DOCKET NO. 185-R2-597 .tx.us



DOCKET NO. 185-R2-597

KIM McGILVRAY § BEFORE THE

§

§

V. § COMMISSIONER OF EDUCATION

§

BOYD INDEPENDENT §

SCHOOL DISTRICT § THE STATE OF TEXAS

DECISION OF THE COMMISSIONER

Statement of the Case

Petitioner, Kim McGilvray, appeals Respondent’s, Boyd Independent School District’s, decision to terminate her term contract.

Christopher Maska was the Administrative Law Judge appointed by the Commissioner of Education to preside over this cause. Petitioner was represented by Mr. Daniel A. Ortiz, Attorney at Law, Arlington, Texas. Respondent was represented by Mr. Randel B. Gibbs, Attorney at Law, Dallas, Texas.

Findings of Fact

1. On April 29, 1997, Respondent, Boyd Independent School District, announced its decision terminating Petitioner’s, Kim McGilvray’s, contract.

2. Petitioner filed her Petition for Review on May 16, 1997.

Discussion

Petitioner objects that the board of trustees did not review the record, that board members were biased[1], that good cause does not exist to terminate Petitioner’s contract, and that the board’s decision is arbitrary, capricious, unlawful, made in bad faith, and/or not supported by substantial evidence.

Reviewing the Record

Petitioner points out that a board of trustees is required to review the record:

The board of trustees or a subcommittee designated by the board shall consider the recommendation and record of the hearing examiner at the first board meeting for which notice can be posted in compliance with Chapter 551, Government Code, following the issuance of the recommendation. The meeting must be held not later than the 20th day after the date that the president of the board receives the hearing examiner’s recommendation and record of the hearing.

Texas Education Code §21.258 (a). Respondent contends that a hearing examiner’s recommendation and record are the same thing and even if they are not, a board does not have to read the record of the hearing, unless it decides to change a finding of fact made by a certified hearing examiner.

Respondent points out that in the above quoted section, two different references to the record are made. In the first sentence, reference is made to the “record of the hearing examiner.” In the second sentence, reference is made to the “record of the hearing.” Respondent contends that the “record of the hearing examiner” is what a hearing examiner is required to make under Texas Education Code §21.257 (a). However, this section reads:

Not later than the 45th day after the date on which the commissioner receives a teacher’s written request for a hearing, the hearing examiner shall complete the hearing and make a written recommendation that:

(1) includes findings of fact and conclusions of law; and

(2) may include a proposal for granting relief.

Texas Education Code §21.257 (a). This document is referred to as a recommendation not as a record.

Respondent also points to the requirement of reviewing a record before a change to a finding of fact may be made:

The board of trustees or board subcommittee may reject or change a finding of fact made by the hearing examiner only after reviewing the record of the proceedings before the hearing examiner and only if the finding of fact is not supported by substantial evidence.

Texas Education Code §21.259 (c). Respondent argues why would the statute require a review of the record of the hearing for the specific purpose of changing findings of fact, if reviewing the record of the hearing was always a requirement. Respondent might be correct if Texas Education Code §21.259 was the only reference to reviewing or considering a record. In that case, the doctrine of inclusio unius est exclusio alterius[2] would apply as alleged. If there were no other references to reviewing a record, the only time reviewing a record would be required would be in the case of changing findings of fact.

One reason why Texas Education Code §21.259 (c) requires reading the record is that this section gives a unique role to school boards. Unlike the Commissioner or the reviewing courts, a board not only gets to determine if a finding of fact is supported by substantial evidence, but it also gets to change a finding of fact that is not supported by substantial evidence. In making a finding of fact, it is vitally important that one considers the evidence. By reemphasizing the need to review the record, the Legislature was highlighting that particular attention to the record is necessary when making findings of fact.

Upon reviewing the statute as a whole, it is clear that the phrase “record of the hearing examiner” does not mean the hearing examiner’s recommendation. The “record of the hearing examiner” is the transcript and exhibits from the hearing on the merits along with all correspondence, and interlocutory orders issued by the hearing examiner.

