DOCKET NO. 040-LH-1108
DALLAS INDEPENDENT SCHOOL § BEFORE ROBERT C. HWANG DISTRICT § § v. § CERTIFIED HEARING EXAMINER § § LINDY PERKINS § TEXAS EDUCATION AGENCY
RECOMMENDATION OF HEARING EXAMINER
Statement of the Case
Respondent, LINDY PERKINS, appeals the decision of the Petitioner, the DALLAS
INDEPENDENT SCHOOL DISTRICT, to terminate her term contract of employment as an assistant principal. Notice of the proposed termination was given to Respondent by a letter dated
October 15, 2008. Respondent requested a hearing pursuant to Chapter 21, Subpart F of the
Texas Education Code and requested the assignment of an independent hearing examiner by the
Texas Education Agency (‘TEA”). On November 7, 2008 the TEA appointed the undersigned hearing examiner to preside in this matter. The hearing in this matter was held before the hearing examiner in Dallas, Texas on January 13, 2009. Petitioner was represented by Joey W.
Moore of Texas State Teachers Association and Daniel A. Ortiz. Respondent was represented by
Christopher A. Troutt of Walsh, Anderson, Brown, Aldridge & Gallegos, P.C.
Recommendation of Hearing Examiner – Page 1 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:
1. Respondent is employed by Petitioner as an assistant principal pursuant to a term contract (Tr. Page 180, 181).
2. Notice of the proposed termination was given to Respondent by a letter dated October
15, 2008. Respondent requested a hearing pursuant to Chapter 21, Subpart F of the Texas
Education Code and requested the assignment of an independent hearing examiner to preside over a hearing and this certified hearing examiner was appointed.
3. Respondent holds a professional mid-management certificate (life), provisional secondary secretarial business grades (6-12) certificate (life); generic special education grade
(PK-12) certificate (life); and an endorsement for seriously emotionally disturbed and autistic grades (PK-12) (life). (Pet. Ex. 18, Resp. Ex. 6).
4. Petitioner’s Board of Trustees declared the existence of a financial exigency that required a reduction in personnel, as set out in Texas Education Code § 21.211(a)(2). (Pet. Ex. 6,
Resp. Ex. 18).
5. Petitioner’s Board of Trustees approved a resolution calling for a reduction in force
(“RIF”) on October 2, 2008. (Pet. Ex. 6, Resp. Ex. 18).
6. Petitioner’s Board of Trustees approved the following as employment areas to be affected by the RIF:
a. Elementary grades, subjects, departments, or programs.
b. Secondary grades, departments or programs. Recommendation of Hearing Examiner – Page 2 c. Counseling programs.
d. Special programs, such as gifted and talented, bilingual, special education,
compensatory education, and migrant education.
e. Library programs.
f. Other nonteaching professional and professional staff.
g. Teachers on probationary status.
h. Professional employees holding temporary certificates or permits.
i. Other District wide programs. (Pet. Ex. 6, Resp. Ex. 18).
7. Board Policy DFF(LOCAL) is the policy that Petitioner is required to follow in implementing the Reduction in Force. (Pet. Ex. 11, Resp. Ex. 1).
8. Petitioner’s Board Policy DFF(Local) states, in 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…
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.
Recommendation of Hearing Examiner – Page 3 1. Certification: Appropriate certification and/or endorsement for current
or projected assignment.
2. Performance: Effectiveness as reflected by appraisal records and other
written evaluative information.
If the General 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.
3. Seniority: Length of service in the District.
4. Professional Background: Professional education and work experience
related to the current or projected assignment. (Pet. Ex. 11, Resp. Ex. 1).
9. The Petitioner’s Executive Leadership Team (“ELT”) decided to eliminate positions which were determined to be “excess” according to the District’s position allocation formula.
(Pet. Ex. 17).
10. After applying the District’s position allocation formula to the campuses and assistant principal positions throughout the District, DISD determined that there was an excess of eighteen (18) high school assistant principal positions and eight (8) middle school assistant principal positions that needed to be eliminated in the reduction in force. These positions were determined by DISD to be “over formula” according to the enrollment figures the District had for the 2008-2009 school year. (Tr. Page 31).
11. The administration decided to retain four of the eighteen high school assistant principal positions upon a request from the Special Education Department. (Tr. Page 36). The Recommendation of Hearing Examiner – Page 4 four high school assistant principal positions to be retained above the position allocation formula were to be assigned to Woodrow Wilson High School, W.T. White High School, Bryan Adams
High School, and Carter High School (Tr. Page 37, 41).
12. The administration made the decision to remove yet another high school assistant principal position from the RIF process consideration because the position had a different contract length. (Tr. Page 48).
13. The RIF criteria was applied separately to the high school assistant principals, the middle school assistant principals, and the elementary school assistant principals. Assistant principals in one level were not compared with assistant principals at another level. (Tr. Page
251, 252).
