TEA DOCKET #021-LH-1107
SAN FELIPE DEL RIO CONSOLIDATED§BEFORE ART DAVIS
INDEPENDENT SCHOOL DISTRICT,§
PETITIONER,§
§
VS.§CERTIFIED HEARING EXAMINER
§
ROLAND MENZEL,§
RESPONDENT§TEXAS EDUCATION AGENCY
RECOMMENDATION OF HEARING EXAMINER
I.STATEMENT OF THE CASE
DATE OF HEARING:JANUARY 16-17, 2008
HEARING LOCATION:SAN FELIPE DEL RIO C.I.S.D. ADMINISTRATION BUILDING, DEL RIO, TX
APPEARANCES:FELDMAN & ROGERS, L.L.P., ATTORNEY BOB SCHULMAN & ATTORNEY RICK LOPEZ
517 SOLEDAD STREET
SAN ANTONIO, TX 78205-4114
(210)406-4100
FACSIMILE (210)406-4114
ATTORNEY FOR PETITIONER, SAN FELIPE DEL RIO C.I.S.D.
DEATS, DURST, OWEN & LEVY, P.L.L.C.
ATTORNEY GREG JOHNSON
1204 SAN ANTONIO, SUITE 203
AUSTIN, TX 78701
(512)474-6200
FACSIMILE (512)474-7896
ATTORNEYS FOR RESPONDENT, ROLAND MENZEL
WAIVER:
The Parties by Agreement waived the right to a case Recommendation by the date prescribed by Subsection (A), Section 21.257 of the Texas Education Code extending the date to February 8, 2008.
BASIS OF THE HEARING:
Respondent, Mr. Roland Menzel, appeals the decision of Petitioner San Felipe Del Rio C.I.S.D. to recommend termination of his Continuing Contract under Section 21.156 of the Texas Education Code.
Petitioner San Felipe C.I.S.D. contends it has “good cause” to terminate Respondent’s employment pursuant to Section 21.156 of the Texas Education Code; “good cause being failure to meet the accepted standards of conduct for the profession as generally recognized and applied in similarly situated school districts in Texas.”
II. FINDINGS OF FACTS
After due consideration of the Pleadings and matters officially noticed in my official capacity as Hearing Examiner, and after due consideration of the testimony of the witnesses, I make the following Findings of Fact:
1.Respondent, Roland Menzel, is employed by the San Felipe Del Rio C.I.S.D. on a Continuing Contract and assigned as a high school math teacher. (Pet. Exhibit #19)
2.On October 2, 2007, Petitioner’s Board of Trustees voted to propose the termination of Respondent’s contract.
(Pet. Exhibit # 36)
3.Respondent was notified of the Board decision by letter of October 8, 2007. (Pet. Exhibit #36)
4.Respondent timely requested that a Certified Hearing Examiner be appointed challenging that “good cause” existed for his proposed termination.
5.Petitioner’s High School Principal, Mr. Jorge Garza, did walk-through and class observation on October 25, 2006. (Pet. Exhibit #22)
6.Through classroom observation, Principal Garza witnessed students who were frustrated with Respondent’s teaching and did not understand what they were supposed to do. (Tr. Vol. 2, 360; 365)
7.Respondent had not helped students master the material. (Pet. Exhibit #22)
8.Principal Garza provided feedback to Respondent to assist him based on the class observation and directed him to come for a conference. (Pet. Exhibit #22)
9.On December 15, 2006, Principal Garza and Assistant Principal Jose F. Perez met with Respondent to discuss various concerns including: failure rate of students, student complaints, and parent-requested student transfers out of Respondent’s classes. (Pet. Exhibit #12)
10.On February 15, 2007 a new student was sent by counselors to Respondent’s class. Respondent refused to accept the new student and sent the student back to counseling. (Pet. Exhibit #8)
11.Respondent had 21 students in this class while his colleagues had class counts ranging from 28 - 30 students during the same period. (Pet. Exhibit #8)
12.Assistant Principal Clarkson walked the new student back to Respondent’s class and admitted the new student to Respondent’s class.
13.Respondent argued with Principal Clarkson in front of the class regarding accepting the new student in his class and within the hearing of the new student. (Pet. Exhibit #8)
14.Respondent’s conduct regarding the assignment to his class of this new student constituted unprofessional conduct.
15.Respondent acknowledges that administrative decisions should not be challenged in the hall or classroom.
(Pet. Exhibit #9)
16.On March 6, 2007 Principal Garza issued a Performance Plan to Respondent because Principal Garza was concerned about the high failure rate; student dropouts from Respondent’s classes; incidences of supervisory insubordination; and demeaning statements to students. (Pet. Exhibit #5; Tr. Vol. 2, 353-356)
17.Principal Garza’s annual evaluation of Respondent in May, 2006 was positive as efforts were being made to be positive and continue working with Respondent to correct problems with his teaching. (Tr. Vol. 3, 402-410)
18.Principal Garza had ongoing and constant conversation with Respondent in an effort to make sure that Respondent would succeed with his students. (Tr. Vol. 2, 340)
19.Respondent did not timely respond as directed to the Performance Plan. (Pet. Exhibit #6)
20.Respondent refused to comply with the directives of the Performance Plan.
