DOCKET NO. 090-LH-0410

SEALY INDEPENDENT § BEFORE KYLE FRAZIER, SCHOOL DISTRICT § § TEXAS EDUCATION AGENCY § V. § CERTIFIED INDEPENDENT § ROSHONDA BROWN § HEARING EXAMINER

RECOMMENDATION OF CERTIFIED HEARING EXAMINER

STATEMENT OF THE CASE

Ms. Roshonda Brown ("Ms. Brown"), appeals the recommendation of Petitioner, Sealy

Independent School District ("SISD"), to terminate her term contract of employment as a teacher.

The following Findings of Fact and Conclusions of Law are based on the testimony heard and the exhibits presented during the administrative hearing conducted on May 24 & 25, 2010.

Ms. Brown was represented by John C. Osborne and Karen George-Baunchand. SISD was represented by Andrew D. Clark and Sara Leon with Powell & Leon, L.L.P. Kyle Frazier was the certified hearing examiner appointed by the Texas Education Agency ("TEA") to hear this matter and submit this Recommendation.

The issue presented in this case is whether SISD had good cause to terminate Ms.

Brown’s two-year dual assignment term contract (the “Contract”) pursuant to paragraph 8 of the

Contract and in accordance with Section 21.211(a)(1) and 21.251(a)(2) of the Texas Education

Code (the “Code”); i.e. was there “good cause” as defined by the Contract and those provisions

2884\Recommendation of Certified Hearing Examiner Page 1 of the Code. More specifically, the issues presented are whether Ms. Brown failed to properly notify SISD of the Class C misdemeanor citations she received, whether she violated SISD

Board Policies DH (Local) or DH (Exhibit) and whether she repeatedly failed to follow official directives.

FINDINGS OF FACT

After due consideration of the evidence and matters officially noticed, in my capacity as the Certified Hearing Examiner, I make the following Findings of Fact (citations to evidence are not exhaustive but are intended to indicate some of the basis for the particular Finding of Fact):

A. Procedural Facts

28456. Ms. Brown, an African-American, was employed by SISD as a teacher/coach pursuant to a two-year dual-assignment term contract of employment for the 2009-2010 and 2010-2011 school years [SISD Ex. 22]. Ms. Brown worked as an elementary physical education teacher at

Selman Elementary School (“Selman ES”) and as head track/cross country coach at Sealy High

School (“Sealy HS”) during the 2009-2010 school year.

28457. The SISD Board of Trustees suspended Ms. Brown without pay and proposed the termination of Ms. Brown’s two-year term contract at its lawfully called meeting on April 5,

2010. [SISD Exs. 13 & 14].

28458. By letter dated April 5, 2010, SISD proposed the termination of Ms. Brown’s contract for good cause for failure to follow official directives and various violations of SISD board policies.

28459. On April 15, 2010, Ms. Brown properly notified the Texas Education Agency that she wished to appeal the decision by the SISD Board of Trustees to terminate her contract.

2884\Recommendation of Certified Hearing Examiner Page 2 28460. On April 27, 2010, the undersigned was appointed as the hearing examiner in this matter.

B. Background information on Ms. Brown’s work history

28461. Ms. Brown graduated from Sealy HS in 1991 and from Prairie View A&M University with a B.S. degree in the summer of 1995. [Tr. II 124: 9-13].

28462. Ms. Brown’s first and only teaching job was with SISD. She began work in 1995 as a math and science teacher at Sealy Junior High. In 2003 she moved to Selman ES to teach elementary PE. Ms. Brown has coached track for 14 years at SISD, both at the junior high and high school levels. Ms. Brown was the head track coach at Sealy HS at the beginning of the

2009-2010 school year. [Tr. II 124:22-125:15].

28463. On April 13, 2009, Ms. Brown signed a two-year dual assignment term contract with

SISD for the 2009-2010 and 2010-2011 school years. The dual assignment included serving as an elementary school teacher at Selman Elementary School and head track coach at Sealy HS.

She continued to work as a teacher and coach for SISD in the 2009-2010 school year until she was suspended without pay and her contract was proposed for termination on April 5, 2010.

