DOCKET NO. 005-LH-905

WILMER-HUTCHINS INDEPENDENT § BEFORE

SCHOOL DISTRICT, Petitioner §

§ SUSAN Y. CHIN

V. §

§ CERTIFIED

§ INDEPENDENT

CELESTE MADRIGAL, Respondent § HEARING EXAMINER

HEARING EXAMINER'S RECOMMENDATION

In accordance with Subchapter F of Chapter 21 of the Texas Education Code, Susan Y. Chin, as Certified Hearing Examiner ("Hearing Examiner") appointed by the Texas Commissioner of Education (“Commissioner”) makes these findings of fact, conclusions of law, and recommendation as follows:

I.

SUMMARY OF THE CASE

Petitioner Wilmer-Hutchins Independent School District ("WHISD") seeks to terminate the professional term contract of Respondent Celeste Madrigal ("Ms. Madrigal" or "Respondent") as part of a reduction in force (“RIF”). Ms. Madrigal is currently director/supervisor of state and federal programs at WHISD.

The parties agree that WHISD is facing financial exigency which requires a RIF. The dispute between the parties is limited to (a) whether WHISD is properly implementing its adopted RIF policy and (b) whether the Commissioner had the authority on May 12, 2005 to appoint a board of managers (“WHISD Board of Managers”) to assume the duties and responsibilities of the WHISD Board of Trustees.

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II.

FINDINGS OF FACT & DISCUSSION

After due consideration of the evidence and matters officially noticed, the Hearing Examiner makes the following Findings of Fact with citations to evidence which are not exhaustive but are intended to indicate some of the basis for the particular finding of fact:

(A) PROCEDURAL BACKGROUND

(1) The parties stipulate that by letter dated July 13, 2005 and received by Ms. Madrigal or her attorney on an unspecified later date, Albert C. Black, Jr., President, WHISD Board of Managers, notified Ms. Madrigal of the proposed termination of her employment at WHISD as part of a RIF. (Petitioner’s Exhibit 1A)

(2) The parties stipulate that Ms. Madrigal’s request for a hearing was timely received by the Texas Education Agency on September 1, 2005.

(3) On September 9, 2005, the Texas Education Agency appointed Susan Y. Chin to serve as Hearing Examiner in this appeal.

(4) The closed hearing on the merits was held on September 28, 2005. Petitioner WHISD was represented by its counsel Kevin T. O’Hanlon of the law firm of O’Hanlon & Associates. Respondent Celeste Madrigal appeared in person and was represented by her counsels Daniel Ortiz and Shane Goetz of the law firm of Ortiz & Associates. The record was kept open until October 23, 2005 to allow the parties to file post hearing briefs.

(B) FACTUAL BACKGROUND

Regarding Ms. Madrigal

(5) Ms. Madrigal has a term employment contract as an administrator with WHISD.

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(6) Ms. Madrigal is certified for life as (a) superintendent (grades pre-kindergarten - 12), (b) mid-management administrator (grades pre-kindergarten - 12), (c) a secondary business composite teacher (grades 6-12), and (d) vocational office education teacher (grades 6 - 12). (Madrigal’s Exhibit 1)

(7) Ms. Madrigal has been employed by WHISD since 1967. (Hearing Transcript p. 31 line 20)

(8) Ms. Madrigal was a WHISD teacher from 1967 through 1973. Beginning in 1974, Ms. Madrigal has been a WHISD administrator. Ms. Madrigal has served in the roles of assistant principal, interim principal, dean of instruction, special education director, and director/supervisor of state and federal programs. (Hearing Transcript p. 31-35; Madrigal Exhibit 2)

(9) Ms. Madrigal received an “exceeds expectations” performance evaluation on February 11, 2005. (Madrigal Exhibit 6) Ms. Madrigal also received a “proficient” to “exemplary” performance evaluation on March 26, 2001. (Madrigal’s Exhibit 4) No other credible written performance evaluation was available for consideration. The Hearing Examiner finds the performance evaluation instrument that was admitted into evidence as Madrigal’s Exhibit 5 to be not credible because the instrument does not contain (a) the name of person evaluated, (b) the name of the evaluator, or (c) date of evaluation.

