Before Independent Hearing Examiner

BEFORE INDEPENDENT HEARING EXAMINER

RECOMMENDATION OF THE CERTIFIED HEARING EXAMINER

AliefIndependent School District, (AISD), Petitioner, has proposed the termination of Dr. Michael E. Whitt, Respondent, under Section 2(d) of his continuing contract and the Texas Education Code, Section 21.156.

Petitioner was represented by J. Erik Nichols, of Rogers, Morris & Grover, L.L.P.

Respondent was represented by Nancy E. Lusk, of Nancy E. Lusk, P.C.

Ruling on Petitioners Trial Brief Regarding Deemed Admissions

After due consideration of the facts and notice of the applicability of the Texas Rules of Civil Procedure the Hearing Examiner finds the Petitioner’s request to have the Respondent’s responses to admissions deemed admitted is DENIED. In a hearing under Chapter 21, subchapter F, specifically provides the Texas Rules of Evidence apply, however, a hearing examiner may allow either party to take one or more depositions or to use other means of discovery before the hearing. The fact that Texas Rules of Civil Procedure is not expressly mentioned regarding discovery the Examiner has broad discretion to allow discovery. Based, on the short deadlines in these cases, it is impossible to apply the rules as in a case in district court. The ultimate factor in this decision was the fact there was no harm to the Petitioner by reversal. Therefore, all rulings made in the hearing in favor of the admission are now reversed. The following findings of fact and conclusions of law will be based solely on the evidence presented in this case.

Findings of Fact

After due consideration of the evidence and matters officially noticed, the following Findings of Fact have been proven by a preponderance of the evidence:

1. Respondent is an employeeof AISD under a continuing contract since August 7, 1997. (P Ex. 9).

1. The reasons proposed by the Petitioner for the termination of the Respondent’s contract was:

(1) Job abandonment, without permission to do so;

(2) Failure to fulfill duties or responsibilities;

(3) Incompetency or inefficiency in the performance of duties/responsibilities;

(4) Insubordination or failure to comply with official directives;

(5) Failure to meet AISD’s standards of professional conduct. (P Ex. 20).

1. Respondent received notice of the days he was scheduled to work for the 2010-2011 school year. (TR 211, P Ex. 16) Those dates were August 11, 2010 through June 8, 2011.

1. Respondent’s continuing contract provides that absence from assigned duties without proper authority and approval may constitute good cause for discharge. (P Ex. 9)

1. Respondent was performance reviews were “clearly outstanding.” (P Ex. 10)

1. Respondent had not been disciplined or received any counseling memo since April 28, 2004. (P Ex. 36)

1. Respondent was a special ed. counselor and not an LSSP. (TR 145)

1. Petitioner held a meeting on April 1, 2011 regarding the end of the year procedures which spelled out all staff was expected to exchange their folders between 8:00 and 10:00a.m. on June 8, 2011.(TR 129-130, P Ex. 23)

1. Respondent did not appear at school on June 1st, 2nd, and left town on June 2nd. (TR 222-223) Respondent did not request approval or authorization to leave and did not present the Petitioner with any doctor’s excuses for the workdays missed from June 2nd to June 8th 2011

1. Respondent historically left early at the end of the year if there was no work for him to do. (TR 223-224) There were no students that he needed to counsel. Dr. Whitt hadalready started transitioning the studentsin preparation for the summer months in May of the school year. Respondent mistakenly believe that because he was not an LSSP at the time when he turned his folder to the secretary he had completed all of his job responsibilities.

1. Respondent did not sign in and out of each school he attended based on the special education department procedures. This failure did not reach any level of insubordination or good cause.

