DOCKET NO. 009-LH-1004
HOUSTON INDEPENDENT SCHOOL § BEFORE A CERTIFIED
DISTRICT, §
Petitioner §
§
V. § HEARING EXAMINER FOR
§
JOHN ATWOOD, §
Respondent § THE STATE OF TEXAS
______
DECISION AND RECOMMENDATION OF THE
CERTIFIED HEARING EXAMINER
______
ATTORNEY FOR PETITIONER ATTORNEY FOR RESPONDENT
Mario L. Vasquez Mario Caballero
Assistant General Counsel Attorney at Law
Houston Independent School District 10109 Hammerly
3830 Richmond Ave., Level 3 East Houston, Texas 77080
Houston, Texas 77027
DOCKET NO. 009-LH-1004
HOUSTON INDEPENDENT SCHOOL § BEFORE A CERTIFIED
DISTRICT, §
Petitioner §
§
V. § HEARING EXAMINER FOR
§
JOHN ATWOOD §
Respondent § THE STATE OF TEXAS
DECISION AND RECOMMENDATION OF THE
CERTIFIED HEARING EXAMINER
Statement of the Case
By letter dated September 14, 2004, Houston Independent School District (hereafter Houston ISD) proposed to terminate the employment of John Atwood. Mr. Atwood was employed under a one-year employee probationary contract dated August 13, 2004. At issue in this proceeding is whether Mr. Atwood had the necessary certification to teach within Houston ISD.
On October 12, 2004, I was appointed by the Commissioner of Education as the Certified Independent Hearing Examiner to preside over this matter. A telephone prehearing conference was held on October 19, 2004, and the hearing was initially scheduled for November 9 and 10, 2004. On November 8, 2004, the parties requested a continuance of the hearing and submitted a 45-day extension of the decision due date to January 10, 2005. The continuance request was granted and the hearing date was rescheduled to December 10, 2004. On December 9, 2004, Houston ISD filed a Plea to the Jurisdiction. The Plea to the Jurisdiction required determination of evidentiary facts so this matter proceeded to hearing on December 10, 2004. At the hearing, Mr. Atwood's counsel objected to the lack of adequate notice of the Plea to the Jurisdiction and the parties agreed to reconvene the hearing on December 16, 2004. The hearing proceeded on December 16, 2004 and was completed on that date.
Based upon the preponderance of the evidence presented and admitted into the record of this proceeding, I make the following findings of fact:
Findings of Fact
1. Mr. John Atwood applied for a classroom teaching position with Houston ISD on July 27, 2004, indicating on his application form that he was certified to teach special education in the State of Texas at all levels. [HISD Exh. #2]. Mr. Atwood informed HISD that he had a probationary certificate obtained through Dallas Independent School District's alternative certification program. [Hearing Transcript, pages 150, 159].
2. From the date of Mr. Atwood's contract with Houston ISD through December 16, 2004, he had a valid probationary certificate as indicated by the State Board for Educator Certification to teach generic special education, grades pre-kindergarten through twelve. [HISD Exh. #6].
3. Mr. Atwood qualified for and was issued a probationary certificate through the alternative certification program of the Dallas Independent School District. [Hearing Transcript, pages 150, 159].
4. The State Board for Educator Certification indicated that Mr. Atwood's probationary certificate was valid for one calendar year and expired on December 16, 2004. [HISD Exh. #6].
5. There is no evidence that the State Board for Educator Certification considered Mr. Atwood's probationary certificate to have been erroneously issued or that it took any action to cancel his probationary certificate.
6. Houston ISD, when reviewing Mr. Atwood's teaching credentials, confirmed that he had a probationary certificate and that he would need to apply for a standard certificate. [HISD Exh. #3].
7. Mr. Atwood was not notified by Houston ISD that he needed to obtain a standard certificate to teach within Houston ISD, but he was advised to apply for a standard certificate, which he did on August 15, 2004, shortly after his hire date. [Hearing Transcript, 62-64, 67-68, 152].
8. Despite not being notified by Houston ISD that he needed to obtain a standard certificate to teach within Houston ISD, Mr. Atwood sought on three occasions to obtain a recommendation supporting his application for a standard certificate from Dallas ISD. [Hearing Transcript, 159].
9. Dallas ISD refused to confirm Mr. Atwood's completion of its alternative certification program or recommend Mr. Atwood for issuance of a standard certificate claiming that he had failed to complete a three-hour course required by its Program. [Hearing Transcript, 159].