28464. The principal at Selman ES during the 2009-2010 school year was Larea Gamble.

C. Background information concerning Ms. Brown’s disciplinary history with SISD

28465. In the 14 years prior to January 2010, Ms. Brown had not received any written reprimands or directives from any supervisor in SISD and she had never been suspended with or without pay. [Tr. II 134: 7-12]. Her teacher evaluations and/or classroom observation walk through evaluations from 2007 through December 2009 were all positive, with ratings of proficient or exceeds expectations for all categories [Brown Ex. 5; Tr. 126:8-134:6].

2884\Recommendation of Certified Hearing Examiner Page 3 28466. Between January, 2010 and March, 2010, Ms. Brown was written up nine times, including reprimands, memos, and suspensions. [Tr. II 134:13-15].

28467. On the evening of January 5, 2010, Ms. Brown took two bags of charcoal, valued at

$9.74, from the Dollar Store in Sealy, Texas, without paying for them. As a result of her actions, she received a citation from the Sealy Police Department for Class C misdemeanor theft. Ms.

Brown was not arrested or indicted for this theft citation. Ms. Brown has not been convicted of nor has she plead guilty or no contest to this theft citation. There is no evidence of any final adjudication for this theft citation.

28468. On January 7, 2010, Ms. Brown attempted to contact Ms. Gamble to report this incident to her. She was unable to reach Ms. Gamble, so she reported the incident to the assistant principal, Reggie Crawford, and the assistant superintendent, Scott Kana, on January 7th. [SISD

Exs. 3 & 4; Tr. I 81:25 - 82:4].

28469. On January 14, 2010, Selman ES principal Principal Larea Gamble issued a written reprimand to Ms. Brown for this incident and for failing to notify her direct supervisor at SISD within 72 hours of receiving the citation. Ms. Brown was directed to refrain from further acts of moral turpitude and to follow Board policies and directives as a condition of continued employment with SISD. [SISD Exs. 3 & 4].

28470. The January 14th directive was revised by Ms. Gamble to indicated that Ms. Brown had made an attempt to contact her within 72 hours. The revised directive was issued by Ms.

Gamble on January 19, 2010, directing Ms. Brown to refrain from further acts of moral turpitude which could reflect negatively on her or SISD. [SISD Ex. 4].

2884\Recommendation of Certified Hearing Examiner Page 4 28471. On February 10, 2010, Ms. Brown arrived at work a few minutes late. After arriving at school, during the course of her explanation to her supervisor, Laura Thaxton, Ms. Brown explained that she had a “bus-related issue” that caused her to be late. While Ms. Brown did not drive a bus that morning, she had been driving a bus for SISD on a substitute basis for two months. Ms. Brown did not provide a false statement to SISD about the reason for being late.

28472. On Tuesday evening, February 16, 2010, Ms. Brown attempted to notify the school that she would be absent the following day for personal reasons - to attend to a matter in court related to her January 5, 2010 citation. Ms. Brown did not timely follow the proper campus procedure to request a substitute for a personal day through the district’s AESOP system, which required prior permission of her supervisor and at least 5 days notice. She did however speak to assistant principal Reggie Crawford on the night of February 16th to get the phone number for Kim Pekar, the secretary who handles substitutes. Ms. Brown left a message for Ms. Pekar at 9:30 p.m. stating that she would need a substitute the following day. Later that evening, at approximately

2:30 a.m. on February 17th, Ms. Brown did enter the request for a substitute in the AESOP system. Ms. Brown requested a personal day. The system established by Ms. Gamble required

Ms. Brown to request a sick day if there was short notice for a substitute. Ms. Brown did not request a sick day as she should have done in this situation.

28473. As a result of these two situations on February 10th and February 17th, Ms. Gamble prepared a written memorandum to Ms. Brown’s employment file on February 18, 2010. [SISD

Ex. 5; Tr. I 87:6-8]. The memo directed Ms. Brown to be on campus and ready to assume teaching and supervision responsibilities by 7:50 a.m. each day and to follow proper AESOP

2884\Recommendation of Certified Hearing Examiner Page 5 procedures to request a substitute teacher when she was going to be absent from school. [SISD

Ex. 5].

28474. On Friday, February 19th at 9:00 a.m. Ms. Gamble went to the gym to talk to Ms. Brown about an interaction that Ms. Brown had had that morning with another teacher. Ms. Brown was not in the gym at 9:00 a.m. when Ms. Gamble stopped by to see her. [Tr. I 88:2-4]. Ms. Brown was at Sealy HS tending to laundry for the Sealy HS track team.

