Recommendation of Certified Hearing Examiner

TEA DOCKET NO. 311-LH-0511

HOUSTON INDEPENDENT § BEFORE THE INDEPENDENT SCHOOL DISTRICT, § HEARING EXAMINER Petitioner, § § ROBERT J. BARRINGER v. § § MR. LANCE EVANS, § FOR THE Respondent. § TEXAS EDUCATION AGENCY

RECOMMENDATION OF CERTIFIED HEARING EXAMINER

Mr. Lance Evans requested the assignment of a independent hearing examiner under Chapter 21 of the Texas Education Code and Houston Independent School Districts

(“HISD” or the “District”) Board Policy for the purpose of conducting a hearing concerning the proposed nonrenewal of Mr. Lance Evans’ term contract as a school teacher as part of a Reduction in Force (“RIF”).

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 July 27, 2011 at the Houston Independent School District Hattie Mae White

Educational Support Center in Houston, Texas.

Mr. Lance Evans was a Pro Se Respondent and after proper notice and accommodations failed to appear for the Hearing.

HISD was represented by Mr. Adam D. Courtin, Attorney at Law, of Rogers,

Morris & Grover, LLP. Ms. Karen Jackson, Principal of Cornelius Elementary, appeared on behalf of HISD.

Recommendation of the Independent Hearing Examiner, Robert Barringer HISD v. Mr. Lance Evans TEA DOCKET NO. 311-LH-0511 Appearing as witnesses in the hearing include: Ms. Karen Jackson.

Robert Barringer, Attorney at Law, is an independent hearing examiner appointed by the Texas Education Agency (“TEA”) to hear this matter and submit this

Recommendation.

At issue is: 1) whether HISD was under a budget crisis that resulted in a program change necessitating a RIF, 2) whether HISD properly followed the procedures in the

HISD’s RIF policy, DFF(local), 3) whether Cornelius Elementary area and campus were approved by HISD’s Board as being subject to the RIF, 4) whether the principal of

Cornelius Elementary properly applied the RIF criteria under Policy DFF(Local) to select

Mr. Evan’s position for elimination, 5) whether HISD’s proposal for nonrenewal of the term contract of Mr. Lance Evans was part of HISD’s RIF.

FINDINGS OF FACT

After due consideration of the evidence and matters officially noticed in my capacity as Hearing Examiner, I make the following Findings of Fact.

1. The Petitioner sent official notice of the proposal for nonrenewal of

Respondent’s one-year term contract in compliance with Section 21.206(a) of the Texas

Education Code, HISD Board Policy Sections DFBB (Legal and Local) by letter dated

April 8, 2011 and received by Respondent via hand delivery on April 18, 2011. (Pet. Exh

2. The notice of nonrenewal letter consists of one reason for proposed nonrenewal as set forth in Board Policy DFBB(Local):

Recommendation of the Independent Hearing Examiner, Robert Barringer HISD v. Mr. Lance Evans TEA DOCKET NO. 311-LH-0511 2 (9). Reduction in force because of financial exigency or program change

[See DFF].

3. Respondent timely filed his notice of appeal on May 3, 2011 pursuant to

Section 21.251 et. Seq. of Texas Education Code, and HISD Board Policies DFBB

(Legal), DFBB (Local), DFD (Legal), and DFD(Local).

4. The parties agreed to and filed a waiver to extend the deadline for issuance of the Hearing Examiner’s recommendation by 45 days, pursuant to the Texas Education

Code section 21.257.

5. A hearing on this matter was held on July 27, 2011. The hearing date was originally scheduled for July 26, 2011 by agreement of the parties. (Hearing Trans. at p.

7). Mr. Evans requested that the hearing be rescheduled for July 27, 2011, and the

Hearing Examiner and HISD agreed to this request. (Id.). Mr. Evans contacted the

Hearing Examiner and HISD’s counsel on the morning of July 27, 2011 to inform them that he was out of town and would not be able to attend the hearing. (Id.). The Hearing

Examiner spoke with Mr. Evans and explained that the hearing would be held even if he was not present; the hearing was held in his absence. (Id. at pp. 7-8).

6. During the hearing, the District presented evidence of the District’s 2011

RIF to support the reason for nonrenewal listed in Mr. Evans’ notice letter. (See generally Hearing Trans. and Pet. Exhs. 1-9 (including subparts)).