10. Mr. Atwood disputes Dallas ISD's claim, indicating that he had completed the course and passed the appropriate certification examination. [Hearing Transcript, 159-160].
11. By letter dated September 16, 2004 to the State Board for Educator Certification, Mr. Atwood sought to contest Dallas ISD's removal of his application for a standard certificate, without his permission. [HISD Exh. #28; T. 162].
12. As of the date of this hearing, Mr. Atwood had received no response to his letter from the State Board for Educator Certification. [Hearing Transcript, 162].
13. Mr. Atwood notified Dallas ISD that he would not be returning as an employee and received a letter from the Superintendent thanking him for his years of service. [Hearing Transcript, 164].
14. Mr. Atwood did not apply and was not accepted to participate in the alternative certification program offered by Houston ISD at any time from July 27, 2004, the date of his application for employment with Houston ISD, through December 16, 2004, the date his probationary certificate expired. [T. 84-85, 90-93, 120].
15. There is no evidence in the record that Mr. Atwood received any mentoring or high-quality professional development that was sustained, intensive, and class-room focused throughout his teaching assignment from Houston ISD.
16. Mr. Atwood failed to provide Houston ISD with the necessary certification required by Houston ISD. [Hearing Transcript, 83-85, 120-121].
17. By letter dated September 14, 2004, Houston ISD informed Mr. Atwood that based on a recent audit, he had not completed all coursework and test requirements for full Texas certification in the alternative teacher certification program with the Dallas Independent School District; that he currently held a valid probationary certificate but that certificate only covered his employment within Dallas Independent School District, and that he was not eligible for a contract teacher position with Houston ISD. The letter also indicated that Mr. Atwood had not resigned his position as requested so his contract was being terminated effective Tuesday, September 14, 2004, pursuant to Section 6 of the probationary contract. [HISD Exh. #1].
18. Houston ISD properly determined that Mr. Atwood did not provide the necessary certification and terminated and voided his one-year employee probationary contract effective September 14, 2004.
19. Mr. Atwood filed this appeal to contest the termination of his probationary contract by Houston ISD. [Hearing Transcript, 161].
20. On October 12, 2004, I was assigned to act as the Certified Hearing Examiner in this matter by the Commissioner of Education.
19. On November 22, 2004, the Director of Credentialing Services for the State Board for Educator Certification, through e-mail correspondence, informed Houston ISD that Mr. Atwood's probationary certificate was issued based on a recommendation from Dallas ISD under the conditions that he was a current participant in the Dallas ISD alternative certification program and employed by Dallas ISD. She further notified Houston ISD that his probationary certificate was only valid as long as Mr. Atwood remained in the Dallas ISD program and that if he left that program and was admitted to another program and employed by another district, the new program would need to request a new probationary certificate and accept responsibility for training Mr. Atwood. [HISD Exh. #28].
Discussion
Plea to the Jurisdiction
Houston ISD filed a Plea to the Jurisdiction claiming that I, as the Certified Hearing Examiner, did not acquire subject-matter jurisdiction in this matter under Chapter 21, Subchapter F of the Texas Education Code because Mr. Atwood did not submit proof that he was properly certified to hold a teaching position. Specifically, Houston ISD argues that under Section 21.0031(c) of the Texas Education Code, it's determination that Mr. Atwood does not possess a valid certificate to teach within Houston ISD is not subject to the appeal procedures of Chapter 21. Mr. Atwood claims he does possess a probationary certificate issued by the State Board for Educator Certification and has appeal rights under Chapter 21. Accordingly, the issue presented in this Plea to the Jurisdiction is one of standing. For Mr. Atwood to have standing to invoke the notice and hearing procedures of Chapter 21, he must hold a certificate issued by the State Board for Educator Certification as required by Section 21.0031(a) of the Texas Education Code. If he does not hold such a certificate, then he has no standing as a teacher to invoke the appeal rights under Chapter 21. See, §21.0031(c) of the Texas Education Code. Standing is a prerequisite to subject-matter jurisdiction, and subject-matter jurisdiction is essential to my power, as a Certified Hearing Examiner, to decide this appeal.[1]
