s recommendation that was unlawfully modified. The Texas Supreme Court held:

“When a cause of action is derived from a statute, the statutory provisions are mandatory and exclusive and must be complied with in all respects or the action is not maintainable, for lack of jurisdiction.”

Grounds v. Tolar, 707 S.W.2d 889, 891-892 (Tex. 1986); citations omitted. Petitioner has not followed the mandatory statutory provisions of section 7.057 of the Texas Education Code and, therefore, her action is not maintainable under that section for lack of jurisdiction.

Conclusion

The Commissioner has jurisdiction over this appeal under section 21.301 of the Texas Education Code. Petitioner has not waived the element of the appeal that challenges the length of time of Petitioner’s suspension. Thirty consecutive calendar days is equivalent to one month. Thirty business days is not equivalent to one month. To properly change the recommendation of a certified hearing examiner, Respondent must provide the written reason and legal basis for the change. Respondent modified the certified hearing examiner’s recommendation without providing a written reason or legal basis. The Commissioner of Education does not have jurisdiction over Petitioner’s appeal under section 7.057.

The board may not modify the recommendation of the hearing examiner without written reason or legal basis. The Commissioner hereby adopts the recommendation of the hearing examiner. The decision of the board of trustees to the extent that it modifies the hearing examiner’s recommendation is overturned. Respondent may suspend Petitioner without pay for one month not to exceed thirty consecutive calendar days. The additional sanction of one year probation and one year growth plan is overturned. Petitioner’s appeal is granted in part. A copy of this decision shall be kept in Petitioner’s personnel file.

Conclusions of Law

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

1. The Conclusions of Law proposed by the certified hearing examiner and adopted by Respondent’s board subcommittee are adopted as if fully set out herein

2. The Recommendation of the certified hearing examiner is adopted as if fully set out herein.

3. The Commissioner has jurisdiction over this claim under Texas Education Code section 21.301.

4. The certified hearing examiner recommended that Petitioner be “suspended without pay for one month.” Respondent voted to give Petitioner a “30 – day suspension without pay and that she be placed on a one – year probation and growth plan.”

5. Respondent provided the additional conditions of a one year probation and one year growth plan.

6. Additional conditions constitute a change in the hearing examiner’s recommendation.

7. District may change the recommendation of the hearing examiner. Tex. Educ. Code §21.259

8. If the board changes the recommendation of the hearing examiner the board must provide in writing the reason and the legal basis for the change. Tex. Educ. Code §21.259.

9. Failure to provide the reason in writing and the legal basis for modification of the hearing examiner recommendation is a failure to comply with the mandatory provisions for the modification of a hearing examiner recommendation and renders the decision arbitrary and capricious. Tex. Educ. Code §21.259.

10. Respondent failed to comply with Texas Education Code section 21.259 when it provided additional conditions to the recommendation of the certified hearing examiner without providing the written reason and legal basis for the modification. Tex. Educ. Code §21.259

11. Thirty consecutive calendar days is equivalent to one month.

12. Thirty working days is more than one month.

13. Respondent’s change regarding the time period of the suspension should be interpreted to mean 30 consecutive calendar days. As such the change is de minimus.

14. Respondent did not modify the hearing examiner’s recommendation regarding suspension without pay for one month.

15. The Commissioner lacks jurisdiction over this claim under Texas Education Code section 7.057.

16. Respondent may suspend Petitioner without pay for one month not to exceed thirty consecutive calendar days.

17. The additional sanction of one year probation and one year growth plan is overturned.

18. The Commissioner lacks jurisdiction over this claim under Texas Education Code section 7.057.

19. Petitioner’s appeal should be granted in part.

ORDER

After 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 hereby

ORDERED that Petitioner’s appeal be, and is hereby GRANTED in part.

FURTHER ORDERED that Respondent may suspend Petitioner without pay for one month not to exceed thirty consecutive calendar days.

FURTHER ORDERED that the additional sanction of one year probation and one year growth plan is overturned.

SIGNED AND ISSUED this ______ day of _______________________, 2007.

______________________________________

ROBERT SCOTT

ACTING COMMISSIONER OF EDUCATION

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