DOCKET NO. 123-LH-0510
AUSTIN INDEPENDENT ' BEFORE
SCHOOL DISTRICT'
'WILLIAME.STERLING, JR.
VS.' CERTIFIED HEARING EXAMINER
'
MARGARITA DECIERDO'TEXAS EDUCATION AGENCY
RECOMMENDATION OF
THE CERTIFIED HEARING EXAMINER
Statement of the Case
Austin Independent School District (AAISD@), Petitioner, has proposed the termination of the term contract of Margarita Decierdo (ADecierdo@), Respondent, under Texas Education Code ' 21.211.
AISD is represented by Ms. Marquette M. Maresh and Ms.DorcasA.Green of Walsh, Anderson, Brown, Gallegos & Green, P.C., Austin, Texas. Decierdo is represented by Mr.RobertS.Notzon of the Law Office of Robert S. Notzon, Austin, Texas.
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:
Decierdo=s Employment
1.Decierdo is employed by AISD as a professional employee pursuant to a term contract dated May 14, 2008 for a period of three years beginning with the commencement of duty days for the school year 2008-09. See, Exhibit 26 (the contract).
AISD v. Decierdo Hearing Examiner=s Recommendation B1
2.Decierdo is employed by AISD as the Director of the Department of Diversity and Intercultural Relations for Austin ISD (ADDIR@). Hearing Transcript at 139/11-17.
3.In that position Decierdo (a) serves as Aa resource on diversity issues,@ (b) promotes Aintercultural dialogue, understanding and respect among the many cultural identities represented within Austin=s diverse community,@ (c) serves as Aa liaison and lead facilitator@ for African American and Hispanic Quality of Life Task Force recommendations; (d) collaborates Awith the University of Texas to develop and sustain a network of individuals with knowledge and expertise on strategies to eliminate the achievement gap between ethic groups,@; (e) works Awith the Office of Human Resources to facilitate the recruitment and retention of African American and Hispanic teachers and administrators,@; and (f) monitors Athe school district=s initiatives, programs and practices relating to intercultural relations and diversity.@
See, Exhibit R-1 (Decierdo=s job description).
AISD=s Relevant Board Policies
4.At the time Decierdo=s term contract with AISD became effective, AISD=s Board Policy DFF (Local - 2004), which was issued November 2, 2004, was the policy governing termination of employment by reduction in force for professional employees with Chapter 21 term contracts. See, Exhibit 40 (DFF Local - 2004). The parties admit that Board Policy DFF (Local - 2004 ) is a board policy applicable to Decierdo=s term contract rather than versions of that policy created after the date of the Decierdo contract. Hearing Transcript at 124/13-25 and 125/1-18; Decierdo=s Pre-Hearing Statement at 2/9-11.
AISD v. Decierdo Hearing Examiner=s Recommendation B1
5.Board Policy DFF (Local - 2004) states in part:
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 in accordance with this policy. Such a determination constitutes sufficient cause for discharge or renewal.
Exhibit 40 at p. 2.
6.At the time Decierdo=s term contract with AISD became effective, AISD=s Board Policy DFBA (Local - 2008), which was issued April 3, 2008, was the policy governing suspension and termination during term contracts for professional employees with Chapter 21 term contracts. See, Exhibit 37 (DFBA Local - 2008). The parties admit that Board Policy DFBA (Local - 2008) is a board policy applicable to Decierdo=s term contract rather than versions of that policy created after the date of the Decierdo contract. See, Exhibit 37.
7. Board Policy DFBA (Local - 2008) provides 39 different reasons for the proposed termination of an employee=s term contract. The ninth reason states: A 9. Reduction in force because of financial exigency or program change. [See DFF].@ The thirty-ninth reason states: A39. Any reason constituting good cause for terminating the contract during its term.@ Exhibit 37 at p. 1-3.
8.AProgram Change@ is defined in Board Policy DFF (Local - 2004) as:
[A]ny elimination, curtailment, or reorganization of a curriculum offering, program, or school operation. The term shall include, but not be limited to, a change in curriculum objectives, a modification or reorganization of staffing patterns on a particular campus or Districtwide, a redirection of financial resources to meet the educational needs of the students, a lack of student response to particular course offerings, legislative revisions to programs, or a reorganization or consolidation of two or more individual schools or school districts.
See, Exhibit 40 at p. 1.
AISD v. Decierdo Hearing Examiner=s Recommendation B1
9.Good cause is not defined in Board Policy DFBA (Local - 2008) or Board Policy DFF (Local - 2004).
