Recommendation of the Certified Hearing Examiner s2

DOCKET NO. 312-LH-0511

HOUSTON INDEPENDENT § BEFORE INDEPENDENT HEARING SCHOOL DISTRICT § EXAMINER ALLECIA L. POTTINGER § § vs. § § TEXAS EDUCATION AGENCY MARY CHAMBERS § RECOMMENDATION OF THE CERTIFIED HEARING EXAMINER

Houston Independent School District (HISD), Petitioner, has proposed the nonrenewal of Mary Chambers, Respondent, under Section 12 of her one-year term contract and the Texas Education Code, Section 21.206(a).

Petitioner is represented by Miles Bradshaw, Karczewski Bradshaw, LLP.

Respondent is Pro Se.

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 a Secondary Counselor at Hogg Middle School in Houston, Texas, pursuant to a term contract executed on August, 2010, by the Respondent for the school year 2010-2011. (P Ex 1, 2) The term of the contract was for one (1) year. (P Ex. 1)

2. Petitioner proposed Respondent’s nonrenewal of her contract due to a “Reduction in force (RIF) because of financial exigency or program change.” (P Ex. 6)

3. Respondent timely requested a hearing pursuant to Chapter 21 of the Texas Education Code to challenge the proposed nonrenewal.

4. The parties agreed pursuant to Tex. Educ. Code § 21.257(c), to extend by 45 days the Hearing Examiner’s deadline for issuing a recommendation.

5. A hearing was held on August 2, 2011, regarding the proposed nonrenewal.

6. Petitioner’s policy for (RIF) is found in DFF (Local). (P Ex. 7A)

1 7. The Superintendent determined that a program change was necessary due to the legislative budget reductions creating a need for a reduction in force. (P Ex. 7F) The Board was not required to approve the Superintendent’s determination. (DFF Local)

8. The Petitioner’s Board did vicariously approve the Superintendent’s determination of a necessity for a program change by approving the Superintendent proposed employment areas for reduction in force (P Ex. 7I)

9. Among the areas identified by the Petitioner as employment areas for reduction in force were “the elementary and K-8 campuses. Each elementary or K-8 campus may consider the identified ‘employment area(s)’ as needed.” and specifically listing “Counselor.”(P Ex. 7F)

10. Petitioner’s principal, Dr. Mina C. Schnitta at Hogg Middle School determined she had to reduce her budget by $200,000.00. (RR 13) Dr. Schnitta determined she would need to cut at least 8 positions. (RR 14) The eight positions chosen for RIF were Counselor, PE teacher, Spanish teacher, librarian, nurse, and then one math teacher, one reading teacher and the choir program because of low participation. (RR 14) All of the eight (8) positions were listed in the “employment areas for reduction in force” designated by the Superintendent (P Ex. 7F) Therefore, the Respondent and seven (7) other teachers were recommended for non-renewal.

11. On March 29, 2011 by certified mail the Respondent was directed to attend a conference for the record via phone conference. Respondent did not appear in person or by telephone. A Summary of the Conference was sent by certified mail on April 4, 2011. (P Ex. 4) Dr. Schnitta recommended Respondent for non-renewal of her contract on April 3, 2011. Petitioner, at a board meeting on April 14, 2011 considered and approved the proposed nonrenewal of Respondent’s term contract. (P Ex. 7M, 7N)

Issue 1.-Whether Petitioner’s Policies Supporting a Reduction in Force Were Properly Applied as the Basis for the Nonrenewal of Respondent’s One Year Term Contract

12. The first issue in this case is whether Petitioner’s policies supporting a reduction in force were properly applied as the basis for the nonrenewal of Respondent’s term contract. In order to make this determination, this examiner has applied a four part analysis of the facts and evidence in this case. First it is necessary to determine if Petitioner followed its policies in implementing a reduction in force. Second, whether a reduction in force is a valid reason for non-renewal of the term contract. Third, whether there is evidence that the proposed nonrenewal of Respondent’s term contract was based on the reduction in force. Fourth, does the evidence show the Petitioner fulfilled its obligation to consider the Respondent for any other available positions in HISD?

