#092-PPC-1191 --
DOCKET NO. 092-PPC-1191
GLENDA S. SITZLER +BEFORE THE STATE
+
+
V.+
+COMMISSIONER OF EDUCATION
DELORES BABERS+
+
BEFORE THE TEACHERS'+
PROFESSIONAL PRACTICES+
COMMISSION OF TEXAS+THE STATE OF TEXAS
DECISION OF THE COMMISSIONER
Statement of the Case
Complainant Glenda S. Sitzler filed a complaint with
the Teachers' Professional Practices Commission of Texas
(PPC) against Delores Babers, Respondent, alleging that
Respondent had violated the Code of Ethics and Standard
Practices for Texas Educators promulgated by the PPC.
Petitioner is represented by Rebecca M. McLamore,
Attorney at Law, Austin. Respondent is represented by L.
DeWitt Hale, Attorney at Law, Austin. The PPC was
represented by F. Patrick Whelan, Attorney at Law, Austin.
James C. Thompson is the Hearings Examiner appointed by the
State Commissioner of Education.
A joint hearing before a panel of the PPC and the
Hearings Examiner appointed by the State Commissioner of
Education was held on February 26 and 27, 1992. Sitting on
the PPC panel were:
Rosa Lavender, Kerrville (Chairperson)
Glenda Scarbrough, Andrews
Evelyn Reed, San Antonio
Thomasine Sparks, San Marcos
On April 6, 1992, the PPC promulgated its Majority
Decision Report in the above styled and numbered cause,
setting forth findings of fact and conclusions of law it
recommended to the Commissioner of Education. By unanimous
vote of all panel members, the PPC found that Respondent
violated Principle 1, Standard 1; Principle II, Standard 5;
and Principle III, Standard 2 of the Code of Ethics and
Standard Practices for Texas Educators. The PPC panel
recommended that Respondent receive an official reprimand.
On April 8, 1992, the PPC's Majority Decision Report was
sent to the parties for exceptions and replies pursuant to
19 T.A.C. +157.65(i). No exceptions were filed.
On July 6, 1992, the Hearing Officer issued a Proposal
for Decision. At the request of the Commissioner of
Education, an Amended Proposal for Decision was issued on
September 23, 1992. Exceptions and replies to the Proposal
for Decision and Amended Proposal for Decision were timely
filed and considered
The Commissioner of Education upholds the findings of
the PPC panel with respect to Principle II, Standard 5.
However, the conduct found by the panel and by the
Commissioner herein demands a more severe sanction than that
recommended by the panel in its Majority Decision Report.
Findings of Fact
After due consideration of the evidence and matters
officially noticed, in my capacity as State Commissioner of
Education, I make the following Findings of Fact:
1. Complainant Glenda Sitzler was employed as a
teacher in Bonham Independent School District (BISD) for the
1990-91 school year at L.H. Rather Junior High School. She
had been employed as a teacher in BISD for approximately
seventeen years. (Tr. 188).
2. Respondent Delores Babers was Complainant's
principal at L.H. Rather for the 1990-91 school year. (Tr.
188).
3. Respondent Babers is the holder of Texas Teacher
Certificate number XXX-XX-XXXX. (Official Notice).
Respondent also holds mid-management level certification.
(Tr. 539).
4. In October, 1989, Complainant filed an employment
grievance against James R. Grunert, Superintendent of BISD.
This grievance was sustained by the board of trustees of
BISD. (Tr. 213).
5. In January, 1991, Complainant filed an employment
grievance against Respondent Babers. This grievance was
resolved by agreement. (Tr. 193-94, 197-202; see CX-4,
CX-11, CX-12, CX-13, RX-1).
6. In April, 1991, Complainant and her husband, Pat
Sitzler (also a teacher at L.H. Rather), filed an employment
grievance against their principal, Respondent Babers, and
against Superintendent Grunert. (Tr. 219; RX-4, RX-2).
7. This grievance requested that Respondent Babers be
removed as principal at L.H. Rather, that she be
reprimanded, and that she be directed to cease any
retaliatory activities, among other remedies. (RX-2).
8. This grievance was presented to and heard by the
board of trustees, but the board took no action. (Tr.
219-20).
9. In lodging her grievances with her employer BISD,
Complainant followed established board policies and
procedures for bringing grievances through the chain of
command. (Tr. 153, 507-508).
10. Complainant and her husband resigned effective May
31, 1991. Their resignations were accepted by the board of
trustees on a vote of six to one. (Tr. 221; RX-3, CX-7).
11. After her resignation, Complainant applied for
employment as a teacher at ten or more school districts
within twenty miles of her home in Bonham, Texas, but
received no offers of employment at that time. (Tr. 225).
12. When no offers materialized, Complainant began
seeking employment outside the teaching profession. (Tr.
226).
13. Complainant applied for a job with Informations
Systems Consulting, a Dallas-based head hunting service
where her sister, Scharlet Mauldin, was branch manager.
(Tr. 32-33).