10.According to Board Policy DFBA (Local - 2008) and Board Policy DFF (Local - 2004), AISD must prove the following factual elements in order to terminate its contract with Decierdo.
(i) Existence of a Chapter 21 term contract between AISD and Decierdo;
(ii)Superintendent=s recommendation for a reduction in force due to program change with a proposal for the identification of the employment areas affected;
(iii)Board of Trustees= determination that a program change requires a reduction in force with identification of the employment areas affected;
(iv)Superintendent=s recommendation that certain employees be discharged within the affected employment areas due to the reduction in force must have been determined by application of the following four criteria sequentially to the extent necessary to identify Decierdo as the employee who least satisfies the criteria:
[a]Certification, and
[b]Performance.
If the Superintendent at her discretion decided that the documented performance differences between two or more reduction-in-force prospects are too insubstantial to rely upon she may proceed to
[c]Seniority.
AISD v. Decierdo Hearing Examiner=s Recommendation B1
And thereafter and to the extent needed
[d]Professional Background.
(v)If Decierdo applies for an open employee position, the District must offer the position if Decierdo
[a]Meets the objective criteria for that position and
[b]Is the most qualified internal applicant for the position.
(vi)District must give Decierdo written notice of proposed discharge during the period of the term contract which must include
[a]A statement of the reason(s) requiring such action, and
[b]A statement that the employee is entitled to a hearing before an independent hearing examiner in accordance with Board Policy DFD (Exhibit 31 at AISD 0477-0480).
See, Exhibits 37 and 40.
February 22, 2010 Board Action
11.On February 22, 2010, the Superintendent presented the Board of Trustees two options for reduction in force, Option #1 B a proposed declaration of financial exigency and program change, and Option #2 B a proposed declaration of program change alone. See, Exhibits 11 and 12. After the presentation, the Board of Trustees passed only Option #2 B Resolution to Declare a Program Change (Reduction in Force). See, Exhibit 12.
AISD v. Decierdo Hearing Examiner=s Recommendation B1
12.Both Option #1 and Option #2 would have approved the identification of the same 22 areas of employment for elimination and directed the Superintendent to follow policy DFF (Local) and return to the Board with any contract recommendations for consideration. By passing Option #2, the Board of Trustees rejected the combination of financial exigency and program change as reasons for the ordered reduction in force (RIF) and adopted program change alone as the reason for RIF. Decierdo=s employee position is one of the 22 positions identified for elimination. Compare, Exhibits 11 and 12.
Application of Section 21.211 (a) and Relevant Board Policies to Facts
13.There exists a Chapter 21 term contract between AISD as employer and Decierdo as employee. Decierdo once challenged whether or not her contract was enforceable under Chapter 21, but in her post-hearing brief admitted her contract is an enforceable Chapter 21 term contract. See, Exhibit 26; Decierdo=s Post-Hearing Brief at p. 1, footnote 1; AISD=s Post-Hearing Brief at p. 2-4.
14.Decierdo has also withdrawn her claim for a breach of due process against AISD. See, Decierdo=s Post-Hearing Brief at p. 1, footnote 1.
15.The Board of Trustees=February 22, 2010 declaration adopting Option #2 constituted a determination that the program change required a reduction in force in an employment area where Decierdo was positioned. See, Exhibits 12 and 40.
16.The Board of Trustees=April 26, 2010 resolution adopting the Superintendent=s recommendation regarding the proposed termination of Decierdo constitutes a determination that the Board has accepted the Superintendent=s recommendation that the Decierdo contract be terminated. See, Exhibits 30 and 40.
AISD v. Decierdo Hearing Examiner=s Recommendation B1
17.Decierdo challenges whether AISD properly applied the applicable definition of program change to Decierdo=s position to determine an appropriate recommendation to the Board of Trustees of whether the DDIR should be included among the employment areas affected. Decierdo=s Pre-Hearing Statement at 3/19-21.
18.Decierdo does not challenge the Superintendent=s failure to apply the distinguishing criteria once Decierdo=s department was chosen as an affected area because it is undisputed that Decierdo was the only Chapter 21 term contract employee in DDIR. Hearing Transcript at 78/11-25 and 79/1.
19.After informing Decierdo that her position was recommended for elimination pursuant to a RIF, AISD made Decierdo aware of vacant employment positions within the District. But AISD found Decierdo was presently unqualified for the only position for which she expressed interest because Decierdo lacked any sort of Texas public school teaching certificate. Hearing Transcript at 158/16 through 161/24.
