Guadalupe Vega + Before the State

#321-R1-686 -- DOCKET NO. 321-R1-686

GUADALUPE VEGA + BEFORE THE STATE + + V. + COMMISSIONER OF EDUCATION + MCALLEN INDEPENDENT + SCHOOL DISTRICT + THE STATE OF TEXAS

DECISION OF THE COMMISSIONER

Statement of the Case

Petitioner Vega challenges the nonrenewal of his teaching contract by Respondent on March 20, 1986. He was granted a hearing before the McAllen Independent School District Board of Trustees on April 14 and 16, 1986, and the action was upheld. He filed his Petition before the State Commissioner of Education on June 16, 1986. The local record has been submitted and is sufficient for resolution of this matter. Petitioner was represented at the hearing below by Raye Lokey and Hector Loya, Texas State Teachers Association Representatives. He is now appearing pro se before the State Commissioner of Education. Respondent is represented by Travis Hiester, Attorney at Law, McAllen, Texas. Maggie H. Montelongo is the Hearing Officer assigned to address this case. A Proposal for Decision was issued on June 27, 1988, containing the recommendation that the subject appeal be denied. Both parties were served with copies of the Proposal for Decision, however, Petitioner's address on file is no longer valid and his copy of the Proposal for Decision was returned to this office for lack of a forwarding address on July 2, 1988. Since then, this office has contacted Leslie Linnard, Assistant Superintendent for Personnel of the McAllen Independent School District and Tom Patton, Director of State Finance, Texas Education Agency in an attempt to obtain a current valid address on Petitioner, to no avail. The State Commissioner of Education is satisfied that reasonable efforts have been taken to provide Petitioner with a copy of the Proposal for Decision without success and notes that it is a petitioner's duty to keep this office apprised of any change in address or status. There are no exceptions filed in this matter. 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. Petitioner was employed by Respondent as a teacher during the 1985-86 school year under a term contract. 2. On March 20, 1986, Petitioner received notice of his proposed nonrenewal. (Resp's Ex. 1, Pet's Pet. for Rev.). 3. On March 26, 1986, Petitioner requested a hearing before the McAllen Independent School District Board of Trustees. (Resp's Ex. 7). The hearing was held on April 14, 1986. (Local Record). 4. Petitioner was notified that his nonrenewal was based on the grounds of immorality, activity that diminished his teaching effectiveness, reasons consisting good cause for dismissal, and failure to meet the accepted standards of conduct for the profession. These grounds, along with specific examples, were conveyed to Petitioner on March 5, 1986, March 14, 1986, March 20, 1986, April 4, 1986, and April 8, 1986. (Resp's Ex. 4, 6, 8, 10, 11). 5. On December 20, 1985, Petitioner provided beer to several of his junior high school students at a party and two students became inebriated. (Tr. I: 34, 37, 59, 101-06; Tr. II: 87). 6. Petitioner spoke to Student Soto's mother and bore the responsibility of driving the student home after the party on December 20, 1986. Instead of driving straight to the student's home, Petitioner drove Student and another student to a discotheque where alcoholic beverages were sold and stayed long enough to have a drink and dance with Student. (Tr. II: 40, 67, 94-98). 7. Petitioner made crude remarks with sexual innuendos to the students in his classroom. (Tr. 44, 47, 69-77, 107-09, 124-25). 8. Petitioner cross-examined the witnesses who testified against him at the hearing before the Board of Trustees. (Local Record). Discussion Petitioner's challenge to his nonrenewal is based on the issues of insufficient evidence and on an arbitrary and capricious act by Respondent. To support the claim of an arbitrary and capricious act, Petitioner contends that the Board of Trustees did not consider his written evaluation as required by Tex. Educ. Code Ann. +21.204(a) and +21.202 (Vernon 1986). Petitioner is estopped from making this argument because it is through his own action that the document was not introduced into the record at the hearing before Respondent. (Tr. I: 135-40). He cannot now complain of an action which he himself engineered. The record also reflects overwhelming evidence against Petitioner to support Respondent's decision. (See Findings of Fact Nos. 5, 6, 7). Communicating with sexual innuendos and contributing to the delinquency of junior high school students and assisting the abuse of alcohol do not comport with the standards of professional conduct required of teachers entrusted with the public's trust. Respondent's decision is supported by substantial evidence. Finally, Petitioner contends that the Respondent's decision to nonrenew his contract was unlawful because he was not afforded due process. A review of the record demonstrates that Petitioner received a full and fair opportunity to counter the Board's decision. He was given specific notice of the charges against him well in advance of the hearing and was also given wide latitude in cross-examining the witnesses against him. Upon conclusion of the hearing, the Board chose to adopt the recommendation of the district superintendent and that action is supported by substantial evidence. Petitioner was not denied due process. Conclusions of Law After due consideration of the record, matters officially noticed, and the foregoing Findings of Fact, in my capacity as State Commissioner of Education, I make the following Conclusions of Law: 1. The issue of the Board's failure to consider Petitioner's written evaluation is waived because Petitioner objected to its introduction at the local hearing and did not want the document considered. 2. Petitioner's alleged denial of due process is meritless. 3. Respondent's decision to nonrenew Petitioner's contract for the 1986-87 school year due to his failure to maintain appropriate standards of professional conduct and to conduct of immorality is not arbitrary and capricious. 4. Respondent's decision to nonrenew Petitioner's contract is supported by substantial evidence. 5. The recorded evidence fails to justify the substitution of the Commissioner's decision for that of the Respondent Board of Trustees. 6. Petitioner's appeal should be denied. 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 Petitioner's appeal be, and is hereby, DENIED. SIGNED AND ENTERED this _____ day of ______, 19_____.

______W. N. KIRBY COMMISSIONER OF EDUCATION