14. Ms. Mauldin was in a position to recommend a
candidate for hire, but her recommendation was subject to
the approval of the vice-president of ISC. (Tr. 37-38).
Ms. Mauldin interviewed approximately two hundred applicants
for employment at ISC annually. (Tr. 50).
15. Ms. Mauldin performed the same reference checking
procedure for Complainant's application for employment as
was required for any other applicant. This procedure
required contacting the applicant's last immediate
supervisor. (Tr. 38).
16. Ms. Mauldin delegated the task of telephoning
Complainant's last immediate supervisor to Terry Hagen, a
trainee in Ms. Mauldin's division. (Tr. 39-40).
17. It was the standard business practice of ISC when
conducting on-the-job training of its employees to have the
trainee's telephone conversations monitored by a supervisor.
(Tr. 40).
18. On this occasion, Mr. Hagen placed a telephone
call to Respondent Babers, and Ms. Mauldin monitored the
call from another extension with the mouthpiece disabled.
Ms. Mauldin overheard the entire conversation between
Mr. Hagen and Respondent Babers. (Tr. 40).
19. Respondent stated to Mr. Hagan that she could not
give Complainant a positive employment reference. Among
other negative comments about Complainant's work
performance, Respondent volunteered the fact that
Complainant had filed three grievances against Respondent
during the school year. Respondent explained that
Complainant had caused chaos on her campus and that she
would not want anyone else to have to put up with that.
(Tr. 47, 464).
20. After Ms. Mauldin had reported the content of this
employment reference to Complainant, Complainant applied for
a job with her cousin, Mary Faye Kamm, who was employed as
Regional Advocate for the United States Small Business
Administration. (Tr. 59-60; CX-2).
21. Complainant did not indicate to Ms. Kamm that she
might hear negative comments from Respondent. (Tr. 63,
228-229).
22. Ms. Kamm placed a telephone call to Respondent
Babers, as Complainant's last immediate supervisor, for an
employment reference. (Tr. 63-65).
23. During this telephone conversation, Respondent
stated to Ms. Kamm that she could not give Complainant a
positive employment reference. Among other negative
comments about Complainant's work performance, Respondent
volunteered the fact that Complainant had filed three
grievances against Respondent. (Tr. 65-67, 468-69).
24. When Respondent reported Complainant's history of
filing employment grievances to Ms. Kamm and Ms. Mauldin,
Respondent knew this information would likely have a
negative impact on Complainant's future employment
prospects. (Tr. 489-90, 514-15, 538).
25. This information had no relevance to any
legitimate assessment of the work performance of Complainant
while employed at BISD. (Tr. 546-48).
26. Principle I, Standard 1 of the Code of Ethics and
Standard Practices for Texas Educators, as duly adopted and
promulgated by the PPC, provides:
The educator shall not intentionally misrepresent
official policies of the school district or
educational organization and shall clearly
distinguish those views from his personal
attitudes and opinions.
(Official Notice).
27. Principle II, Standard 5 of the Code of Ethics and
Standard Practices for Texas Educators, as duly adopted and
promulgated by the PPC, provides:
The educator shall comply with written local
school board policies, Texas Education Agency
regulations, and applicable state and federal
laws.
(Official Notice).
28. Principle III, Standard 2 of the Code of Ethics
and Standard Practices for Texas Educators, as duly adopted
and promulgated by the PPC, provides:
The educator shall not willfully make false
statements about a colleague or the school system.
(Official Notice).
29. BISD school board policy DGBA (Local) provides:
No retaliatory action shall be taken by the Board
or any administrator against an employee or other
participant in a grievance proceeding because of
participation in the grievance procedure. 19 TAC
61.232(c).
(Tr. 154-57; CX-5).
30. State Board of Education rule 61.232 was repealed
effective May 22, 1991. Prior to that date, this provision
required each public school district in Texas to adopt a
written policy including the language quoted from policy
DGBA (Local). 19 T.A.C. +61.232. (Official Notice).
31. On September 10, 1992, in docket number
204-TTC-392, the Commissioner of Education ordered that an
official reprimand be inscribed on the face of Respondent's
Texas Teaching Certificate (number XXX-XX-XXXX) for
violating State laws respecting the TAAS test. (Official
Notice).
Discussion
The members of the PPC panel unanimously found
Respondent to have violated all three standards charged
herein.
The panel found a violation of Principle I, Standard 1.
They found that Respondent failed to clearly distinguish her
views from those of the school district by stating to
Complainant's prospective employers that Respondent would
not rehire Complainant without also informing them that (1)
the board of trustees of BISD had already taken action
directly contrary to this assertion and (2) Respondent had
no authority to make any decision regarding Complainant's
future employment at BISD. The Commissioner of Education
expresses no opinion and makes no findings with respect to
this issue because the notice sent to the parties of the
issues to be heard on February 26 and 27, 1992 may have been
defective as to this issue. (See Tr. 13-20).
