Ritter.tea.state.tx.us



TEA DOCKET 303-LH-0511

HOUSTON I.S.D. § BEFORE KEVIN FORSBERG

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Petitioner §

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v. § CERTIFIED HEARING EXAMINER

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ALICE PATTEN §

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Respondent § THE STATE OF TEXAS

FINDINGS OF FACT AND CONCLUSIONS OF LAW

AND RECOMMENDATION OF THE HEARING EXAMINER

TO THE HONORABLE HEARING EXAMINER:

Based upon testimony and evidence admitted before the Hearing Examiner on July 15, 2011, the undersigned Hearing Examiner issues the following recommendation:

I.

FINDINGS OF FACT

1. By letter dated and received April 15, 2011, Ms. Patten received notice from HISD that a proposal to non-renew her term contract was pending before the Board of Trustees. Pet. Exh. 24; Tr. 25, 28, 31, 39. Ms. Patten had been an educator with HISD since 1981, and was placed on a continuing contract in 1984. See Pet. Exh. 1.

2. The notice of nonrenewal letter contains one reason for proposed nonrenewal as set forth in Board Policy DFBB (LOCAL), see Pet. Exh. 11, Bates No. 662.

No. 9 Reduction in force because of a financial exigency or program

change.

3. Ms. Patten requested a hearing pursuant to Chapter 21 of the Texas Education Code to challenge the proposed nonrenewal.

4. The parties agreed pursuant to Tex. Educ. Code § 21.257 (c), to extend by 45 days the Hearing Examiner’s deadline for issuing a recommendation.

5. A hearing was held on July 15, 2011 regarding the proposed nonrenewal.

6. During the hearing, the Petitioner presented evidence of the District’s 2011 reduction in force through a school closure to support the reason for nonrenewal listed in Ms. Patten’s notice letter.

7. Ms. Alice Patten (“Patten”) has been employed by Houston ISD since the 1981-1982 school year. Tr. p. 63. She formerly had a continuing contract but accepted a one-year probationary contract for the 1999-2000 school year (Pet. Exh. 1) as a compromise of termination proceedings against her (Pet. Exh. 2, Bates No. 312, Pet. Exh. 18 and 19).

8. No written contract was entered after the one-year probationary contract. Tr. 30, 32. HISD Board Policy DCC (LEGAL) and Tex. Educ. Code § 21.154 provide that a continuing contract teacher maintains her continuing contract until such time as the person is returned to probationary status.

9. HISD Board Policy DCC (LOCAL) provides that as of November 1, 1996, full-time certified teachers who have completed their probationary period shall be employed on term contracts. See also Pet. Exh. 25, HISD Board Policy DCB (LOCAL).

10. Campuses are allotted funds based on a per unit allotment (“PUA”) which is a specific amount of money per student allotted to the campus. The PUA is based on a formula set by Houston ISD based on state and local revenue and adjusted, or weighted, based on the demographics of the specific students on a particular campus. Pet. Exh. 23, Eaves Tr. p. 27, 3-15; p.28, 7-20; p.29,5-9; p. 30, 7-25; p. 31, 1-4.

11. The PUA affects the payment of employee salaries; the funding for campus programs; and the payment of all other campuses operating costs. Pet. Exh. 23, Eaves Tr. p. 17, 12-17.

12. In January of 2011, the Comptroller of the State provided information to the Legislature that there was going to be an anticipated $28 billion shortfall to the State. Houston ISD began developing a budget based on a potential $5 billion cut over the biennium. Pet. Exh. 23, Eves Tr. p.23, 5-11, 19-22.

13. Houston ISD did not tell principals which programs to reduce but they did advise that the level of funding would be cut. Principals were to make the decisions about the best course of action for their campuses to reduce the level of their budget. Pet. Exh. 23, Eaves Tr. p.31, 22-25; p. 32, 1-4.