28475. There were other teachers present that attended to Ms. Brown’s students while she went to the high school, so Ms. Brown’s students were not left unsupervised at any time. [Tr. II

150:8-14; 151:4-152:2; 156:4-16].

28476. According to Ms. Gamble, Ms. Brown is not released to travel to Sealy HS until 10:15 a.m. each day. [Tr. I 79:10-20]. Ms. Brown’s immediate supervisor, Elementary PE coordinator

Laura Thaxton, designated the second period of the day as Ms. Brown’s planning period - a time in addition to the conference period when a teacher, like Ms. Brown, could attend to school- related business. [Tr. II 149:5-11; 151:3-152:2].

28477. As a dual-contract teacher/coach with job responsibilities at two different campuses, Ms.

Brown was not required to sign-out when leaving the Selman ES campus to attend to coaching- related job duties at Sealy HS.

28478. On February 26, 2010, Ms. Gamble issued a written reprimand to Ms. Brown for being absent from her teaching assignment for 25 minutes without permission on February 19, 2010 and for failing to fulfill her assigned teaching duties. Ms. Brown was directed to refrain from further acts of absence from campus without permission and to fulfill her teaching

2884\Recommendation of Certified Hearing Examiner Page 6 responsibilities in a punctual and responsible manner. [SISD Ex. 6].

28479. On February 26, 2010, Ms. Brown’s daughter, who attends Selman ES, wore a hat to school and as she was walking from the bus line to her classroom was told by a teacher to remove her hat. Somehow this upset Ms. Brown’s daughter, so later in the morning Ms. Brown had a conversation with the teacher who had asked her daughter to remove her hat. By noontime, in response to a concern brought by an employee about the interaction between Ms.

Brown and the other teacher, Ms. Gamble gave Ms. Brown a written letter of suspension for the rest of the day. Ms. Brown was directed to report back to school on Monday, March 1 st to discuss her interaction with co-workers. [SISD Ex. 7; Tr. I 90:21-91:3; 152:25-155:22].

28480. On Monday evening, March 1, 2010, Ms. Brown took a pair of rubber boots, valued at

$30, from the Hometown Hardware Store in Sealy, Texas, without paying for them. [SISD Ex.

8]. As a result of her actions, she received a citation for Class C misdemeanor theft. Ms. Brown was not arrested or indicted for this theft citation. Ms. Brown has not been convicted of nor has she plead guilty or no contest to this theft citation. There is no evidence of any final adjudication for this theft citation.

28481. On March 2, 2010, Ms. Gamble issued a letter of suspension to Ms. Brown suspending her with pay from March 2nd through March 5th, pending investigation of the alleged incident at

Hometown Hardware on March 1st. [SISD Ex. 9].

28482. On March 4, 2010, Ms. Brown went to the place of business of Dale Lechler, now the president of the school board and at that time a member of the school board and a former superintendent of SISD for seven years, and told him of the two citations for Class C

2884\Recommendation of Certified Hearing Examiner Page 7 misdemeanor theft that she had received. [Tr. I 65:6-22]. Ms. Brown admitted that she had taken the items. She also admitted that she had been taking a number of different medications to deal with various medical issues that were affecting her, including some medications that a neighbor had given her, some of which were prescription medications.

28483. On March 8, 2010, Ms. Gamble issued another letter of suspension extending Ms.

Brown’s suspension with pay from March 8th through March 12th pending further investigation of the alleged incident on March 1st at Hometown Hardware. Ms. Gamble met with Pamela Morris, then the superintendent of SISD, to discuss the matter. Ms. Brown was directed to report back to

Ms. Gamble on Monday, March 22nd, after the off week for spring break. [SISD Ex. 10].

28484. On March 22, 2010, Ms. Gamble issued another letter of suspension extending Ms.

Brown’s suspension with pay for two additional days - March 22nd and 23rd - pending further investigation of the alleged incident on March 1st at Hometown Hardware and the appointment of an interim superintendent. Ms. Brown was directed to report back to Ms. Gamble on

Wednesday, March 24th to discuss the results of the investigation. [SISD Ex. 31].

28485. On March 23, 2010, Scott Kana was appointed as interim superintendent of SISD. [Tr. I

143:13-15].