As pointed out above, a board needs to consider or review the record. This does not mean that each board member must read every word. The consideration or review required will vary. For example, if the only issue raised is a pure legal question, the only benefit to reviewing the record may be to show that the objection was not waived. It is left to the sound discretion of each board member to determine just how much review is required.

In the present case, the board members did not attempt any type of consideration of the record. This is clearly a violation of the statute. The board did not have the option of not considering the record. The only way the board could determine whether there was substantial evidence to support the decision of the certified hearing examiner would be for the board to review the record and determine if any reasonable fact finder could make the findings of fact made by the certified hearing examiner. The statute allows boards of trustees to review recommendations of certified hearing examiners for a reason. By not considering the record, the board members neglected their duties and made a decision that they could not defend.

The question then becomes what would result from this failing. Contrary to Petitioner’s claim, this is a procedural violation. The board failed to follow the procedural requirement of considering the record. The Commissioner may not reverse a decision of a board of trustees for a procedural irregularity unless “the error was likely to have led to an erroneous decision of the board.” Texas Education Code §21.303(c). In this case, the board did not change the decision of the certified hearing examiner. Hence, the board acted only as an appellate body. The board did not, and could not, hear evidence. The board used the exact same legal standard to review the decision of the certified hearing examiner as would be used by the Commissioner or the courts. The board’s decision in case could only be found to have likely led to error if, in fact, a legal error in the decision can be demonstrated[3].

Board Bias

Petitioner alleges that members of the board of trustees were biased against her. Petitioner points out that, while the termination hearing was heard by a certified hearing examiner, the board decided to hold its own hearing about the events in question. Members of the public addressed the board and the board deliberated about what they had heard in closed session. This procedure does leave one with an appearance of impropriety[4]. However, as has been noted, the board’s role in this case was solely to make legal determinations. The board received a recommendation from a certified hearing examiner and affirmed the recommendation. The board did not change any findings of fact. Any bias by the board did not lead to the facts being slanted. Any legal determination made by the board is not presumed to be valid. The question for the Commissioner to consider is whether or not this appearance of impropriety led to an improper legal decision.

Good Cause

Petitioner contends that the failings found against her do not rise to the level of good cause. In particular, she contends that the finding of reduced effectiveness diverges from precedent and the findings concerning the Family Education Rights and Privacy Act (hereinafter, “FERPA”) are insufficient to support termination.

Reduced Effectiveness

Concerning reduced effectiveness, some background is required. A juvenile probation officer was going to present a program to sixth graders involving peer pressure, gangs, drugs and alcohol. Petitioner decided to prepare a list of students with attitude problems for the officer. This list identified the students as being “thoughtless, disresept [sic], rude, selfish, uncaring.” Petitioner listed 42 of 119 students in the sixth grade. Fifteen students on the list had the added notation “extra special.” Petitioner did not have time to deliver the list to the officer. She gave the list to another teacher to deliver. The other teacher reviewed the list and immediately felt nauseated upon reading the list. The other teacher asked a teacher’s aide what she thought of the list. The teacher’s aide made a copy of the list. The teacher then took the list to the principal. The principal placed the list in his desk.

The copy of the list soon made it into the community. To put it mildly, parents were enraged. The school principal and the district superintendent were flooded with angry calls. The story made the local newspapers and television stations. Large groups of parents showed up at the superintendent’s office. Many parents requested that their children not be assigned to Petitioner’s classes. Based on these findings, the conclusion was reached that Petitioner could not be effective:

I thus find under these circumstances that Ms. McGilvray’s effectiveness as a teacher for the District for the term of her contract has been diminished and significantly impaired to the point where a learning environment would be totally disrupted were she to remain as a teacher through the term of her contract. Moreover, if she were retained, the controversy would surely continue and would be a disruptive force as to the ability of the district to not only properly educate students but also efficiently function from an administrative standpoint for the near future because of having to deal with arrangements to accommodate the large number of parents who no longer wanted their children taught by Ms. McGilvray.

Finding of Fact No. 52.

