DOCKET NO. 021-LH-1104

______

) BEFORE THE HEARING OFFICER

WILMER HUTCHINS INDEPENDENT )

SCHOOL DISTRICT )

)

Petitioner, )

) PAUL FRANCIS MCNULTY

vs. )

)

ANNIE LEE, )

Respondent. )

______) THE STATE OF TEXAS

RECOMMENDED DECISION

APPEARANCES:

FOR PETITIONER WILMER HUTCHINS INDEPENDENT SCHOOL DISTRICT:

Kevin Thomas O’Hanlon, Esq.

O’HANLON & ASSOCIATES

FOR RESPONDENT ANNIE LEE

Mark W. Robinett, Esq.

BRIM, ARNETT, SOIFER, ROBINETTE, HANNER & CONNERS

BEFORE:

Paul Francis McNulty

Hearing Examiner

Texas Education Agency

I. PROCEDURAL HISTORY

This proceeding arises from the notice of termination of Ms. Annie Lee, the Executive Director of Administrative Services, for Wilmer Hutchins Independent School District. Notice of termination was given to Respondent on or about November 4, 2004. This matter was heard on January 5, 2005.

II. MATERIAL FACTS AT ISSUE

The primary facts at issue in this matter are: whether or not Respondent’s termination as an employee of the Wilmer Hutchins Independent School District was proper under the provisions of Wilmer Hutchins ISD DFF (Local).

III. ISSUES OF LAW

The issues of law before the Hearing Examiner are:

Whether it was arbitrary and capricious to apply Wilmer Hutchins ISD Policy DFF (Local) concerning Employment Areas to be affected by a reduction in force in such a manner as to treat a single position as an “employment area.”

Whether is was arbitrary and capricious and contrary to the best interest of the employer to eliminate a position and automatically discharge the individual in that position.

Whether is was arbitrary and capricious to dismiss Ms. Lee pursuant to a reduction in force because she was that individual employed as Executive Director of Administrative Services.

Whether or not the Superintendent properly used the criteria set forth in District Policy DFF (Local) in determining the appropriate “employment area” for the reduction in force.

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Whether or not the Board appropriately calculated Ms. Lee’s time in service when determining the appropriate “employment area” for the reduction in force.

IV. JOINT STIUPLATIONS OF FACT

The parties hereto have agreed to the following Joint Stipulations of Fact:

At all times material to this proceeding, the Wilmer Hutchins Independent School District (hereinafter “the District”) has been in a state of financial exigency that required a reduction in personnel.

The District began the 2004-05 school year with a negative fund balance in the amount of approximately $3.2 million dollars. The budget adopted in August 2004 by the Board of Trustees for the 2004-05 school year did not effectively address the budget shortfall.

As a result of these budget shortfalls, the District has had extreme difficulty in meeting its payroll obligations to its staff, and could not have done so without receiving funding advances and substantially reducing its expenditures. A reduction in supplies, materials, and operating expenses was insufficient to meet the financial exigency. Significant reductions in staffing were necessary to restore the District to financial stability

At the time of the reduction in force, Ms. Lee, as Executive Director of Administrative Services, occupied an administrative position within the Administrative Services Department.

The Administrative Services Department was an administrative department of the District.

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To address the budget shortfall, the Board determined, at a lawfully called meeting of the Board of Trustees of the Wilmer Hutchins Independent School District held on October 11, 2004, a financial exigency exited which required the discharge of one or more employees.

The Board’s declaration of a financial exigency on October 11, 2004 was justified under the terms of Tex. Educ. Code Section 21.211(a)(2), and was declared in full compliance with the provisions of District Policy DFF (Local).