28486. On March 29, 2010, Ms. Gamble issued a written reprimand to Ms. Brown for continued unprofessional conduct. The reprimand recited SISD’s version of all of the incidents that had occurred between January 5, 2010 and March 1, 2010, noted her violation of the previous written directive from her supervisor about not engaging in further acts of moral turpitude, and identified violations of SISD Board Policies and the Code of Ethics and Standard Practices for Texas

2884\Recommendation of Certified Hearing Examiner Page 8 Educators. Ms. Brown was again directed to do all of the things noted in the earlier reprimands.

Ms. Brown was also reinstated to her teaching responsibilities, but the suspension continued for all bus driving and coaching responsibilities. [SISD Ex. 11; Tr. I 84:7-14].

28487. The following day, on March 30, 2010, newly appointed interim superintendent Scott

Kana issued a written memorandum to Ms. Brown again suspending her with pay because he, as the superintendent, had determined that SISD’s best interest would be served by the suspension.

[SISD Ex. 12].

28488. On April 5, 2010, the SISD Board of Trustees met, considered the recommendations of

Scott Kana, and issued two written resolutions - one suspending Ms. Brown without pay and one proposing the termination of her contact of employment. [SISD Exs. 14 & 15]. On that same day, the president of the SISD Board of Trustees, Mark Miller, sent a certified letter to Ms.

Brown notifying her of the suspension without pay and the proposed termination of her contract.

[SISD Ex. 15].

D. Failure to Notify SISD of Criminal Charge

28489. Ms. Brown’s contract of employment, paragraph 3.3, requires Ms. Brown to “notify the

Superintendent, in writing, of any arrest, indictment, conviction, no contest or guilty plea, or other adjudication of the Employee for any felony or any other offense listed at 9 Tex. Admin.

Code $249.16(b)....with seven calendar days or any shorter period specified in District policy.”

[SISD Ex. 22].

28490. SISD Board Policy DH (Local) has very similar language, requiring any employee to

“notify his or her principal or immediate supervisor with three calendar days of any arrest,

2884\Recommendation of Certified Hearing Examiner Page 9 indictment, conviction, no contest or guilty plea, or other adjudication of the employee for any felony, any offense involving moral turpitude, and any of the other offenses listed below:...... 4.

Crimes involving moral turpitude, which includes...... theft.” [SISD Ex. 20].

28491. Ms. Brown was never arrested, indicted, convicted, never plead no contest or guilty, nor was she ever adjudicated for any felony or any offense involving moral turpitude. Accordingly, it is not clear that SISD board policy or Ms. Brown’s contractual covenants would have required her to report the citations for Class C misdemeanor.

28492. Nevertheless, Ms. Brown did timely report each citation for Class C misdemeanor theft as required by her contract and SISD Board Policy DH (Local). [Tr. I 138:18-24].

E. Unequal treatment of SISD employees

28493. The preponderance of the evidence indicates that race played no part in SISD’s decision to suspend Ms. Brown without pay or to propose termination of her contract.

28494. The preponderance of the evidence does however indicate that Ms. Brown was not treated equally compared to some other Sealy ISD employees.

28495. During the last few years at least six other SISD employees, all but one of whom were teachers, were accused of criminal conduct or sexual misconduct that was far more serious than the two Class C misdemeanor theft citations that Ms. Brown received. In every instance but two, the other employees, all of whom were white, resigned.

28496. Employees number 1 and 2 were each white female teachers subject to allegations of sexual misconduct with students. Both teachers were suspended with pay and subsequently resigned. In addition to being suspended with pay, Employee 2 was also suspended without pay

2884\Recommendation of Certified Hearing Examiner Page 10 for a period of time before her resignation. [Tr. 202:1-5].

28497. Employee 3, who was not a certified teacher, was charged with two felonies - identify theft and forgery - that involved a credit card for her step-son, a then 23 year old mentally retarded person. [Tr. I 218:11-12, 20-25; 247:12-20; 251:1-2]. The amount in controversy was at least $800. After a period of time for investigation of the allegations by the district attorney, these two charges were no billed by the Austin County grand jury. [Tr. I 204:10-11; 252:4-11].

Employee 3 was not reprimanded or suspended by SISD at any time, including the period after she was charged and the period while the charges were being investigated by the district attorney. Employee 3 still works for SISD today. [Tr. I 203:17-25]. Unlike Ms. Brown,

Employee 3 has not been accused of any subsequent misconduct. [Tr. I 225:8-13]

28498. The decision not to terminate Employee 3 was made solely by the Director of Human

Resources, Darryl Morris, and the then superintendent of SISD, Pamela Morris. [Tr. I 220:14-

19]. Employee 3 was not given special treatment based on her race. [Tr. I 224:22-24].