There is no question that the findings and evidence support a conclusion that good cause exists to terminate Petitioner’s contract. Petitioner contracted with the district to be a teacher. Petitioner can no longer be an effective teacher. Her continued presence on campus would hinder instead of help educate children. The Texas courts have defined “good cause”:

Good cause for discharging an employee is defined as the employee’s failure to perform the duties in the scope of employment that a person of ordinary prudence would have done under the same or similar circumstances. An employee’s act constitutes good cause for discharge if it is inconsistent with the continued existence of the employer-employee relationship.”

Lee-Wright, Inc. v. Hall, 840 S.W.2d 572, 580 (Tex. App.--Houston [1st Dist.] 1992, no writ). Good cause is a high standard. An employee must not only fail to perform as an ordinary employee would, but the failure must be of a serious nature. Petitioner has failed to perform as an ordinary employee would and this failing is of a serious nature.

Petitioner contends that since she has taught for a number of years, has a good teaching record, did not intend to harm the children, and did not intend for the list to become public, termination is too serious a punishment. Having a good and long record does not shield one from termination. While Petitioner did not intend to harm the children, making the list was a major error in judgment. The average school employee can be expected not to create such a list, and even if such a list was made, not to pass the list on to others. While Petitioner did not intend for the list to be made public, Petitioner should have realized the potential. In fact, if any of the parents of the children on the list had requested to see all disciplinary records concerning their children, they would get to see the portions of the list that referred to their children.

The facts in the present case differ from the facts in the two other Commissioner’s decisions that involved the loss of a contract for reduced effectiveness. Humphrey v. Westwood Independent School District, Docket No. 476-R2-795 (Comm’r Educ. 1996); and Lee v. Alief Independent School District, Docket No. 152-R1-796 (Comm’r Educ. 1996). The actions of the teachers in all three cases were quite distinct. However, in all three cases the teachers’ actions led to a situation where the teacher could no longer effectively teach in the same district. The question to be asked is not how immoral a teacher’s actions are, but whether or not an individual can be an effective teacher in the district. A teacher who cannot be an effective teacher has breached his contract. Respondent has good cause to terminate Petitioner’s contract.

Family Education Rights and Privacy Act

Petitioner contends that she did not violate FERPA and that even if a violation occurred, it does not support the termination of her contract. FERPA prohibits the distribution of personally identifiable information in education records concerning students to school officials with a legitimate educational interest unless parents approve of the disclosure. The list in question is an educational record that contains personally identifiable information. Petitioner contends that the juvenile probation officer who was coming to the school was a school official. This peace officer was not employed by the district. The mere fact that he came to a campus to make a presentation does not make him a school official. Additionally, he had no legitimate educational interest in the list. Petitioner violated FERPA. The privacy rights of parents in their children’s educational records are significant. A teacher who violates these rights has significantly failed in his responsibilities. Respondent has good cause to terminate Petitioner’s contract for violating FERPA.

Conclusion

While Respondent’s board of trustees did not properly handle the review of the certified hearing examiner’s recommendation, these errors did not lead to an erroneous decision. Their actions, while not condoned, were not sufficient to overturn their order. Petitioner’s actions with regard to the list of students constitute good cause for the termination of Petitioner’s contract. Petitioner should never have made the list or given it to anyone else. The justifiable community reaction from the list being made public destroyed Petitioner’s effectiveness as a teacher employed by Respondent.

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 Commissioner of Education has jurisdiction of this appeal pursuant to Texas Education Code §21.301.

2. A board of trustees that receives a certified hearing examiner’s recommendation is required to consider the record of the proceedings before the certified hearing examiner. This is a procedural requirement. Texas Education Code §21.258 (a).

4. The “record of the hearing examiner” under Texas Education Code §21.258 (a) is the transcript and exhibits from the hearing on the merits, along with all correspondence, and interlocutory orders issued by the hearing examiner.

5. The Commissioner may not reverse the decision of a board of trustees for a procedural error unless the error was likely to have led to an erroneous decision. Texas Education Code §21.303 (c).

6. Respondents failure to consider the record of the proceedings before the certified hearing examiner was not likely to have led to an erroneous decision.