(Pet. Exhibit #6; Pet. Exhibit #7; Tr. Vol. 2, 390)
21.Superintendent Roberto Fernandez met with Respondent, Principal Garza, Mr. Don Welch of the TFT, and Ms. Katie Gonzales of the AFT on April 26, 2007 to discuss the Performance Plan. (Pet. Exhibit #7; Tr. Vol. 3, 496)
22.Principal Garza and Superintendent Fernandez attempted to work with Respondent urging his compliance and completion of the Performance Plan. (Tr. Vol. 3, 495-505)
23.Two additional students had dropped Respondent’s class since the Plan had been implemented. Respondent was teaching 70 students while other teachers were teaching and average of 120 students. (Pet. Exhibit #7)
24.Respondent through his representative to Superintendent Fernandez refused to comply with the Plan, modified or not on April 27, 2007. (Pet. Exhibit #7; Tr. Vol. 3, 505)
25.Respondent did not complete the Performance Plan. (Tr. Vol. 1, 44; Tr. Vol. 3, 505)
26.Respondent has a dropout problem with his students and consistently teaches substantially fewer students than his colleagues teaching the same courses. (Pet. Exhibit #21; Pet. Exhibit 23; Tr. Vol. 2, 353; 371-371)
27.Respondent agrees he has a high attrition rate among his students. (Tr. Vol. 1, 64)
28.The failure rate in Respondent’s classes is not significantly different than that of his colleagues. (Pet. Exhibit #2)
29.Respondent has a problem with classroom management. (Tr. Vol. 2, 319; Tr. Vol. 2, 353-354, 364)
30.Respondent refused a directive from the Superintendent and Principal Garza to complete the Performance Plan.
(Tr. Vol.1, 44-46; Tr. Vol. 3, 485)
31.Respondent’s direct refusal to comply with the Performance Plan of March, 2007 is insubordination.
(Tr. Vol. 3, 495)
32.The employment relationship between Respondent and Petitioner cannot be remedied. (Tr. Vol. 3, 515)
33.GOOD CAUSE does exist for the termination of the Continuing Contract of employment between Petitioner San Felipe Del Rio C.I.S.D. and Respondent Roland Menzel.
34.Respondent did not grieve his concerns regarding the Performance Plan of March, 2006. (Tr. Vol. 2, 385)
III.DISCUSSION
A review of the record shows that Respondent has had difficulty with classroom management, teaching strategies, student-teacher relationships, teacher-administrative relationships, and student dropout rates in his classes for the last several years in question. Principal Garza gave Respondent support and encouragement making extra-ordinary efforts and showing great patience as a Performance Plan was implemented to assist Respondent. The Superintendent was supportive of the Plan and offered to allow Respondent additional time to comply. Respondent refused to comply. Respondent failed to meet the accepted standards of conduct as generally recognized and applied in similarly situated school districts in this state.
IV.CONCLUSIONS OF LAW:
After due consideration of the record, matters officially noticed, and the foregoing Findings of Fact, in my capacity as Hearing Examiner, I make the following conclusions of law:
1.The Hearing Examiner has jurisdiction of this subject matter pursuant to Chapter 21, Subchapter F, Section 21.251 of the Texas Education Code.
2.The appeal by Respondent, Mr. Roland Menzel, was conducted by a preponderance of the evidence.
3.The Respondent, Mr. Roland Menzel, is a “teacher” as defined in Subchapter C, Section 21.101 of the Texas Education Code.
4.The Respondent, Mr. Roland Menzel, is employed as a teacher by the San Felipe Del Rio C.I.S.D. pursuant to a Continuing Contract as defined in Subchapter D, Section 21.152 of the Texas Education. Code.
5.Respondent failed to exhaust administrative remedies with regard to his March 6, 2007 Performance Plan; procedural issues regarding this Plan are administratively final and cannot be challenged in this termination proceeding.
6.Respondent failed and refused to comply with the requirements of his March 6, 2007 Performance Plan after notice and opportunity to remediate.
7.Respondent’s refusal to his Principal and Superintendent to comply with the Performance Plan constitutes insubordination and is good cause for termination. Markay v. Dallas ISD, Docket No. 013-R2-1105 (2006).
8.Respondent’s failure to remediate his performance deficiencies after notice and opportunity to correct those deficiencies constitutes good cause for termination.
9.Respondent, Mr. Roland Menzel, may be discharged at any time for good cause, pursuant to Section 21.154)4) and 21.156 (a) of the Texas Education Code.
10.“Good cause” is defined as “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.” Section 21.156 (a), Texas Education Code.
11.“Good cause” does exist under Section 21.154 (4) and 21.156 (a) of the Texas Education Code for the termination of Respondent’s Continuing Contract of employment with Petitioner.
V.RECOMMENDATION
After due consideration of the record, matters officially noticed, and the foregoing Findings of Fact and conclusions of Law, in my capacity as Hearing Examiner, I hereby recommend that the San Felipe Del Rio C.I.S.D., Petitioner, adopt the foregoing Findings of Fact, Conclusions of Law and terminate the Continuing Contract of Mr. Roland Menzel, Respondent, for good cause.
Respondent’s appeal of the proposed termination of this Continuing Contract with Petitioner, San Felipe Del Rio C.I.S.D.. is and should be DENIED.
Signed and Issued this 4th day of February, 2008.
Respectfully submitted,
Art Davis
Certified Hearing Examiner
Texas Education Agency