2 13. In their case in chief, Petitioner presented Dr. Schnitta, Ann Best and Sharon Evaves by deposition excerpts testimony as witnesses. Dr. Schnitta testified in her capacity as the school principal for Hogg Middle School School. Ms. Best testified in her capacity as the Chief Human Resources Officer for HISD and Sharon Eaves testified in her capacity as the General Manager of Budget and Financial Planning. (P. Ex 9)

14. Dr. Schnitta testified to the process she used in determining the $200,000.00 deficit, how many positions this would affect, and which program area would be affected by the RIF. (RR 14-16) Ann Best gave testimony that a team of a budget analyst and a human resource generalist met with all principals and assisted them in decision making process to ensure that DFF Local policy was followed. (Luper case RR 473- 476, 478) Dr. Schnitta also testified she did not want to cut core instructional areas. (RR 14) Dr. Schnitta looked at class size and choir which had very low enrollment and chose job code 55 which was counselor. Dr. Schnitta stated since she did not have any other positions in that job code so she considered the types of contracts held by the Respondent which was a 10 month term. Once she had determined those factors according to the guide she was given, she did not needed to do anything else for RIF based on the policy. (RR 16-19)

15. The Commissioner has decided in previous cases that when a reduction in force occurs, the teacher must be considered for other positions in the district which the teacher is qualified to fill. Wassermann v. Nederland Indep. Sch. Dist., Tex. Comm’r of Educ. Decision No. 171-R1-784 (Sept. 1, 1988) (Citing Strauch v. Aquilla ISD, Docket No. 189-R1a-782 (Comm'r Educ., August, 1983)). Dr. Schnitta testified there were no other positions at the Hogg Middle School beyond the Respondent’s job code for which she was qualified for and the other job duties the Respondent had was spread out among other workers at the school. (RR 25-26)

16. Section 13 of Respondent’s term contract states the following “This contract shall not grant or create any contractual or other expectancy of continued employment or claim of entitlement to employment beyond the term of this contract.” (P Ex. 1) Therefore, Respondent was not entitled to continue in her employment based on the contract at the Hogg Middle School campus.

17. The Respondent testified that she had received the request for a conference for the record and the summary of the conference. (RR 45-46) The Respondent was off for quite a while caring for her mother who passed away. It was at this time the Respondent was on FML. (R Ex. 1) When Dr. Schnitta was questioned about whether the Respondent was on FML at the time she requested a conference for the record, she testified that she was under the impression the Respondent had applied for FML but was denied. (RR 20) At the hearing, the Respondent stated FML was granted and then after her mother passed she was denied it denied. (RR 38) The Respondent did produce documents dated April 1, 2011 which stated she was ineligible because she did not meet the 1250 hour minimum to be eligible for FML in the prior year. (R Ex. 8) In addition, the Respondent supplemented the record with 3 post hearing documents showing there was a workers compensation claim pending with a date of the injury as April 2007 but the claim was filed in March 2011. The workers compensation claim has been challenged by the insurance carrier and the Respondents claim has been denied and is in the contest stage. (R Ex. 8) There is nothing in the record which shows the Respondent was on FML or workers compensation at the time she was requested to attend the conference for the record.

18. Therefore, Petitioner has properly applied its policies supporting a Reduction in Force as the basis for the nonrenewal of Respondent’s one year term contract.

Issue 2.-Whether Petitioner’s Recommendation to Nonrenew Respondent’s One-Year Term Contract was arbitrary and capricious.

19. A nonrenewal needs to be based on a school board’s pre-established policy reasons. TEX. EDUC. CODE §21.203(b) See also Grounds v. Tolar Indep. Sch. Dist., 856 S.W.2d 417, 418 (Tex. 1993) (holding a decision of a school district to non-renew must be "predicated on one or more of the previously established reasons.) A pre-established policy reason is valid as long as it is not arbitrary and capricious. Tarrant v. Clear Creek ISD, 238 S.W. 3d 445, 451 (Tex. App.-Houston [1st Dist.] 2007 (no pet.) A decision that is not supported by substantial evidence is deemed arbitrary and capricious. Id. (Citing Weslaco Fed'n of Teachers v. Tex. Educ. Agency, 27 S.W.3d 258, 266 (Tex. App.-Austin 2000, no pet.) (citing Pub. Util. Comm'n v. Gulf States Utils. Co., 809 S.W.2d 201, 211 (Tex. 1991)). The Commissioner has recently held in Burton & Shepard v Killen ISD the failure of the Board to specify each campus, departments, subjects, or teaching fields as separate employment areas recommended for RIF it was not following its own policy. Burton v. Killeen Independent School District, Docket No. 053-R2-0511 (Comm’r Educ. 2011). See also Sheppard v. Killeen Independent School District, Docket No. 052-R2-0511 (Comm’r Educ. 2011). Thus, actions taken by the Board to non-renew term contract were deemed arbitrary and capricious. Id.

20. In the final analysis, looking at the entire record before me, the actions of the Petitioner are not arbitrary and capricious. First, the Petitioner specified each campus, departments, subjects, or teaching fields as separate employment areas recommended for RIF. Second, the Petitioner took an extra step to ensure that its policy would be followed and implemented properly. As Ann Best testified, this step involved a team comprised of a human resource generalist and a budget analyst would assist and review each principal’s determination for compliance with the policy. (Luper case RR 248) The last step of Petitioner’s DFF Local policy was the consideration of the employees affected by RIF for other available positions. Here, 4 the Petitioner provided resources and tool kits to aid displaced teachers in finding a new position. (Luper case RR 286-287) To the Respondents credit, she was proactive in looking for work even though she did not know about the all of the resources provided to displaced workers and received assistance in to find other openings within the district.