20.During the period between early notification of a potential RIF affecting Decierdo=s position and the hearing in this proceeding, AISD made Decierdo aware of the possibilities then available for Decierdo to acquire a teaching certificate by various alternative means. Hearing Transcript at 151/24 through 161/25. Decierdo failed to capitalize on these opportunities before the date of the hearing. Supra.
21.By letter dated April 26, 2010, AISD notified Decierdo of the Board of Trustees= intent to terminate Decierdo=s term contract as a professional employee.
See, Exhibit 31 (the notice of proposed termination letter).
AISD v. Decierdo Hearing Examiner=s Recommendation B1
22.The reason for the proposed termination, as stated in the notice of proposed termination letter, is AReduction in force because of program change pursuant to Board Policy DFF.@ See, Exhibit 31.
23.By letter dated May 14, 2010, Decierdo, through her attorney of record, requested
an appeal of AISD=s notice of proposed termination of Decierdo=s employment contract. See, Exhibit R-9.
24.By letter dated May 26, 2010, WilliamE.Sterling, Jr. was assigned by the Office of Legal Services, Division of Hearing & Appeals, Texas Education Agency to preside as the certified independent hearing examiner for Docket No. 123-LH-0510, AustinISD v. Margarita Decierdo. See, Record, Vol.I., Item 1 (the assignment letter).
25.The record of this cause shows that AISD has met its burden of proof as to the factual elements of AISD=s termination policies for the termination of Decierdo=s term contract for the sole noticed reason: reduction in force due to program change. However, AISD=s policies, Board Policy DFBA (Local - 2008) and Board Policy DFF (Local - 2004), violate TEX. EDUC. CODE ' 21.211 (a) to the extent that such policies permit AISD to terminate a Chapter 21 term contract for the sole reason of a program change.
26.The record of this cause affirmatively shows that the Board of Trustees did not propose to terminate Decierdo=s contract for any other reason than a program change. See, Exhibits 12 and 31.
AISD v. Decierdo Hearing Examiner=s Recommendation B1
27.The record of this cause affirmatively shows that a program change does not constitute good cause because AISD admits that the reason for Decierdo=s termination had nothing to do with her performance as an employee. Hearing Transcript at 33/6-7, 90/14-19, 207/1-4.
28.There is no evidence in the record that Decierdo=s job performance was inadequate or that Decierdo had committed any employee misconduct by act or omission.
29. The record of this cause affirmatively shows that a program change does not constitute a financial exigency that requires a reduction in personnel because AISD=s Board of Trustees passed Option #2 instead of Option #1. Exhibits 11 and 12.
Discussion
AISD=s Contentions
AISD contends that the following are the only material issues: (1) whether AISD followed the Board=s termination policies for a reduction in force termination of Decierdo=s contract so that the proposed termination was lawful and appropriate; and (2) whether good cause existed to terminate Decierdo=s contract mid-term pursuant to a reduction in force due to program change. AISD presumes that the Board=s termination policies are lawful. Hearing Transcript at 32/10-22.
Decierdo=s Relevant Contentions
Decierdo contends that AISD exceeded its authority to terminate Chapter 21 contracts prior to the end of their term as set forth in TEX. EDUC. CODE ' 21.211 (a) when it enacted and then applied its Board Policy DFF (local -2004) to Decierdo=s contract and proposed termination based on reduction in force due to program change.
AISD v. Decierdo Hearing Examiner=s Recommendation B1
Decierdo also contends that, even if she is wrong about the limitation on AISD=s termination authority, AISD failed to comply with limitations of its own termination policy or ensure that Decierdo fit within its parameters. In the application of AISD=s relevant termination policies, Decierdo argues that AISD must prove that Decierdo=s job position and employment area fit within the definition of program change=s three categories of curriculum offering, program, or school operation. Decierdo states that AISD failed to demonstrate that Decierdo=s job position and employment area fit within these three categories.
Decierdo=s Other Contentions
Decierdo originally argued that AISD breached her due process rights under TEX. CONST.Art. I, ' 19 because her contract was not governed by Chapter 21 and she had a direct right of appeal to the AISD=s Board of Trustees without using a hearing before a Chapter 21 certified hearing examiner. However, in her post-hearing brief, Decierdo withdrew her claim for a breach of due process against AISD and affirmatively accepted as fact and law that she had a contract enforceable under Chapter 21. Decierdo=s Post-Hearing Brief at p. 1, footnote 1.
