025R10052017 - Texas Education Agency



DOCKET NO. 025-R10-05-2017BILLY J. WRIGHT §BEFORE THE § §v. § COMMISSIONER OF EDUCATION §DALLAS §INDEPENDENT SCHOOL DISTRICT §THE STATE OF TEXASDECISION OF THE DESIGNEE OF THE COMMISSIONERStatement of the CasePetitioner, Billy J. Wright, complains of actions and decisions of Respondent, Dallas Independent School District (“Dallas ISD”). Merle Dover is the Administrative Law Judge appointed by the Commissioner of Education (“Commissioner”) to hear this cause. Petitioner is represented by Ray Jackson, Attorney at Law, Dallas, Texas. Respondent is represented by Kathryn E. Long and Van Pham, Attorneys at Law, Dallas, Texas.The Administrative Law Judge issued a Proposal for Decision recommending that Petitioner’s appeal be dismissed.The primary issues in this cause concern jurisdiction. The two principal issues are whether Petitioner has alleged a cause of action within the Commissioner’s jurisdiction and whether Petitioner has exhausted administrative remedies concerning that issue. In order to exhaust administrative remedies, a person may appeal an issue to the Commissioner under Texas Education Code section 7.057, only if the issue had first been timely brought to the school board.More is required than a school board’s denial of a grievance to invoke the Commissioner’s jurisdiction. The Petition for Review must be filed with the Commissioner within 45 calendar days after the decision, order, or ruling complained of is first communicated to the Petitioner. The petitioner must identify the particular section of the Texas Education Code or title 19 of the Texas Administrative Code alleged to have been violated and a brief description of how the section was violated. If the petition for review does not identify a school law allegedly violated, the Commissioner lacks jurisdiction over the claim. Because Petitioner failed to timely exhaust administrative remedies and because he failed to identify a violation of a school law of this state over which the Commissioner has jurisdiction, this case should be dismissed for failure to exhaust administrative remedies and lack of jurisdiction.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 in the local record and are the Findings of Fact that support Respondent’s Decision.The Petition for Review was filed with the Commissioner on April 8, 2017.Respondent filed a Plea to the Jurisdiction and Motion to Dismiss on July 11, 2017.Petitioner alleges Respondent violated district policies, federal law, Texas Education Code section 21.006 and 19 Texas Administrative Code section 249.14.Petitioner alleges that the district’s failure to conduct a complete and adequate investigation of the allegations leading to his placement on administrative leave with pay in May 2012 violated Texas Education Code section 21.006 and 19 Texas Administrative Code section 249.14.Through his Petition for Review, Petitioner is seeking to clear his name through a formal dismissal hearing and a complete investigation into the allegations that led to his placement on administrative leave with pay that includes his response to the allegations.Petitioner failed to file a grievance within 15 business days of being placed on administrative leave with pay in May 2012. Petitioner failed to file a grievance pursuant to the district grievance policy within 15 business days from the date that he knew, or reasonably should have known, the extent of the district’s investigation of his alleged misconduct. Petitioner did not file a grievance with Respondent until July 6, 2015, approximately three years after the actions of which he complains.Petitioner’s grievances are untimely.DiscussionExhaustion of Administrative RemediesPetitioner was a teacher in Dallas ISD during the 2011-2012 school year, employed under a term employment contract. Dallas ISD nonrenewed Petitioner’s employment contract in March 2012. The Notice of Nonrenewal advised Petitioner that he could appeal the nonrenewal by requesting a hearing within 15 days of receipt of the notice. Petitioner never timely appealed his nonrenewal. Moreover, his Petition for Review explicitly states that he is not now appealing his nonrenewal.On or about May 21, 2012, Petitioner was placed on administrative leave with pay due to allegations of misconduct made against him by a Dallas ISD student. Petitioner never attempted to timely grieve his placement on leave. Respondent’s decision to propose Petitioner’s contract for nonrenewal occurred approximately two months before the allegations of misconduct arose. Accordingly, Petitioner’s placement on administrative leave with pay is a separate employment action from the nonrenewal. Conflation of these two employment actions – proposal for non-renewal and placement on administrative leave – caused considerable confusion in this case. Regardless, Petitioner failed to grieve either employment action in a timely manner. In January 2015, Petitioner was acquitted of the criminal charges related to the allegations of misconduct.Petitioner completed an application for employment with Respondent in March 2015. On the application, he answered “No” to the question regarding whether he had ever been found guilty of, been arrested for, or charged with a felony or misdemeanor offense involving an offense committed against or involving children. On or about April 10, 2015, Respondent informed Petitioner that he was ineligible for rehire.On or about June 30, 2015, Petitioner filed a Level One Public Complaint seeking a due process hearing related to Respondent’s investigation into the allegations made against him in May 2012. Respondent’s Public Complaints Policy requires that a complaint be filed within 15 business days of the action that is the subject of the complaint and that an administrator shall hold a conference with the complainant within seven days of the complaint. Respondent’s General Counsel sent a letter to Petitioner on November 18, 2015 in response to his Level 1 Public Complaint. The letter stated that Petitioner did not comply with the timelines for a due process hearing related to his Proposed Nonrenewal, and further, that although he was found not guilty of the charges, he was required to answer the question on the employment application related to arrest