14. HISD Board Policy DFF (LOCAL) (see Pet. Exh. 11, Bates No. 658-660) provides that a reduction in force may take place when the Superintendent determines that a reorganization or program change is required; the Board determines the employment areas to be affected, which include an individual campus; on recommendation of the Superintendent, the Board determines the employees within the affected employment for nonrenewal. Because the employment area in this instance was an entire campus, it was unnecessary to apply criteria in DFF (LOCAL) to determine which employees are proposed for nonrenewal. Tr. 53

15. On March 10, 2011, Agenda Item H-3 was presented to the Board in which the Superintendent notified the Board that he had determined in accordance with Policy DFF (LOCAL) a reduction in force for a restructuring and/or program change was necessary due to a loss of funding. Pet. Exh. 23, Eaves Tr. p.56,16-18; p. 65, 2; p.66,22-25; p.67,1-14.

16. The Superintendent recommended employment areas for the proposed RIF to the Board for approval. Pet. Exh. 23, Eaves Tr.p.78, 7-10.

17. The Board approved the employment areas recommended by the Superintendent for a RIF at the April 14, 2011 meeting.

18. The employment areas approved by the Board for a RIF included individual campuses. The employment areas approved by the Board included the closing of South District Alternative campus.

19. The employment area of South District Alternative was approved for elimination by the Board on April 14, 2011. Pet. Exh. 11, Bates No. 692-693, 697, 809, 813-814.

20. Once the Board acted to approve the employment areas, recommendation for nonrenewal of Ms. Patten came within the approved employment area for a RIF of employees at South District Alternative.

21. The closing of South District Alternative comes within the description of program change in HISD Policy DFF (LOCAL). It is a redirection of financial resources to meet the needs of the students by closing a campus to consolidate operations.

22. Ms. Patten’s principal, Ms. Smith made a recommendation to nonrenew the term contract of Ms. Patten due to a program change that closed the South District Alternative campus. Pet. Exh. 4.

23. On April 14, 2011, the Superintendent presented a closed session agenda to the Board which included a recommendation for proposed nonrenewal of Ms. Patten’s contract for a program change. Pet. Exh. 11, Bates No. 779, 782, 794, “Elimination of position due to reduction in force or program change.”

24. The Board approved the agenda item and approved giving notice to Ms. Patten that a proposal to non-renew her contract was pending. Id.

25. Patten received her noticed of proposed nonrenewal more than 45 days before the last day of instruction for the 2010-11 school year.

26. The reason proposed for nonrenewal is No. 9 of HISD Policy DFBB (LOCAL), a reduction in force due to the program change of the closing of the South District Alternative Campus. The closing was necessitated by law enrollment coupled with reduced funding within the District. Tr. 35, 37, 53

27. Consideration for an open position in compliance with Policy DFF (LOCAL) means considering a displaced employee who has the correct skill set, such as certification, for an open position.

28. Houston ISD developed a system of support for displaced employees which included an on-line Employee Toolkit which was a resource for employees regarding resumes, interview coaching, external employment support, support events and placement events. It included an Employee Support Inbox to answer questions, a Twitter account, an Opt-In-Survey, and Support Workshops on social networking, interview coaching and resume review. It included placement events at which displaced employees could meet and potentially interview with principals who had openings on their campuses. The placement events were April 30, May 21, June 21 and July 6, 2011. Pet Exh. 8, 20, 22.

29. The support system for displaced employees included recruiter referrals in which HISD recruiters watched for openings and contacted principals about displaced employees with the certification to fill the position. Id.

30. There was also a recruitment Google site where principals could access the resumes of those displaced employees who had posted their credentials to determine who might be qualified for a job opening. Id.

31. Displaced employees could register online for all events. They would receive information about all events if they completed the Opt-In Survey. Even those who were completely nonresponsive would get periodic email advising them of upcoming events and encouraging them to participate. Id.

32. Displaced employees had the opportunity to post a resume and other information about themselves so that principals with vacant positions could access that information online. Id.

33. Houston ISD also created an informational packet to give to displaced employees regarding the District’s support system for displaced employees. Id.