At a lawfully called meeting of the Board of Trustees held on October 18, 2004, the Superintendent recommended to the Board that secondary assistant principals, primary and secondary teachers, campus administrative positions, Communications Liaison, Volunteer Coordinator, Maintenance/Auxiliary Services contractual employees and at will administrative employees, were employment areas to be affected by the reduction in force. The Superintendent’s recommendation to identify specific employment areas for reduction was based upon District Policy DFF (Local) which requires in relevant part:

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. In determining affected employment areas, the Board may combine or coordinate employment areas, as defined below (e.g., the Board may combine “elementary programs” and “compensatory education programs” to identify an employment area of “elementary compensatory education program.”)

EMPLOYMENT AREAS

Employment areas include, but are not limited to:

  1. Elementary grades, levels, subjects, departments or programs
  1. Secondary grades, levels, subjects, departments, or programs.
  1. Special programs, such as gifted and talented, bilingual/ESL programs, special education, compensatory education, and migrant education. Each special program is a separate employment area.

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  1. Counseling programs
  1. Library programs
  1. Nursing and other health services programs
  1. An educational support program, that does not provide direct instruction to students.
  1. Other District wide programs

9. An individual campus

  1. Any administrative position(s), unit, or department. Other contractual position(s).

At a lawfully called meeting of the Board of Trustees held on October 18, 2004, the Board determined secondary assistant principals, primary and secondary teachers, campus administrative positions, Communications Liaison, Volunteer Coordinator, Executive Director of Administrative Services, Maintenance/Auxiliary Services contractual employees, and at will administrative employees were employment areas to be affected by the reduction in force. Ms. Lee’s position was included on the list of positions identified. In addition, three (3) secondary assistant principal positions were identified for deletion.

The Superintendent’s recommendation and the Board’s determination of employment areas to be affected by the reduction in force due to a financial exigency on October 18, 2004 were in full compliance with the provisions of District Policy DFF (Local).

At a lawfully called meeting of the Board of Trustees on November 1, 2004, Interim Superintendent James Damm recommended to the Board and the Board agreed with that recommendation, that Ms. Annie Lee satisfied the criteria of Board Policy DFF (Local) as to employees who could be subject to the reduction in force.

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The District’s reduction in force criteria provide as follows:

Using the following criteria, the Superintendent shall recommend to the Board employees within the affected employment area(s) for discharge or nonrenewal 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. 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.

As a result of the Interim Superintendent’s recommendation and the Board’s action on that recommendation, Ms. Lee was sent a Notice of Proposed Termination on November 4, 2004.

In making his recommendations for applying the reduction in force criteria to the Executive Directive of Administrative Services position identified for elimination, Mr. Damm found as follows:

  1. That all three senior administrators employed by the District held appropriate certifications and/or endorsements for their current or projected assignments;

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  1. That the documented performance differences between two or more administrators who were reduction in force prospects were to insubstantial to rely upon;
  1. Differences in length of continuous service to the District existed and the least senior administrators were identified for reduction in force; and
  1. The differences in length of service became the criteria upon which the reductions in force recommendations were made as to the selection of individual employees.

Ms. Lee holds a Certified Administrator Contract with the District for the 2004-05 school year and was assigned to the position of Executive Director of Administrative Services.

Ms. Lee’s base salary for the 2004-05 school year was $82,100.

Ms. Lee was the only administrator holding the position of Executive Director of Administrative Services.

Ms. Lee’s position was eliminated, and there was no other open administrative position to which she could be transferred.

Dr. Lew Blackburn holds a Certified Administrator Contract with the District for the 2004-05 school year and is assigned to the position of Executive Director of Human Resources.

Dr. Blackburn’s base salary for the 2004-05 school year is $79,000.

Dr. Blackburn was the only administrator holding the position of Executive Director of Human Resources.

Dr. Blackburn’s position was not eliminated by the reduction in force.

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Ms. Bobbie E. Castille-Johnson holds a Certified Administrator Contract with the District for the 2004-05 school year and is assigned to the position of Executive Director of Curriculum and Instruction.

Ms. Castille-Johnson’s salary for the 2004-05 school year is $73,100.

Ms. Castille-Johnson was the only administrator holding the position of Executive Direct of Curriculum and Instruction.