(10) Based on the written performance evaluations available and Ms. Madrigal’s testimony, the Hearing Examiner finds that Ms. Madrigal has been a satisfactory or better employee. (Hearing Transcript p. 47)

Regarding WHISD

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(11) WHISD has had a long history of problems. In 1982, the Commissioner assigned a monitor to WHISD. From1996 to 1998, the Commissioner assigned a management team to oversee WHISD. From December 2001 to December 2002, the Commissioner assigned a monitor to WHISD. Serious financial problems surfaced at WHISD in August 2004. WHISD declared financial exigency in October 2004. (Petitioner’s Exhibit 28, Deposition of Shirley Neeley - Exhibit 3)

(12) Allegations by citizens of testing irregularities led the Texas Education Agency (“TEA”) to investigate WHISD.

(13) On November 12, 2004, the Commissioner appointed a management team of two persons (“WHISD Management Team”) to oversee WHISD’s operations. (Petitioner’s Exhibit 27) On February 22, 2005, the WHISD Management Team issued a “Ninety-Day Report” to report on the status of WHISD. (Petitioner’s Exhibit 28, Deposition of Shirley Neeley, Exhibit 3)

(14) Throughout this period, there were well publicized conflicts among the members of the Board of Trustees and between Board of Trustee members and the WHISD Management Team. Contrary to instructions from the WHISD Management Team, the WHISD Board of Trustees appointed Ms. Annie T. Lee to serve as interim superintendent. The Management Team appointed Mr. Damm to serve as superintendent.

(15) Based on a finding of significant testing irregularity (cheating) within WHISD, the Commissioner notified the WHISD Board of Trustees that she was lowering WHISD’s accountability rating from “academically acceptable” to “academically unacceptable” on or about March 21, 2005. She also provided to the WHISD Board of Trustees a copy of the preliminary report of the investigation into testing irregularities. (Petitioner’s Exhibit 27)

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(16) In that same March 21, 2005 letter, the Commissioner informed the WHISD Board of Trustees and the superintendent of her intent to appoint a board of managers and a new superintendent as soon as such action is approved by the U.S. Department of Justice.

(17) By letter dated March 24, 2005 and addressed to the WHISD Board of Trustees and superintendent, the Commissioner elaborated on her reasons for lowering the WHISD accountability ratings. (Petitioner’s Exhibit 29, Hearing Transcript in Consolidated Case, Respondent’s exhibit 1)

(18) On March 30, 2005, the WHISD Board of Trustees President and Ms. Lee sent to the TEA a letter requesting a review of (a) the investigative report, (b) the lowered accountability ratings, and (c) the appointment of a board of managers and superintendent. They also challenged the Commissioner’s authority to appoint a board of managers at the same time she lowers the accountability rating to “academically unacceptable.” (Petitioner’s Exhibit 29, hearing transcript in consolidated case, Respondent’s exhibit 2)

(19) On May 12, 2005, the Commissioner responded to the WHISD Board of Trustees with further elaboration of the basis of her decision. She also provided them with a copy of the final investigation report. She also named the persons to serve on the WHISD Board of Managers and the new superintendent. (Petitioner’s Exhibit 23)

(20) The WHISD Board of Managers assumed the powers of the Board of Trustees on or about May 17, 2005. (Petitioner’s Exhibit 7) On or about June 1, 2005, Mr. Eugene Young assumed the position of superintendent. (Petitioner’s Exhibit 29)

(21) On June 27, 2005, the WHISD Board of Managers voted to terminate the employment of all campus based personnel.

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(22) On July 12, 2005, the WHISD Board of Managers voted to terminate the employment of all central office administrative contract employees except for the superintendent and the executive director of human resources. In addition to these two contract positions, WHISD is keeping ten employment-at-will positions. The list of positions and employees is presented as Petiioner’s Exhibit 12.

WHISD’S Adopted RIF Policy

(23) On or about March 2, 1998, WHISD had adopted or issued an updated DFF (Local)-A to set forth procedures for the termination of contracts in the event of a RIF (“WHISD RIF Policy”). The WHISD RIF Procedures pertinent to this proceeding states:

When a reduction in force is to be implemented, the Superintendent may assist the Board by making recommendations to the Board regarding the employment areas to be affected. ...

Employment areas include, but are not limited to:

(1) Elementary grades, ...

(2) Secondary grades, ...

(3) Special programs, ...

(4) Counseling programs.

(5) Library programs.

(6) Nursing and other health services program.

(7) An educational support program, ...

(8) Other District wide programs.

(9) An individual campus.

(10) Any administrative position(s), unit, or department.

(11) Other contractual position(s)

Using the following criteria, the Superintendent shall recommend to the Board employees within the affected employment area(s) for discharge or non-renewal because of a reduction in force. These criteria are listed in order of importance; the Superintendent shall apply them sequentially to the extent necessary to identify the employees who least satisfy the criteria and therefore are subject to the reduction in force, i.e., if all necessary reductions can be accomplished by applying the certification criterion, it is not necessary to apply the performance criterion, etc.