7. Respondent’s board of trustees improperly held a board meeting to receive community input concerning the incident for which Petitioner’s contract was proposed for nonrenewal. Respondent’s board of trustees deliberated in closed session concerning the input. These actions call into question the board’s impartiality.

8. When Respondent’s board of trustees was considering the certified hearing examiner’s recommendation, it was exclusively making legal determinations. The facts had previously been determined by the certified hearing examiner whose impartiality has not been questioned. While Respondent’s board of trustees may have been biased, this bias was not likely to have led to an erroneous decision.

9. Good cause for discharging an employee is defined as the employee’s failure to perform the duties in the scope of employment that a person of ordinary prudence would have done under the same or similar circumstances. An employee’s act constitutes good cause for discharge if it is inconsistent with the continued existence of the employer-employee relationship.

10. Respondent had good cause to terminate Petitioner’s contract for her actions concerning the list of students.

11. Parents have a significant right in the privacy of their children’s educational records.

12. Respondent had good cause to terminate Petitioner’s contract for violating FERPA.

13. Respondent’s decision to terminate Petitioner’s contract is affirmed.

14. Petitioner’s appeal is denied.

O R D E R

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, DENIED.

SIGNED AND ISSUED THIS ___ DAY OF ____________________, 1997.

__________________________________

MIKE MOSES

COMMISSIONER OF EDUCATION

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[1] Petitioner filed a Supplemental Petition for Review to allege that board members predetermined the issue. Respondent objected to the filing of the Supplemental Petition for Review. While the filing of the Supplemental Petition for Review was not proper, the allegation in question was implicit in the Petition for Review. See Maxey v. Midland Independent School District, Docket No. 181-R1-597 (Comm’r Educ. 1997).

[2] This Latin saying means the inclusion of one is the exclusion of the other.

[3] A failure to consider the record can have practical consequences. Considering the record may lead to uncovering an error that can be quickly corrected. If undetected, an error can cost the district, the teacher, the Commissioner, and the courts of this state considerable amounts of money and time. Further, if a board changes a finding of fact without reviewing the record, the Commissioner must strike the changed finding of fact. The Commissioner cannot affirm a changed finding of fact using the substantial evidence standard when the changed finding of fact is a random decision.

[4] Petitioner also wished to voir dire board members concerning bias. Petitioner points out that in a footnote to Jones v. Maud Independent School District, Docket No. 366-R1-792 (Comm’r Educ. 1995) this procedure was suggested. While voir dire of board members concerning issues of bias is appropriate in certain circumstances, the party alleging bias is required to make a strong preliminary showing before questioning a board member. Board members considering a recommendation are administrative officials acting in a quasi-judicial capacity. The Supreme Court of the United States has found that some reluctance to allow a judge to be questioned applies also to administrative decision makers:

The Secretary should never have been subjected to this examination. The proceeding before the Secretary ‘has a quality resembling that of a judicial proceeding. Morgan v. United States, 293 U.S. 468, 480, 56 S.Ct. 906, 911, 80 L.Ed. 1288. Such an examination of a judge would be destructive of judicial responsibility. We have explicitly held in this very litigation that “it was not the function of the court to probe the mental processes of the Secretary.” 304 U.S. 1, 18, 58 S.Ct. 773, 776, 82 L.Ed. 1129. Just as a judge cannot be subjected to such a scrutiny, compare Fayerweather v. Ritch, 195 U.S. 276, 306, 307, 25 S.Ct. 58, 67, 49 L.Ed. 193, so the integrity of the administrative process must be equally respected.

United States et al. v. Morgan et al., 313 U.S. 409, 422, 61 S.Ct. 999, 1004-1005 (1941). A strong showing of bad faith must be made before an administrative decision maker may be subjected to questions as to bias. Citizens to Preserve Overton Park, Inc. v. Volpe, 410 U.S. 402, 421, 91 S.Ct. 814, 825 (1971). Only after specific allegations are made and clear evidence supporting those allegations is introduced can a board member be subjected to questioning.

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