Ms. Castille-Johnson’s position was not eliminated by the reduction in force.

In making the reduction in force recommendation for Ms. Lee, the Interim Superintendent did not consider her as being in the same pool as other senior administrators because Ms. Lee was employed in a different position in a different employment area at the time.

If Ms. Lee would have been considered on November 1, 2004 as being employed in the employment area of senior administrator, the Interim Superintendent would have found:

a. That Ms Lee held appropriate certifications and/or endorsements for a potential assignment as Executive Director of Administration, Executive Director of Curriculum and Instruction, or Executive Director of Human Resources.

  1. That there were no documented performance differences between Ms. Lee, Dr. Blackburn, or Ms. Castille-Johnson, the other District senior administrators that were substantial to rely upon;
  1. That Ms. Lee had been employed by the District for a period of 35 years ending in June 2004 and that at the time, Ms. Lee resigned her employment with the District in order to retire with the Texas Teacher Retirement System;
  1. That a break in service is required by the Texas Teacher Retirement System in order for an educator to become eligible to retire.
  1. That after retiring Ms. Lee has a break in her service with the District during which she was unemployed and during which she had no agreement that she would be rehired.

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  1. That as a result of her retirement and the consequent break in service, Ms. Lee had less that three months of continuous service with the District on November 1, 2004.
  1. Dr. Blackburn had been continuously employed by the District for approximately 2 years and three months on November 1, 2004;
  1. Ms. Castille-Johnson had been continuously employed by the District for approximately 12 years and three months on November 1, 2004.

Ms. Lee resigned from the District at the end of the 2003-04 school year and was rehired for the 2002-05 school year by action of the Board on August 9, 2004.

Since her break in service, Ms. Lee has less than one year’s service in the District.

If Ms. Lee would have been considered in the reduction in force as a senior administrator instead of as the Executive Director of Administrative Services, Ms. Lee would still have been identified for termination because she had the least service time with the District because of her retirement and rehiring in the summer of 2004.

The determination that Ms. Lee had the least service time in the District was made because Ms. Lee retired from her position in the District in the summer of 2004 before, Ms. Lee was rehired by the District.

District Policy DFF (Local) provides: “A reduction in force may take place when the Board determines that financial exigency or a program change requires the discharge or nonrenewal of one or more employees. Such a determination constitutes sufficient cause for discharge.

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Ms. Lee’s 2004-05 contract provides:

8.1 Termination: This Contract will terminate upon:

8.1.2 Financial exigency: A determination by the Board that a financial exigency requires a reduction in personnel. Unless othrewise defined in local policy, “financial exigency: means any event or occurrence that creates a need for the District to reduce financial expenditures for personnel, including a decline in the District’s financial resources, a decline in enrollment, a cut in funding, a decline in tax revenues, or an unanticipated expense or capital need.

Pursuant to Board Policy DFF (Local) the Board has considered Ms. Lee for any available positions within the District for which she may be qualified.

There are no available open positions within the District for which Ms. Lee is qualified as of November 2, 2004.

Ms. Lee is qualified to serve as a senior administrator in the District by virtue of her training and experience. However, there are currently no vacant positions in the District.

Ms. Lee alleges, by virtue of here 2004-05 assignment and her certification, that in determining the persons to be considered for termination as a part of the reduction in force, she should have bee considered for other administrative positions.

V. DISCUSSION

It is the burden placed upon the Petitioner to establish, by a preponderance of the evidence that Petitioner was correct in its application of its Board policies.

The Examiner will give due weight to the Board Policies, documentary evidence, facts, authorities cited and provided, as well as all testimony elicited at the hearing.

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The cases cited and relied upon by both Petitioner and Respondent set forth the position of the Commissioner of Education on the salient issues before the Hearing Examiner.

The primary issue in this proceeding focuses on whether or not the actions of Petitioner in this matter were consistent with the Wilmer Hutchins ISD Board policies thereby substantiating a finding of good cause for purposes of her termination.