21. As I have noted in the Luper Case in which Ann Best testified before me and whose record is part of this record as P Ex. 10, the Petitioner’s actions could be deemed as contrary to DFF Local policy. Specifically, the Petitioner actions as it relates to consideration for available positions. The policy is unclear as to whether internal candidates are to receive preferential treatment in regard to external applicants. Ann Best testified the Board had approved a contract with Teach for America to make available or offer up to 100 new jobs to their organizations external candidates. (Luper Case RR 267-268) Further Ms. Best testified these candidates had an opportunity to compete for positions in the core educational academic areas. (Luper Case RR 268) The Petitioner’s decision to place external candidates in the same position or as internal candidates. As applied here, the Respondent must compete with external applicants for the same positions because of a reduction in force. This doesn’t seem to follow the spirit of consideration for other available positions in the DFF Local policy section. There is insufficient evidence in the record to decide the Petitioner’s decision was arbitrary and capricious. First, the Petitioner did provide and made available to the employees affected by the RIF additional resources and tools. Second, the Respondent testified to being called by “HR” about specific vacancies in the district. (Luper Case RR 328 329) Third, there are 724 internal employees who were affected by the RIF who are being considered for 185 available positions. Fourth, nothing in the record indicates, the Teach for America’s candidates were considered for positions in which the Respondent was qualified for. As with the Luper Case, there is no evidence to support a finding the Petitioner’s actions were arbitrary and capricious.

Conclusions of Law After due consideration of the record, matters officially noticed, and the foregoing capacity, in my capacity as Independent Hearing Examiner, I make the following Conclusions of Law:

22. The Hearing Examiner has jurisdiction of this subject matter pursuant to Chapter 21, Subchapter F, §21.251 of the Texas Education Code;

23. Respondent, is a “teacher” as defined in Sub-chapter E, §21. 201 of the Texas Education Code;

5 24. Respondent, was employed by Houston Independent School District pursuant to a term contract as defined in Sub-chapter E, §21.201 of the Texas Education Code;

25. Petitioner proposed the nonrenewal of Respondent’s one year term contract pursuant to the authority in Sub-chapter E, §21.206 (a) of the Texas Education Code and Board policy DFF (Local) DFBB (Local);

26. Section 12 of Respondent’s one year contract provides that renewal or nonrenewal will be in accordance with Board Policies, ARs and state law (Chapter 21, Subchapter E of the Texas Education Code);

27. Section 13 of Respondent’s term contract provides that “This contract shall not grant or create any contractual or other expectancy of continued employment or claim of entitlement to employment beyond the term of this contract.

28. Sub-Chapter E, Section 21.206(a) provides that “Not later than the 45th day before the last day of instruction in a school year, the board of trustees shall notify in writing each teacher whose contract is about to expire whether the board proposes to renew or not renew the contract;

29. Board Policy DFF (LOCAL) provides that “A reduction in force may take place when the Board determines that financial exigency exists or the Superintendent determines that a reorganization or program change is required. In either case, this may involve the discharge or nonrenewal of one or more employees. Such determination constitutes sufficient cause for discharge or nonrenewal in accordance with appropriate policies and procedures.”

30. Board Policy DFF (LOCAL) provides that “Once the Superintendent has identified the appropriate employees in the affected area(s), those employee shall be considered for other available positions for which they are qualified up to the date of the hearing requested in accordance with the provisions below. Assignments to new jobs shall be based on matching skill sets”

Recommendation After due consideration of the record, matters officially noticed, and the foregoing Findings and Conclusions of Law, in my capacity as Independent Hearing Examiner, it is hereby determined that:

PETITIONER’S POLICIES SUPPORTING A REDUCTION IN FORCE WERE PROPERLY APPLIED AS THE BASIS FOR THE NONRENEWAL OF RESPONDENT’S ONE YEAR TERM CONTRACT PURSUANT TERMS OF THE CONTRACT, CHAPTER 21, SUBCHAPTER E OF THE TEXAS EDUCATION CODE AND BOARD POLICIES DFF(LOCAL) AND DFBB (LOCAL).

PETITIONER’S RECOMMENDATION OF NON-RENEWAL OF THE RESPONDENT’S ONE YEAR TERM CONTRACT WAS NOT ARBITRARY OR CAPRICIOUS. 6 RECOMMENDED that the board of trustees of the Houston Independent School District adopt the foregoing Findings of Fact and Conclusions of Law and enter an order consistent therewith.

SIGNED AND ISSUED this 15 day of August, 2011.

_ __ Allecia Lindsey Pottinger INDEPENDENT HEARING EXAMINER