28499. Employee 4 was a white teacher accused of misuse of a credit card in an amount between

$500 and $1,500. This employee ultimately resigned in lieu of termination. [Tr. 204:23-25].

28500. Employee substitute was a white substitute teacher who was recommended for a contracted position with the district. [Tr. I 205:6-15]. This employee was accused of theft of a trailer approximately ten years ago. The SISD board did not initially approve the hiring of this teacher because of negative background information, but subsequently did hire this substitute as a contracted teacher. [Tr. I 206:1-3; 215:17-216:14].

28501. Employee 5 was a white male teacher accused of inappropriate physical contact with a

2884\Recommendation of Certified Hearing Examiner Page 11 student. After a three-day suspension with pay, the teacher was reassigned to a different position within the school district where there are other professional educators in charge of the students and he’s only assisting and he’s never alone with students. [Tr. I 216:4-25; 237:5-13].

28502. Ms. Brown was treated differently and more harshly than employees number 2, 3, 5 and employee substitute. Unlike Ms. Brown, Employee 2 was suspended without pay for a period of time prior to her ultimate resignation. Employee 3 was never suspended, with or without pay, during the course of the investigation of criminal allegations against her. Employee 5 was suspended with pay and ultimately reassigned to a different position within the district.

Employee substitute was ultimately hired despite a negative mark on his record for theft of a trailer.

28503. SISD has had a policy in the past four years of being very measured in response to allegations of criminal behavior by employees. [Tr. 208:15-25]. During the past four years,

Darryl Morris was the director of human resources and his wife, Pamela Morris was the superintendent for SISD from 2007 through mid-March, 2010. Ms. Morris’ superintendent’s contract with SISD was not renewed and she left the employment of SISD in mid-March, 2010, and Scott Kana was appointed as interim superintendent on March 23, 2010. Within a very short time after Pamela Morris’ departure as superintendent, Ms. Brown’s contract was proposed for termination.

F. Other defenses of Ms. Brown

28504. In December of 2009, Ms. Brown reported to then superintendent of SISD, Pamela

Morris, that she had witnessed then assistant superintendent of SISD, Scott Kana, drinking

2884\Recommendation of Certified Hearing Examiner Page 12 alcohol on school property. [Tr. 182: 18 - 183: 13].

28505. On two different occasions, Dr. Darryl Morris observed that Mr. Kana was intoxicated while at school - once in his office at SISD in December, 2009 and once at a SISD board meeting in 2010. [Tr. II 216:7-217:18].

28506. There was an apparent conflict between the former board president, Mark Miller, and the former superintendent, Pamela Morris, concerning Ms. Brown’s coaching assignment and stipend that Ms. Brown believes is the real reason for her proposed termination. [Tr. II 183:20-

185:12].

28507. While there is some evidence that Ms. Brown suffers from ADHD and that condition may have contributed to her acts of petty theft, the preponderance of the evidence does not indicate that Ms. Brown timely notified SISD of this condition until after receiving the second citation for petty theft. [Tr. II 168:3-169:11]. Ms. Brown never requested any accommodation from SISD for her ADHD condition. [Tr. II 167:16-20]. The evidence suggests that if Ms.

Brown had notified SISD of her disability, then the district would have accommodated her in an appropriate manner.

G. Summary

28508. The accusations of theft were known to Ms. Brown’s student’s and the Sealy, Texas community, which may have diminished her effectiveness as a classroom teacher and coach.

[Tr. I 123:1-17; 144:4-8; 145:21-22].

28509. Committing theft and failing to follow written directives is inconsistent with the professional standards of the teaching profession in Texas. [Tr. I 122:16-24].

2884\Recommendation of Certified Hearing Examiner Page 13 28510. A reasonably prudent educator would not commit misdemeanor theft after being instructed not to do so. [Tr. I 123:18-25].

28511. Acts of theft by a professional educator have an adverse impact on the school and the work environment. [Tr. I 123:1-14].

28512. One single act of petty theft, standing alone, would not constitute grounds for termination of Ms. Brown’s contract. [Tr. 67:18-22]. If not for the second incidence of petty theft of a $30 pair of rubber boots on March 1, SISD would not have sought termination of Ms. Brown’s contract. [Tr. 124:22-125:7; 148:22-149:2].