Decierdo originally argued that she had a taking claim against AISD under TEX. CONST.Art. I, ' 17. However, AISD filed a plea to the jurisdiction asserting that a Chapter 21 certified hearing examiner does not have subject matter jurisdiction of the taking claim. Such plea was granted during the hearing. Hearing Transcript at 38-40.
AISD Exceeded Statutory Limitations of TEX. EDUC. CODE ' 21.211 (a)
AISD v. Decierdo Hearing Examiner=s Recommendation B1
A school district=s authority to terminate a term contract during its term is limited. TEX. EDUC. CODE ' 21.211 (a) states that Athe board of trustees may terminate a term contract and discharge a teacher at any time for: (1) good cause as determined by the board; or (2) a financial exigency that requires a reduction in personnel.@ Only two reasons for termination and discharge of a term contract are permitted: good cause and financial exigency. Section 21.211 (a) does not include a program change as a separate reason for termination and discharge. By contrast, a school district=s authority not to renew a term contract is broader: it may nonrenew a term contract for any rational reason previously set forth in its employment policies. TEX. EDUC. CODE ' 21.203 (b); Bosworth v. East Central Independent School District, Tex. Comm=r of Educ. Dec. No. 090-R1-803 (Sept. 23, 2003) at p. 6, footnote 1; Tarrant v. ClearCreekIndependentSchool District, 238 S.W.3d 445, 451 (Tex.App.BHouston [1st Dist.] 2007, no pet.). But, because this is not a nonrenewal case, AISD is limited to either of two reasons: good cause and financial exigency.
The Board of Trustees has affirmatively chosen not to rely on financial exigency as the reason for the proposed termination of Decierdo=s contract. Compare, Exhibits 11 and 12. Therefore, AISD cannot rely on financial exigency as a statutorily permitted reason for proposed termination. Only Agood cause as determined by the board@ remains as a potentially legal reason for termination.
Can a Board of Trustees determine that a Aprogram change@ is Agood cause@ for proposed termination of a term contract? For purposes discharging an employee, good cause is defined as Athe 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. B Houston [1st Dist.] 1992, no writ). It has been held that this definition of good cause should be used when a term contract is proposed for termination. Tave v. Alanis, 109 S.W.3d 890 (Tex.App.BDallas 2003, no pet.). While there are definitions of Agood cause@ found in the Texas Education Code, they only apply to termination of a probationary contract mid-term and termination of a continuing contract. See, TEX. EDUC. CODE '' 21.104 and 21.156.
AISD v. Decierdo Hearing Examiner=s Recommendation B1
AISD admits that the decision to propose termination of Decierdo=s contract has nothing to do with her job performance. Hearing Transcript at 33/6-7 and 90/14-19. Therefore, Agood cause@ as defined in the Lee-Wright, Inc. and Tave cases was not and could not be the reason for the proposed termination of Decierdo=s contract.
Because AISD used Aprogram change@ as the sole reason for the proposed termination, it has violated the restrictions of TEX. EDUC. CODE ' 21.211 by proposing termination on a basis not permitted by statute. The violation makes AISD=s action of proposing termination of Decierdo=s contract unlawful, arbitrary and capricious. Peevy v. Carlile, 135 Tex. 132, 139 S.W.2d 779 (1940) [superintendent=s disapproval of a teacher=s contract for a non-statutory allowed reason was without authority in the law]. ASchool officials may not exceed the authority granted by law.@Smith v. Alanis, No. 03-01-0073-CV, *10-11, 2002 Tex. App. Lexis 5437 (Tex.App.BAustinJuly 26, 2002, no pet.) (not designated for publication). AISD and its Board of Trustees Aare creatures of the legislature of the State of Texas@ and therefore Asubject to . . . statutory limitations.@ Doscher v. Seminole Com. Cons. Sch. Dist. No. One, Gaines County, Texas, 377 F.Supp. 1166, 1171 (N.D. Tex. 1974).
But For Violating Section 21.211 (a), AISD Applied its Termination Policies as Written
In the alternative to her claim that AISD exceeded its statutory authority, Decierdo claims that AISD failed to demonstrate that Decierdo=s job position and employment area fit within three categories of curriculum offering, program, or school operation in AISD=s definition of Aprogram change.@ Decierdo believes that unless AISD proves that all of DDIR=s activities fit into one or more of that definition=s three categories, the Board of Trustees may not terminate Decierdo=s position.