14. Luis Tamez, the Executive Director in DISD’s Human Development office, was given the task of applying the criteria set out in the Board of Trustees’ October 2, 2008
Resolution and Board Policy DFF(LOCAL) to determine which assistant principal positions would be eliminated as part of the RIF. (Tr. Page 57, 58, 229, 224).
15. Tamez applied the first RIF criteria in DFF(LOCAL) “Certification” and examined the certification status of the high school assistant principals employed by DISD. Tamez found that six (6) high school assistant principals had temporary or probationary certifications and, therefore were not deemed to be fully certified. (Pet. Ex. 23; Tr. Page 61- 63, 69).
16. DISD further determined that there were no excess Associate Principal positions in
DISD at the time of the RIF and therefore they were not considered for RIF even those who were not fully certified. (Tr. Page 239 - 240, 261 - 263).
17. At least three high school assistant principals are not fully certified, yet were not selected for the RIF. (Tr. 256-260). Recommendation of Hearing Examiner – Page 5 18. Marco Walder is a high school assistant principal at Lacey Alternative, a high school campus. (Resp. Ex. 16). Mr. Walder is not fully certified; rather he holds a probationary principal’s permit which expires on August 13, 2009. (Resp. Ex. 16). Mr. Walder was not selected for the RIF and was not proposed for termination. (Resp. Ex. 25); (Tr. Page 259 - 260).
DISD determined that the position of assistant principal at an alternative high school did not need to be eliminated, because it was an alternative school position at a campus whose operations include summer school, for a total of 226 working days. (Tr. Page 143).
19. Seaborn Phillips is a high school assistant principal at Roosevelt High School. (Resp.
Ex. 16). Mr. Phillips is not fully certified; rather he holds a temporary principal’s permit which expires on August 7, 2009. (Resp. Ex. 16). Mr. Phillips was not selected for the RIF and was not proposed for termination. (Resp. Ex. 25, Tr. Page 256 - 257).
20. Belinda Rosas-Delgado is a high school assistant principal at Sunset High School.
(Resp. Ex. 16). Ms. Rosas-Delgado is not fully certified; rather she holds a probationary principal’s permit which expires on July 30, 2009. (Resp. Ex. 16). Ms. Rosas-Delgado was not selected for the RIF and was not proposed for termination. (Resp. Ex. 25, Tr. Page 258 - 259).
21. Tamez applied the next RIF criteria in DFF(LOCAL) “Certification” and examined the performance of the high school assistant principals employed by DISD for the most recent school year 2007 - 2008. The District did not review any other written evaluative information, beyond that contained with the most recent DISD appraisal. (Tr. Page 269).
22. DISD did not review the performance appraisals of assistant principals who were first hired by DISD for the 2008-2009 school year because DISD did not evaluate that individual’s performance as an assistant principal during the 2007-2008 school year. (Tr. Page 151).
Kimberly Hines-Anderson, Bryan Spiritus, Cracencio Alvarez, and Tomas Ornelas were not Recommendation of Hearing Examiner – Page 6 evaluated under the performance criterion. (Tr. Page 282). The same individuals were not selected for the RIF or proposed for termination. (Pet. Ex. 25).
23. DISD further determined that there were no excess Associate Principal positions in
DISD at the time of the RIF and therefore they were not considered for RIF. (Tr. Page 239 - 240,
261 - 263).
24. Two high school assistant principals were placed on the RIF list because they had an overall “Below Expectations” appraisal for 2007-2008. (Resp. Ex. 25, Tr. Page 74 - 76, 173).
25. Five high school assistant principals, including Perkins, were placed on the RIF list because they all received no “Exceeds Expectations” ratings in any domain in their 2007-2008 performance appraisal. (Tr. Page 76 - 77). Under the performance criterion, the District selected for the RIF any high school assistant principal who did not have at least one “exceed expectations” rating. (Tr. Page 127). The District did not consider the numerical scores associated with the ratings of each domain. (Tr. Page 290).
26. Respondent’s previous two years’ evaluations were rated as “exceeds expectations.”
(Resp. Ex. 3). In her most recent appraisal, she received all “proficient ratings.” (Resp. Ex. 5).
In her 2007-2008 appraisal, she scored the highest possible numerical score for a proficient rating in each domain. (Resp. Ex. 5). Respondent’s cumulative score for her 2007-2008 appraisal was 151. (Resp. Ex. 5).
27. The District applied different performance criteria to teachers and assistant principals.
When identifying teachers for the RIF, only those who had an overall rating of “below expectations” were selected for the RIF. For teachers who had an overall rating of “proficient,” the District utilized the third criterion, seniority. (Tr. Page 292).