28513. SISD did not exhaust all available remedies, e.g. suspension without pay, prior to proposing termination of Ms. Brown’s contract.

28514. The preponderance of the evidence indicates that SISD does have good cause to suspend

Ms. Brown without pay, pending further counseling, investigation by SISD of Ms. Brown’s attempts to address her medical condition, and a final adjudication on the citations for petty theft.

28515. The preponderance of the evidence indicates, ever so slightly, that SISD has good cause, based solely on the second citation that was in violation of a written directive, to terminate Ms.

Brown’s contract.

DISCUSSION

SISD’s burden in a termination case such as this requires them to prove by a preponderance of the evidence that Ms. Brown’s actions or inactions constitute “good cause” to terminate her contract. In determining whether “good cause” exists to terminate the term contract of an employee, the two-prong test used in Lee-Wright, Inc. v. Hall, 840 S.W.2d 572

2884\Recommendation of Certified Hearing Examiner Page 14 (Tex.App-Houston [1st Dist] 1992, no writ) is the standard generally used in Texas. The standard imposed by this decision is (1) whether the employee failed to perform his or her duties in the scope of employment that a person of ordinary prudence would have done under the same or similar circumstances and (2) whether that failure is serious enough to call into question the continued existence of the employer-employee relationship.

SISD appears to have met the first prong of this test. Ms. Brown’s actions on January 5,

2010 and March 1, 2010 that resulted in two separate Class C misdemeanor citations for theft were not the actions of an ordinary employee of SISD or what SISD could rightfully expect of its employees. The petty theft citations were widely known in the Sealy community and they reflected poorly on SISD. Based on the two citations for petty theft, and more particularly the second theft, Ms. Brown has failed to perform as an ordinary employee would. It is much less clear whether that failure is serious enough to call into question the continued existence of the employer-employee relationship.

None of the other reasons for the proposed termination of Ms. Brown’s conduct, either individually or collectively, provide sufficient “good cause” to terminate Ms. Brown’s conduct.

Some of them are unsupported by a preponderance of the evidence. In particular, the suspension with pay on February 26 without any explanation of the reason for the suspension, appears unjustified, punitive, and perhaps discriminatory in nature. Particularly so when it was revealed to have resulted from Ms. Brown’s innocuous discussion, as a parent, with another teacher about an incident with her own child.

A single citation for Class C misdemeanor theft alone would not be sufficient “good

2884\Recommendation of Certified Hearing Examiner Page 15 cause” to terminate Ms. Brown’s contract. SISD’s current superintendent, current school board president and former superintendent, and their own expert witness all three agree on this point.

So the “good cause” for termination of Ms. Brown’s contract really boils down to the second theft citation on March 1st. The SISD board should seriously consider whether theft of a $30 pair of boots is enough to terminate the contract of a home-grown teacher with a 14 year positive relationship with the district. That is the critical question.

The second citation was in direct violation of a prior directive. A failure to comply with directives constitutes good cause for termination of a contract, even if it is only one instance of a failure to comply with directives. Allen vs. Houston ISD, Docket No. 014-RS-1001 (Comm’r

Educ. 2001). See also Fetchin v. Lewisville ISD, Docket No. 384-R2-691 (Tex. Comm’r Educ,

1993); Birkner v. North East ISD, Docket No. 083-R2-1293, 1994); and Wurthmann v. Conroe

ISD, Docket No. 023-R2-990 (Tex. Comm’r Educ., 1992) (Employee’s failure to follow written directives from supervisors constituted good cause for termination.). Ms. Brown’s violation of the directive not to engage in further acts of moral turpitude is SISD’s strongest reason for termination of Ms. Brown’s contract.

Technically, the district could rely on this one instance to justify termination of Ms.

Brown’s contract, but given her exemplary work history with SISD for 14 years, they could have considered other options than termination, such as suspension with pay for some period of time - a practice that had been followed in SISD up until Ms. Morris’ departure in mid-March and Mr.