1. Respondent did not have good cause for his nonattendance without approval during the workdays of June 2-8 2011 per the notice of personnel action.Petitioner had not received a request for a leave of absence or sick days from the Respondent for the June 2-8 2011 dates. (TR 138-139)

1. Petitioner gave the Respondent an opportunity to explain his absences prior to recommending the termination of his contract upon his return. (TR 61-62)

1. Respondent’s absence from work is considered job abandonment. However, the amount of harm to the Petitioner was minimal as no student was harmed and the information from the Respondent s folders needed to complete required reports was readily available in the Respondent’s office. (TR 103, 195-195)

1. Petitioner paid Respondent his salary for June 1-8th the days he was absent. (Tr. 53)

1. On July 19, 2011, Petitioner’s Board considered the recommendation of the Superintendent to propose the termination of the Respondent’s continuing contract for good cause. (P Ex. 19)

1. On July 22, 2011, a letter was sent to the Respondent giving notice the Board has accepted the Superintendent proposal to terminate the Respondent’s contract based on cause.

1. On July 28, 2011, Respondent timely requested a hearing pursuant to Chapter 21 of the Texas Education Code to challenge the proposed termination.

1. Applicable Policies are DFCA Continuing Contracts: Suspension/Termination, DCC (Legal and Local) Employment Practices: Continuing Contract.

1. Job abandonment was not defined in any of the AISD Policies.

1. Hearing was held on September 14, 2011.

Discussion

Issue 1.-Whether Good Cause Exists to Support

Petitioner’s Recommendation to Terminate Respondent’s Continuing Contract

1. The first issue in this case is whether there exists good cause to support Petitioner’s recommendation to terminate Respondent’s continuing contract. The Education Code states “a teacher employed under a continuing contract may be discharged at any time for good cause as determined by the board of trustees, good cause being the failure to meet the accepted standards of conduct for the profession as generally recognized and applied in similarly situated school districts in this state.” Sec. 21.156 A teacher facing termination for good cause does not have a right to remediation. Matthews v. Scott, 268 S.W.3d 162, 172 (Tex. App.—Corpus Christi 2008, no pet.)

1. In their case in chief, Petitioner presented Dr. Rose Benitez the Assistant Superintendent for Human Resources and Dr. Traci Whittenberg an appraisal coordinator in the Special Education Department

1. Dr. Benitez testified based on her experience in school districts that are similarly situated to AISD, the conduct of the Respondent in those districts would have been grounds for cause. Dr. Benitezorganized the formal meeting with the Respondent upon his return.Dr. Benitez testified the Respondent violated the Code of Ethics and Standard Practices for Texas Educators Standard 1.3 when he was paid for duties he did not perform. (Tr. 102: 4-8) However on cross-examination Dr. Benitez admitted Dr. Whitt had not violated any of the professional conduct rules by turning in false report. (TR 102-103) Dr. Benitez made the final decision to propose terminate his contract.

1. Dr. Whittenberg testified the absence of the Respondent caused concern for his welfare in the department. Dr. Whittenberg, as the supervisor of the Respondent, testified about the directives that were given to the Respondent regarding the signing in and out procedures at other schools for the special ed. Department. In addition, Dr. Whittenberg testified she was never contacted by the Respondent regarding his absences and about the end of the year process which was expressed to the entire department on “April Fool’s Day.” The end of the year process shown from the April 1st meeting exhibits was that all staff must exchange student folders on June 8, 2011. (P Ex. 23) On cross examination, Dr. Whittenberg admitted there was no harm done to her personally and once they opened up Dr. Whitt’s office they were able to get all of the documentation needed for her mandatory report.

1. In the Respondent’s case in chief, the Respondent testified. The Respondent did testify that he did not come to work on June 1st 2011 and left out of town on June 2nd. The Respondent further testified this had been his standard practice for many years and had been his practice prior to being supervised by Dr. Whittenberg. The Respondent testified the practice at the end of school started because he did not have any more work to do. It is worth noting, part the Respondent’s mistaken belief was premised on the fact that typically the end of the year protocols did not apply to him because he was not a LSSP.