34. Patten applied for only one vacancy within HISD, and she applied the evening of the day before the hearing in this matter. Tr. pp. 80-81.

35. The central issue in this hearing is the type of contract Patten has, whether term or continuing. HISD overlooked her status following her return to probationary status, determining it was term only when it considered her in the context of the 2010-11 reduction in force. Tr. 37, 39, 54-55. Patten believed she returned to continuing contract status following her probationary contract.

36. The decision to non-renew Ms. Patten was not arbitrary or capricious.

37. Any conclusion of law deemed to be a finding of fact is hereby adopted as such.

II. DISCUSSION

This case presents an unusual set of circumstances that illustrates how important issues can literally fall through the cracks. Ms. Patten was originally an educator for the district under a continuing contract, when as a result of a settlement of a previous issue, she was given and she signed a probationary contract. That probationary contract expired under its own terms, and Ms. Patten was apparently never presented another contract, and no one with the District realized that Ms. Patten was without a signed contract. Even Ms. Patten’s principal at the time of her proposed non-renewal was under the impression that Ms. Patten was operating under a continuing contract, rather than a term contract. Ms. Patten asserts she believed she was operating under a continuing contract rather than a term contract based upon discussions between her and her former attorney at the time the probationary contract was issued.

The undersigned would assert that both parties share some responsibility for the confusion regarding Ms. Patten’s contract status. Certainly, the District has a responsibility to ensure contracts are issued as required by policy and that its educators sign and return contracts. Likewise, Ms. Patten retains some level of responsibility for knowing her contract status, and to ensure she has some type of written contract in place.

If it is determined that Ms. Patten has a continuing contract, then the notice of termination was fatally flawed, as was the termination process in general. However, if it determined that Ms. Patten has a term contract, then the District has met its burden, and a recommendation of termination is appropriate.

The facts of the case certainly create sympathy for Ms. Patten; the confusion regarding the contract and the effect the termination will have on her and family are deeply concerning and regrettable. However, the undersigned must be led by guiding legal principles. Based upon the law as the undersigned has reviewed, in relation to the facts presented at the hearing and the District’s policy, it appears the contract of Ms. Patten was in fact a term contract for the 2010-2011 school year.

As such, the recommendation non-renewal of the term contract is appropriate.

CONCLUSIONS OF LAW

1. The evidentiary hearing held on July 15, 2011, fully afforded Ms. Patten all due process required under the United States Constitution, the Texas Constitution, and the Texas Education Code.

2. According to the Texas Education Code § 21.256 (h), the District bears the burden of proof by a preponderance of the evidence.

3. Under Texas law in order to nonrenew a teacher’s contract, the District does not have to satisfy the good cause threshold, but only the existence of a violation of a pre-established reason for nonrenewal. Kinnard v. Morgan ISD, Docket No. 177- R1-699 (Comm’r Educ 1999); Kirby v. College Station I.S.D., Docket No, 109-R1598 (Comm’r Educ. 1998).

4. In this instance, a unilateral contract exists based on the board approved policies of HISD. City of Houston v. Williams, 2011 WL 923980 (Tex.), 54 Tex. Sup. Ct. J. 713 (2011). A unilateral employment contract is created when an employer promises an employee certain benefits in exchange for the employee’s performance, and the employee in turn performs.

5. HISD Board policies permit only a term contract in these circumstances. The Respondent’s probationary contract had the effect of terminating her continuing contract. Pet. Exh 1, § 13. HISD Board Policies DCC (LOCAL) at Exhibit B and DCB (LOCAL) at Pet. Exh. 25 require teachers who complete their probationary period on or after November 1, 1996 be employed on term contracts. This policy has a grandfather clause, but such clause states and implies that the employee have a valid contract. Id.; Tr. 31 To read otherwise would mean a continuing contract would never end, contrary to the several conditions, including return to probationary status, which Tex. Educ. Code § 21.154, codified in HISD Board Policy DCC (LEGAL).