Kana’s arrival on March 23rd as superintendent. Given that the theft citations involved a very minor amount of money and did not involve anything that Ms. Brown did while serving as a

2884\Recommendation of Certified Hearing Examiner Page 16 teacher or coach, was it is reasonable to conclude that Ms. Brown’s actions called into question the continued existence of the employer-employee relationship such that Ms. Brown contract should be terminated? The superintendent at the time of these two incidents, Pamela Morris, did not think so. The director of human resources, Dr. Darryl Morris, who was a very credible and compelling witness, did not think so. Both of them would have considered, and Dr. Morris did suggest to Scott Kana, that SISD consider suspension with pay rather than proposed termination.

In doing so, SISD could have elected to defer a decision on termination until the criminal citations had been considered by the Sealy courts. This is the course of action that the district elected to take with Employee 3 a few years earlier, when the criminal allegations involved much more serious felony charges for identify theft and forgery. Have Ms. Brown’s actions been serious enough to destroy the continued existence of the employer-employee relationship? I think not and I hope the SISD Board of Trustees will seriously re-consider its proposed action.

A recent Commissioner’s decision in a term contract termination case, Sommers v.

Judson Independent School District, Docket No. 037-R3-0109 (Comm’r Educ. 2009), raised the issue of whether there is a sufficient nexus between the teacher’s wrongful conduct and the teacher’s job duties and ability to function as a teacher, citing Board of Regents v. Martine, 607

S.W.2d 638,643 (Tex. Civ. App.-Austin 1980, writ ref’d n.r.e.). The two instances of petty theft that are at the core of this case occurred off campus, after school hours, and students were not involved. Ms. Brown is an elementary school PE teacher and a track coach. Ms. Brown has recognized she has issues involving ADHD that may affect her judgment and is apparently attempting to address her situation medically. She has not done anything at the school or with

2884\Recommendation of Certified Hearing Examiner Page 17 students or other teachers that would indicate she can not be an effective educator and coach.

She is well-known and well-liked by students in SISD.

Good cause for suspension without pay is a lesser standard than for termination of a term contract. Bayer v. Austin ISD, 062-R3-1296 (Tex. Comm’r Educ, 1997). Good cause for suspension without pay is met when a teacher’s error causes embarrassment to a school. Id.

SISD has established good cause for suspension without pay because Ms. Brown’s citations for petty theft are widely known within SISD and the town of Sealy and have likely caused some embarrassment to the school.

CONCLUSIONS OF LAW

After due consideration of the record, matters officially noticed, and the foregoing

Findings of Fact, in my capacity as Certified Hearing Examiner, I make the following

Conclusions of Law:

1. The Hearing Examiner has jurisdiction of this matter pursuant to Chapter 21, Subchapter

F, of the Code.

2. Ms. Brown is a "teacher" as defined in Chapter 21, Subchapter E, §21.201 of the Code.

3. Ms. Brown was employed as a teacher by SISD pursuant to a term contract under

Subchapter E, §21.204 of the Code.

4. SISD properly notified Ms. Brown of the proposed termination of Ms. Brown’s term

contract in accordance with the provisions of §21.211 of the Code and SISD policy.

5. The appeal by Ms. Brown was conducted pursuant to Chapter 21, Subchapter F, §21.256

of the Code, and the standard of review in determining the findings of fact was based on

2884\Recommendation of Certified Hearing Examiner Page 18 the "preponderance of the evidence."

6. Termination is proper if SISD proves, by a preponderance of the evidence, one of the

reasons listed in its April 5, 2010 notice letter.

7. Petitioner SISD has demonstrated by a preponderance of the evidence that Ms. Brown

failed to comply with a written directive not to engage in further acts of moral turpitude.

8. Petitioner SISD has demonstrated by a preponderance of evidence the existence of good

cause to suspend Ms. Brown’s term contract without pay.

9. Any conclusion of law deemed to be a finding of fact is hereby adopted as such.

PROPOSAL FOR GRANTING RELIEF

After due consideration of the record, matters officially noticed, and the foregoing

Findings of Fact and Conclusions of Law, in my capacity as Certified Hearing Examiner, I respectfully recommend that the SISD Board of Trustees adopt the foregoing Findings of Fact and Conclusions of Law.

Ms. Brown’s appeal of the recommended termination of her Contract is hereby denied and SISD’s proposed termination is upheld. However, it is my strong recommendation that SISD seriously re-consider the reinstatement of Ms. Brown’s employment with SISD.

SIGNED AND ISSUED this 14th day of June, 2010.

______Kyle Frazier Certified Hearing Examiner

2884\Recommendation of Certified Hearing Examiner Page 19