28. Petitioner’‘s Board Policy DFF(Local) states: Recommendation of Hearing Examiner – Page 7 Once the General Superintendent has identified the appropriate employees in the
affected area(s), those employees shall be considered for other available positions
for which they apply and are qualified up to the date of a hearing requested in
accordance with the provisions below. Assignments to new jobs shall be based on
matching of certification, qualifications, experience and skill sets.
After considering the General Superintendent’s or Board’s recommendation, and
if no vacancies exist for which the identified employees are qualified, the General
Superintendent shall determine the employees to be proposed for discharge or
nonrenewal, as appropriate.
29. Respondent has applied for the following vacant positions: (a) Principal, Hotchkiss
Elementary School (Resp. Ex. 26); (b) Principal, John F. Kennedy Learning Center (Resp. Ex.
29); (c) Supervisor of the Multi-Language Enrichment Program (Resp. Ex. 27); (d) IDEA
Coordinator for the Special Education Department (Resp. Ex. 28); (e) Assistant Principal,
Lincoln High School (Resp. Ex. 24, Tr. Page 203-204). Respondent has not been offered a job in these vacant positions by DISD.
30. DISD offered Respondent a position as a special education classroom teacher position at Amelia Earhart Elementary School. Respondent has refused this job position. (Tr. Page 180,
190, 209, 210).
Discussion
Petitioner’s Board of Trustees declared the existence of a financial exigency that required a reduction in personnel. The Board of Trustees set out the employment areas to be affected by the RIF. The administrators were charged to identify employees to be discharged based on the Recommendation of Hearing Examiner – Page 8 following order of importance: (1) certification, (2) performance, (3) seniority, (4) professional background.
Petitioner’s administrators decided to separate the secondary department into “high school assistant principal” and “middle school principal”. Then the administrators applied the
RIF criteria separately to each group. Board Policy DFF(Local) does not provide for division of secondary department. The division of grades 7 through 12 of secondary department has been held arbitrary and capricious in Carla Peevey v. Liberty Hill Independent School District, Docket
No. 417-R1-691 (Comm’r Educ. 1991).
Petitioner’s administrators failed to include associate principal as employees for consideration for RIF.
Petitioner’s administrators failed to include high school principals who were not fully certified for consideration for RIF under certification criteria including Marco Walder, Seaborn
Phillips, and Belinda Rosas-Delgado.
As Petitioner’s administrators applied the second criteria of performance, the administrators excluded the new hires because they did not have on record appraisals for them to review. In such case, the administrators should have proceeded with the application of the next criteria “seniority” or should have taken additional steps to evaluate and appraise the new hires in order that they can be subject to consideration for RIF. The administrators failed to do either.
Petitioner’s administrators then applied different standards of review between teachers and assistant principals. While the administrators decided to proceed to the next criteria of seniority for teachers who had proficient appraisals, they decided a different approach for assistant principals: those who did not have any “exceeds expectations” appraisals would be subject to RIF selection. Recommendation of Hearing Examiner – Page 9 Finally, the Board Policy requires that employees identified for termination under RIF be considered for other available positions for which they apply and are qualified. Petitioner failed to consider Respondent for all positions available.
Conclusions of Law
After due consideration of the record, matters officially noticed, and the foregoing
Findings of Fact, in my capacity as the Hearing Examiner, I make the following conclusions of law:
1. The Hearing Examiner has jurisdiction of this subject matter pursuant to Chapter 21,
Subchapter F, §21.251 of the Texas Education Code.
2. The District Board of Trustees may terminate a term contract and discharge an assistant principal at any time for a financial exigency that requires a reduction in personnel.
Texas Education Code §21.211(a)(2).
3. Petitioner violated Board Policy DFF(Local) separating into two groups in secondary department, high school assistant principal and middle school which was not approved by the
Board of Trustees.
4. Petitioner violated Board Policy DFF(Local) in failing to select for the RIF all employees within the affected employment area who were not fully certified.
5. Petitioner violated Board Policy DFF(Local) in applying the performance criterion differently to teachers and assistant principal.
6. Petitioner violated Board Policy DFF(Local) in failing to apply the performance criterion to employees who were new hires to the District.
Recommendation of Hearing Examiner – Page 10 7. Petitioner violated Board Policy DFF(Local) in failing to apply the performance criterion to employees who were associate principal.
8. Petitioner violated Board Policy DFF(Local), by failing to consider Respondent for vacant positions for which she applied and was qualified.
Recommendation
After due consideration of the evidence and matters officially noticed, and the foregoing
Findings of Fact and Conclusions of Law, in my capacity as the Hearing Examiner, I respectfully
RECOMMEND that the Board of Trustees of Dallas Independent School District adopt the foregoing Findings of Fact and Conclusions of Law and FURTHER RECOMMEND that
Respondent’s employment with DISD be reinstated in the same professional capacity.
SIGNED AND ISSUED this 30th day of January, 2009.
______ROBERT C. HWANG CERTIFIED HEARING EXAMINER
Recommendation of Hearing Examiner – Page 11