6. The most relevant evidence with regard to the contract is Board policy. See Moore v. Knowles, 377 F. Supp. 302, 308-09 (N.D. Tex. 1974) (statements by superintendent were not sufficient to bind school district to contract for future employment with teacher). aff’d 512 F.2d 72 (5th Cir. 1975). See also Favero v. Huntsville Indep. Sch. Dist., 939 F. Supp.1281, 1294 (S.D. Tex. 1996) )(under Texas law, a school district can act only by and through its board of trustees), aff’d 110 F.3d 793 (5th Cir. 1997). For a governmental body to take action on a matter, the requirements of the Open Meetings Act must be followed. See Op. Tex. Att’y Gen. No. DM-95 (1991). Consequently, statements of individuals cannot bind the Board. While it is unfortunate Patten’s Principal, Ms. Smith, at one point believed she had a continuing contract, it does not bind the District, nor does her lawyer’s alleged belief when she agreed to a probationary contract nor her statement over the phone to an HISD Human Resources representative to whom Patten told she was a continuing contract teacher and the representative operated on that basis. Tr. 76-79.

7. The District proved by a preponderance of the evidence that Ms. Patten received appropriate notice of the proposal for nonrenewal more than 45 days before the last day of instruction for the 2010-2011 school year.

8. The District has established by a preponderance of the evidence the existence of one or more of the nonrenewal reasons listed in Board Policy DFBB (LOCAL), and therefore has met its burden to nonrenew term contract of Ms. Patten and employment with the District.

9. The District proved by a preponderance of the evidence Reason No. 9. In Policy DFBB (LOCAL) for the following areas:

No.9- Reduction in force because of financial exigency or program change.

10. The Superintendent of HISD determined the need for a reduction in force through a program change in March of 2011 in compliance with Policy DFF (LOCAL).

11. The HISD Board of Education approved the employment area of the South District Alternative campus as an area for a reduction in force in compliance with Policy DFF (LOCAL). Under Texas law, school districts have broad discretion to “to change its organizational structure to increase its efficiency.” Wassermann v. Nederland Indep. Sch. Dist., Docket No. 171-R1-784 (Comm’r Educ. 1988). The District’s recommendation to nonrenew the Respondent’s contract was based on its decision to eliminate a position at South District Alternative that attracted too few students to enroll in it to be of value to the student body. The District’s decision to implement this program change at South District Alternative should be given deference according to Texas law. Johnstone v. Tex. Educ. Agency, Docket. No. 330-R8-692, 354-R1-792 (Comm’r Educ. 1995) (holding that a district must be granted freedom and flexibility in the design and implementation of its educational programs in the context of a reduction in force); Ruiz v. Edinburg Indep. Sch. Dist., Docket. No. 241-R3-787 (Comm’r Educ. 1989) (“The power to allocate district resources is the very core of that discretionary authority delegated by law to local governing boards.”)

12. The Superintendent applied the RIF criteria to Ms. Patten appropriately in accordance with Policy DFF (LOCAL) because she was employed at the South District Alternative campus.

13. The District gave Patten proper consideration for any vacancies for which she qualified. Application by the employee for a vacant position is required. Amerson vs. Houston Independent School Dist., Docket No. 022-R2-1202 (Comm’r Educ. 2003). Here, Patten had applied for no positions except for one for which she submitted her application the evening before the hearing date and was thus pending on the date of the hearing. The District gave proper consideration.

14. The proposal to non-renew Ms. Patten’s one year term contract is not arbitrary or capricious.

15. Any conclusion of law deemed to be a finding of fact is hereby adopted as such.

III.

RECOMMENDATION

IT IS THEREFORE THE RECOMMENDATION OF THE UNDERSIGNED CERTIFIED HEARING EXAMINER THAT THE HOUSTON ISD BOARD OF TRUSTEES APPROVE OF THE ADMINISTRATION(S PROPOSAL OF NON-RENEWAL OF ALICE PATTEN’S TERM CONTRACT.

KEVIN A. FORSBERG

CERTIFIED HEARING EXAMINER

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