Upon review of the evidence presented, I overrule Houston ISD's Plea to the Jurisdiction. Under applicable law, it is the State Board for Educator Certification that makes certification determinations for Educators (Chapter 21, Subchapter B, §§21.031-21.058, Texas Education Code), not school districts, and it is only when a school district correctly determines that the an employee does not hold a certificate or a permit issued by the State Board for Educator Certification, that it has the right to declare void an employee's contract and terminate the employee without any appeal rights. See, Tex. Educ. Code §21.0031(c). School districts do not possess the right to ignore or alter a determination by the State Board for Educator Certification, whether right or wrong, concerning the issuance of a certificate to a teacher. If a school district believes that a certificate was issued erroneously, then it may forward that information to the State Board for Educator Certification for its consideration. See, 19 Tex. Admin. Code §249.13. If the State Board for Educator Certification determines that a certificate was erroneously issued, then it will demand return of the certificate and cancel it upon receipt. 19 Tex. Admin. Code §249.13(a). In the instant action, at the time this hearing was requested, I find that Mr. Atwood held a probationary teacher certificate issued by the State Board for Educator Certification with a "valid" status and an effective date from December 16, 2003, through December 16, 2004. Moreover, there was no evidence of the State Board for Educator Certification determining that Mr. Atwood had been erroneously issued his probationary certificate or that it had initiated any proceeding to cancel or revoke Mr. Atwood's probationary certificate pursuant to 19 Tex. Admin. Code §249.13. In fact, in its Plea to the Jurisdiction, Houston ISD acknowledged that Mr. Atwood had a probationary teaching certificate from the State Board for Educator Certification that was valid through December 16, 2004, but argued that it was only valid in the Dallas ISD alternative certification program and not within Houston ISD. The fact that it was not a valid teaching certificate for employment within Houston ISD as discussed herein, does not extinguish Mr. Atwood's appeal rights under Chapter 21, Subchapter F of the Texas Education Code. He still possessed, for jurisdictional purposes, a probationary certificate issued by the State Board for Educator Certification at the time of this hearing request that had not been cancelled or revoked. Accordingly, since Mr. Atwood had, according to the State Board for Educator Certification, a valid probationary teaching certificate at the time he requested this hearing, Houston ISD did not have the right to void his contract and deny him appeal rights under Section 21.0031(b) of the Texas Education Code. Instead, the probationary certificate gave Mr. Atwood standing to pursue those appeal rights given teachers pursuant to Section 21.251(a)(2) of the Texas Education Code. Under that provision, he had the right to a hearing before a Certified Hearing Examiner upon receiving notice of the proposed decision from Houston ISD to terminate his one-year probationary contract before the end of the contract period. He therefore met the jurisdictional requirements of Chapter 21, Subchapter F of the Texas Education Code necessary to invoke his right to this hearing.
Decision on the Merits
The primary issue in this case is whether Mr. Atwood possessed an appropriate certificate issued by the State Board for Educator Certification authorizing him to teach school pursuant to his probationary contract with Houston ISD. See, Section 21.003 of the Texas Education Code. On this issue, I find in favor of Houston ISD.
The preponderance of the evidence established that Mr. Atwood had a probationary certificate from the State Board for Educator Certification valid through December 16, 2004. However, pursuant to the Rules promulgated by the State Board for Educator Certification, Mr. Atwood's probationary certificate was valid only while he was participating in an approved alternative certification program and assigned to serve in the area and at the level of certification he sought; and while he was receiving mentoring and high-quality professional development that was sustained, intensive, classroom-focused prior to and throughout his assignment. See, 19 Tex. Admin. Code §232.4. Mr. Atwood's approved alternative certification program was with Dallas ISD. When Mr. Atwood applied for a teaching position with Houston ISD, he did not apply to or participate in its alternative certification program, meaning that he could not utilize his probationary certificate issued through Dallas ISD for a teaching position with Houston ISD.[2] Consequently, his probationary certificate issued by the State Board for Educator Certification as a result of his participation in the Dallas ISD alternative certification program was rendered ineffective for purposes of teaching within Houston ISD. Additionally, Mr. Atwood applied for but was unable to acquire a standard certificate that would have allowed him to teach within any school district in this State. Consequently, Mr. Atwood was unable to furnish Houston ISD with the necessary certification to be employed as a classroom teacher. Pursuant to Section 6 of the Houston Independent School District One-Year Employee Probationary Contract executed by Mr. Atwood, his failure to provide the necessary certification to teach within Houston ISD constituted a rejection of the employment offer by Houston ISD and rendered his probationary contract void. Accordingly, I find that Houston ISD properly determined that Mr. Atwood did not provide the necessary certification and terminated and voided his one-year employee probationary contract effective September 14, 2004.