1. Certification: Appropriate certification and/or endorsement for current or projected assignment.

  1. Performance: Effectiveness as reflected by appraisal records and other written evaluative information.

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If the Superintendent in his or her discretion decides that the documented performance differences between two or more reduction in force prospects are too insubstantial to rely upon, he or she may proceed to apply criterion 3 and, thereafter and to the extent needed, criterion 4.

  1. Seniority: Length of service in the District.
  1. Professional Background: Professional education and work experience related to the current or projected assignment. (Petitioner’s Exhibit 2)

Once the Superintendent has identified the appropriate employees in the affected area(s), those employees shall be considered for other available positions for which they are qualified up to the date of a hearing requested in accordance with the provisions below.

(“Criteria for Decision”) (Petitioner’s Exhibit 9)

(C) IS MS. MADRIGAL’S PROPOSED TERMINATION PROPER PURSUANT TO WHISD’S RIF POLICY?

(24) In his recommendation to the WHISD Board of Managers, Superintendent Young treated each central office administrative position as a separate area to be considered for the RIF. He did not consider all the central office administrative employees as a group and accordingly he did not apply the Criteria for Decision to them. (Petitioner’s Exhibit 29)

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(25) Ms. Madrigal argues that the central administrative staff constitute one single employment area. She argues that the Criteria for Decision should have been applied to the central administrative staff as a group. She argues that if the Criteria for Decision is applied, she would get the remaining administrative position (executive director of human resources) instead of Dr. Lew Blackburn. Her argument is that (a) she is certified for the superintendent’s position as well as mid management administrator, (b) she has good performance record, (c) her service in WHISD is much longer than that of Dr. Blackburn, and (d) she has broad mid management experience including some form of human resource experience.

(26) In 2000, when Ms. Annie Lee was WHISD Interim Superintendent, a RIF of the central administrative staff took place. In applying the RIF policy that it had adopted in 1998, the WHISD Board of Trustees treated each central administrative department as a separate employment area for RIF purposes. The different administrative departments were not grouped together for the application of the Criteria for Decision as Ms. Madrigal proposes. The employees of an employment area designated for a RIF were not allowed to supplant employees in other employment areas. (Hearing Transcript p. 107-109)

(27) To apply the Criteria for Decision across departmental lines as Ms. Madrigal proposes would create additional chaos during very difficult times. The end result could be that the employee with the least recent relevant experience stays to learn a new assignment while the employee with the most recent relevant experience must leave WHISD.

(28) The Hearing Examiner finds what Ms. Madrigal proposes to be contrary to the RIF policy adopted by the WHISD Board of Trustees in 1998 and as implemented by WHISD in 2000. The Hearing Examiner finds WHISD’s proposed termination of Ms. Madrigal’s employment is consistent with and pursuant to WHISD’s adopted RIF policy.

(D) DID THE COMMISSIONER HAVE AUTHORITY TO APPOINT A BOARD OF MANAGERS IN MAY 2005?

(29) On May 12, 2005, the Commissioner appointed the WHISD Board of Managers pursuant to Section 39.131(a)(9) of the Texas Education Code. The parties dispute whether all the conditions required for the Commissioner to make that appointment were met.

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Statutory Construction

(30) The Texas Code Construction Act provides the following guidance on how to interpret Section 39.131(a)(9):

(a) Words and phrases shall be read in context and construed according to the rules of grammar and common usage. (Texas Government Code 311.011(a));

(b) In enacting a statute, it is presumed that:

(i) the entire statute is intended to be effective;

(ii) a just and reasonable result is intended; and

(iii) public interest is favored over any private interest. (Texas Government Code 311.021(2)-(5));

(c) In construing a statute, whether or not the statute is considered ambiguous on its face, a court may consider among other matters the:

(i) object sought to be attained;

(ii) legislative history;

(iii) consequences of a particular construction; and

(iv) administrative construction of the statute. (Texas Government Code 311.023(1), (3), (5), and (6))

Chapter 39 of the Texas Education Code

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(31) Chapter 39 of the Texas Education Code (“Chapter 39") addresses public school system accountability. It sets forth methods to measure school district performance and methods to hold school districts accountable for their performance. The objective of Chapter 39 is to improve performance of school districts and to authorize the Commissioner to take action necessary to improve performance when school districts cannot do it on their own.