1. Since the AISD Policy did not define “job abandonment” the examiner went to case law for a definition which was used by employers to describe a situation where an employee doesn’t show up for work and does not call.Dallas County v. Holmes, 62 S.W.3d 326 (Tex.App. —Dallas 2001), Horelica v. Fiserv Solutions, Inc., 123 S.W.3d 492 (Tex.App.—San Antonio 2003),Cooper v. City of Dallas, 229 S.W.3d 860 (Tex.App.—Dallas 2007) In looking at cases from the Commissioner, a number of contract abandonment cases appeared but only partly would apply to this case. The typical case involving contract abandonment was primarily the school district seeking a remedy to suspend a teacher certification. Therefore, the more salient good cause definition would be more appropriate in applying the facts of this case.

1. In determining the definition of good cause, the Commissioner has used the definition of good cause found in the case Lee-Wright Inc. v. Hall, 840 S.W.2d 572, 580 (Tex.App—Houston [1st Dist.] 1992, no writ):

Good cause for discharging an employee is defined as the employee’s failure to perform 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.

1. The credible weight of the testimony and exhibitsindicate that from June 2nd to June 8th 2011 workdays, Respondent while under contract was absent. The Petitioner paid the Respondent for those days and the Respondent did not request leave or called the non-worked days to the attention of the Petitioner after his return from out of town. A person of ordinary prudence calls their employer when absent, request vacation, leave or would show up to work and then allow the supervisor send them home because there is no work.

1. This is unfortunate given Dr. Whitt’s superb counseling career at AISD who had a good working relationship with his co-workers and supervisor. There is no question that Dr. Whitt was under a mistaken belief he was not doing anything wrong at the time and did not realize it until it was too late.

Therefore, there is good cause to terminate Respondent’s contract based on his unauthorized absenceduring the term of the contract. The evidence doesn’t support Dr. Whitt (2) Failed to fulfill his duties or responsibilities;

(3) was incompetency or inefficiency in the performance of duties/responsibilities; (4) was insubordination or failed to comply with official directives; (5) Failed to meet AISD’s standards of professional conduc.t

Conclusions of Law

After due consideration of the record, matters officially noticed, and the foregoing capacity, in my capacity as Certified Hearing Examiner, I make the following Conclusions of Law:

1. Jurisdiction to hear this cause is proper under Texas Education code Chapter 21, subchapter F.

1. Section 2(d) of Respondent’s continuing contract provides “Employee is entitled to continue Employee’s position or a position with the Alief Independent School District for future years, without the necessity of annual nomination or reappointment, untilEmployee: is discharged for good cause as defined by section 21.156 and in accordance with procedures provided in Chapter 21, Texas Education Code . (P Ex. 9)

1. TEC Section 21.156 provides “a teacher employed under a continuing contract may be discharged at any time for good cause as determined by the board of trustees, good cause being the failure to meet the accepted standards of conduct for the profession as generally recognized and applied in similarly situated school districts in this state.”

1. In determining the definition of good cause, the Commissioner has used the definition of good cause found in the case Lee-Wright Inc. v. Hall, 840 S.W.2d 572, 580 (Tex.App—Houston [1st Dist.] 1992, no writ):

Good cause for discharging an employee is defined as the employee’s failure to perform 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.

1. Petitioner has demonstrated it had good cause to terminate the Respondent’s continuing contract.

Recommendation

After due consideration of the record, matters officially noticed, and the foregoing Findings and Conclusions of Law, in my capacity s Certified Hearing Examiner, it is hereby determined that:

Petitioner has good cause to terminate Respondent’s term contract pursuant Section 2(d) of his continuing contract and the Texas Education Code, Section 21.156.

RECOMMENDED that the board of trustees of the Alief Independent School District adopt the foregoing Findings of Fact and Conclusions of Law and enter an order consistent therewith.

SIGNED AND ISSUED this___24_ day of _September__, 2011.

Allecia Lindsey Pottinger

INDEPENDENTHEARING EXAMINER