affirmatively. The letter did not address the issues raised in the complaint of placement on administrative leave with pay and investigation by the district of the allegations leading to the decision to place Petitioner on leave.Petitioner filed a Level Two Public Complaint on November 20, 2015, adding the allegation that the District had failed to afford him a conference, as required by their Public Complaint policy. On June 20, 2016, Dallas ISD advised Petitioner that he would not receive a hearing due to his failure to follow timelines in district policy and state law. On January 24, 2017, Petitioner filed a Level Three Public Complaint reiterating his issues. On March 7, 2017, Petitioner was advised that his request for hearing was denied and the matter was closed.Whether a grievant timely files a grievance is an issue to be decided based on the school board’s grievance policy. A 15-day deadline for filing a grievance complies with the Texas Education Code and due process. The Texas Supreme Court has held that school boards are the ultimate interpreters of their policies. Petitioner did not file a grievance until approximately 3 years after the complained of actions. Petitioner’s grievances are untimely.Petitioner failed to exhaust administrative remedies by failing to timely file his grievances. Accordingly, the Commissioner lacks jurisdiction over this cause for failure to exhaust administrative remedies.School Laws of this StateA person may appeal to the Commissioner under Texas Education Code section 7.057, if the person is aggrieved by:(1) the school laws of the state; or (2) actions or decisions of any school district board of trustees that violate: (A) the school laws of the state; or(B) a provision of a written employment contract between the school district and a school district employee, if a violation causes or would cause monetary harm to the employee.The “school laws of the state” are defined as Title 1 and Title 2 of the Texas Education Code and rules adopted thereunder. The referenced rules are the rules adopted by the Commissioner or the State Board of Education. Local school board policies are not school laws of the state or rules for purposes of section 7.057. Similarly, by definition, the school laws of the state do not include federal law. Therefore, the Commissioner lacks jurisdiction over allegations of violation of school board policies and federal law.In his Petition for Review, Petitioner alleges that Respondent’s failure to conduct a complete and adequate investigation of the allegations leading to his placement on administrative leave with pay in May 2012 violated Texas Education Code section 21.006 and 19 Texas Administrative Code section 249.14. Texas Education Code section 21.006 and 19 Texas Administrative Code section 249.14 require a district’s superintendent to report certain educator misconduct to the State Board for Educator Certification, particularly misconduct involving abuse or unlawful acts with a student or minor. The State Board for Educator Certification regulates and oversees all aspects of the certification, continuing education, and standards of conduct of public school educators. The State Board for Educator Certification, not the Commissioner, is given the power to enforce Texas Education Code section 21.006 and its corresponding rule, 19 Administrative Code section 249.14.By failing to articulate a violation of the school laws of this state, Petitioner has failed to invoke the Commissioner’s jurisdiction over his claim. ExceptionsThe Proposal for Decision was issued on August 4, 2017. The deadline to file exceptions was September 3, 2017. September 3 was a Sunday and September 4 was Labor Day, and thus, the deadline to file exceptions became September 5, 2017. Petitioner served his exceptions by certified mail on September 9, 2017. The Commissioner received Petitioner’s exceptions on September 15, 2017. Accordingly, Petitioner’s exceptions are untimely and will not be considered.Conclusions of LawAfter due consideration of the record, matters officially noticed, and the foregoing Findings of Fact, in my capacity as the Designee of the Commissioner of Education, I make the following Conclusions of Law:The Commissioner lacks jurisdiction under Texas Education Code section 7.057(a)(2) if the petitioner fails to state an action or decision of a school district board of trustees that violates a school law of the state or a provision of a written employment contract between the school district and the school district employee, if a violation causes or would cause monetary harm to the employee.The Commissioner lacks jurisdiction over a cause under Texas Education Code section 7.057(a)(2) if the petitioner has not exhausted all available remedies before the school board.Pursuant to Respondent’s policies, Petitioner failed to timely file a grievance related to his claims.Petitioner failed to exhaust administrative remedies.The Commissioner lacks jurisdiction under Texas Education Code section 7.057(a)(1) if the petitioner fails to state a specific violation of the school laws of the state.The school laws of this state do not include district policies.The school laws of this state do not include federal law.The State Board for Educator Certification has jurisdiction over Texas Education Code section 21.006 and 19 Texas Administrative Code section 249.14.Petitioner fails to assert a claim stating a violation of a law over which the Commissioner has jurisdiction.The Commissioner lacks jurisdiction over this case under Texas Education Code section 7.057.This cause should be dismissed for failure to exhaust administrative remedies and lack of jurisdiction.OrderAfter due consideration of the record, matters officially noticed and the foregoing Findings of Fact and Conclusions of Law, in my capacity as Designee of the Commissioner of Education, it is herebyORDERED that the Petitioner’s appeal be, and is hereby, dismissed.SIGNED AND ISSUED this ______ day of ___________________, 2017.________________________________________________WILIAM J. WILSONDESIGNEE OF THE COMMISSIONER OF EDUCATIONSigned and issued on October 2, 2017 by William J. Wilson, Designee of the Commissioner of Education ................
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