The panel also found that Respondent willfully made
false statements about Complainant's work performance in
violation of Principle III, Standard 2. The Commissioner
finds it unnecessary to reach this issue in light of
Respondent's clear violation of Principle II, Standard 5.
The Commissioner agrees with the findings of the panel with
regard to Respondent's violation of Principle II, Standard
5, but finds the sanction imposed to be far too lenient for
the offense found.
Respondent freely admits that, during the course of her
negative employment references to at least two potential
employers of Complainant, she made it a point to relate the
disruption caused by several employment grievances filed by
Complainant against Respondent. While she invokes the need
for frank and honest communication among employers, she also
admits that the mere fact that an employee files employment
grievances against her employer has no relevance to any
legitimate assessment of the work performance of that
employee. By reporting these grievances in an employment
reference context, Respondent deliberately exacted a price
from Complainant for filing these grievances.
This practice cannot be tolerated. It threatens to
undermine the right of teachers to file grievances against
their employers. Under the Texas Teacher Appraisal System,
teachers rest assured that no appraisal or evaluation of
their work performance can affect their career without
notice to them and an opportunity to respond. The only
opportunity for a principal to exercise such influence
without the knowledge or participation of the teacher is in
the context of an employment reference. And the
confidential nature of an employment reference makes it
peculiarly difficult to discover or prevent abuses. In
short, the retaliation found herein would - under normal
circumstances - be unreviewable for all practical purposes.
Thus, in setting the level of sanction that is
appropriate to this case, the Commissioner must place
special emphasis on deterring all Texas administrators (not
just Respondent) from engaging in such retaliatory action in
the future. See, e.g., TEA, DTR v. Stervinou, Docket No.
151-TTC-191 (Comm'r Educ., Oct. 1991).
The Commissioner finds that retaliation against a
teacher for filing grievances against her principle is
incompatible with certification at the mid-managment level.
Accordingly, Respondent's mid-managment certificate should
be revoked. However, the Commissioner finds that the
deterrent effect of this decision is not significantly
diminished - and may even be enhanced - by allowing the
Respondent to retain her certification as a classroom
teacher.
Finally, the Commissioner takes notice that this is not
the first time Respondent's teaching credentials have been
sanctioned for violations of State law. On September 10,
1992, the Commissioner reprimanded Respondent for violations
in connection with the TAAS test. In view of this prior
reprimand, the Commissioner specifically finds that a
second, separately stated reprimand should be inscribed on
the face of all Texas teaching certificates held by
Respondent.
Conclusions of Law
After due consideration of the record, matters
officially noticed, and the foregoing Findings of Fact, in
my capacity as Hearings Examiner, I make the following
Conclusions of Law:
1. The Commissioner of Education has jurisdiction over
this appeal under Texas Education Code ++13.214 and 11.13.
2. Respondent's actions in reporting Complainant's
history of filing employment grievances to Ms. Kamm and
Ms. Mauldin retaliated against Complainant for filing those
grievances, in violation of local school board policy DGBA
(Local) and state law.
3. Respondent Delores Babers violated Principle II,
Standard 5 of the Code of Ethics and Standard Practices for
Texas Educators by retaliating against the Complainant for
filing employment grievances.
4. Complainant's request that the Texas teaching
credentials of Respondent be sanctioned should be GRANTED.
5. Respondent's mid-managment certificate number
XXX-XX-XXXX should be revoked.
6. A second, separately stated reprimand should be
inscribed on the face of Texas Teaching Certificate number
XXX-XX-XXXX and on the face of all Texas educational
credentials held by Respondent.
7. Respondent should be ORDERED to surrender all
originals and copies of all Texas educational credentials
held by Respondent to the Texas Education Agency, Division
of Educational Personnel Records, for execution of this
decision and order.
8. The Division of Educational Personnel Records
should be instructed to prepare and circulate appropriate
notices of this decision to all appropriate parties.
O R D E R
After due consideration of the record, matters
officially noticed, and the foregoing Findings of Fact and
Conclusions of Law, in my capacity as State Commissioner of
Education, it is hereby
ORDERED that Complainant's request that the Texas
teaching credentials of Respondent be sanctioned be, and is
hereby, GRANTED; and,
IT IS FURTHER ORDERED that Respondent's mid-management
certificate number XXX-XX-XXXX be REVOKED; and,
IT IS FURTHER ORDERED that a second, separately stated
reprimand be inscribed on the face of Texas Teaching
Certificate number XXX-XX-XXXX and on the face of all Texas
educational credentials held by Respondent; and,
IT IS FURTHER ORDERED that Respondent surrender all
originals and copies of all Texas educational credentials
held by Respondent to the Texas Education Agency, Division
of Educational Personnel Records, for execution of this
decision and order; and,
IT IS FURTHER ORDERED that the Division of Educational
Personnel Records prepare and circulate appropriate notices
of this decision to all appropriate parties.
SIGNED AND ISSUED this ______day of ______,
199___.
______
LIONEL R. MENO
COMMISSIONER OF EDUCATION