Recommendation of the Independent Hearing Examiner, Robert Barringer HISD v. Mr. Lance Evans TEA DOCKET NO. 311-LH-0511 3 7. Because Mr. Evans chose not to attend the hearing and did not submit evidence in advance of the hearing, no evidence was admitted into the record on Mr.

Evans’ behalf. (Id.).

8. The Texas Education Code provides that an independent school district’s board of trustees may delegate its authority to the superintendent and principals. (See Tex. Educ. Code §§

11.051(a)(1)-(2), .201(d), .202(b)).

9. The Texas Education Code provides that an independent school district is governed by a board of trustees that shall: (1) oversee the management of the district; and

(2) ensure that the superintendent implements and monitors plans, procedures, programs, and systems to achieve appropriate, clearly defined, and desired results in the major areas of district operations. (Tex. Educ. Code § 11.051(a)(1)-(2)).

10. The Texas Education Code designates the duties of a superintendent to include, in part, the following:

(1) assuming administrative responsibility and leadership for the planning, organization, operation, supervision, and evaluation of the education programs, services, and facilities of the district and for the annual performance appraisal of the district’s staff; (2) except as provided by Section 11.202, assuming administrative authority and responsibility for the assignment, supervision, and evaluation of all personnel of the district other than the superintendent; (4) initiating the termination or suspension of an employee or the nonrenewal of an employee’s term contract; (5) managing the day-to-day operations of the district as its administrative manager, including implementing and monitoring plans, procedures, programs, and systems to achieve clearly defined and desired results in major areas of district operations;

Recommendation of the Independent Hearing Examiner, Robert Barringer HISD v. Mr. Lance Evans TEA DOCKET NO. 311-LH-0511 4 (6) preparing and submitting to the board of trustees a proposed budget as provided by Section 44.002 and rules adopted under that section, and administering the budget; (7) preparing recommendations for policies to be adopted by the board of trustees and overseeing the implementation of adopted policies; (8) developing or causing to be developed appropriate administrative regulations to implement policies established by the board of trustees; (9) providing leadership for the attainment and, if necessary, improvement of student performance in the district based on the indicators adopted under Sections 39.053 and 39.301 and other indicators adopted by the commissioner or the district’s board of trustees; (10) organizing the district’s central administration; (11) consulting with the district-level committee as required under Section 11.252(f); (14) providing joint leadership with the board of trustees to ensure that the responsibilities of the board and superintendent team are carried out; and (15) performing any other duties assigned by action of the board of trustees.

(Tex. Educ. Code § 11.201(d)).

11. The Texas Education Code requires principals to:

(1) except as provided by Subsection (d), approve all teacher and staff appointments for that principal’s campus from a pool of applicants selected by the district or of applicants who meet the hiring requirements established by the district, based on criteria developed by the principal after informal consultation with the faculty; (2) set specific education objectives for the principal’s campus, through the planning process under Section 11.253; (3) develop budgets for the principal’s campus; (4) assume the administrative responsibility and instructional leadership, under the supervision of the superintendent, for discipline at the campus; (5) assign, evaluate, and promote personnel assigned to the campus;

Recommendation of the Independent Hearing Examiner, Robert Barringer HISD v. Mr. Lance Evans TEA DOCKET NO. 311-LH-0511 5 (6) recommend to the superintendent the termination or suspension of an employee assigned to the campus or the nonrenewal of the term contract of an employee assigned to the campus; and (7) perform other duties assigned by the superintendent pursuant to the policy of the board of trustees.

(Tex. Educ. Code § 11.202(b)).

12. Ms. Karen Jackson (“Ms. Jackson”) has been an HISD employee for thirty years, and is and has been the principal of HISD’s Cornelius Elementary School (“CES”) for thirteen years. (Hearing Trans. at p. 11).

13. Individual HISD campus principals are responsible for operating their campuses with a balanced budget. (Hearing Trans. at p. 15). Individual HISD campuses, including CES, receive budget funding on an allocation based on student enrollment as a

“per unit allocation” (“PUA”). (Id. at pp. 15-16). If the PUA funding is decreased, then the operational budget for a campus will decrease. (See id.).

14. Mr. Evans was employed by the District under a one-year term contract for the 2010-2011 school year. (Hearing Trans. at p. 13; Pet. Exh. 2).

15. Mr. Evans is a teacher who was assigned to a Physical Education position,

Job Code 000017, at CES. (Hearing Trans. at pp. 12; Pet. Exh. 4 at p. 2, line 12). Mr.

Evans was one of two Physical Education teachers at CES. (Hearing Trans. at p. 31).

16. The second Physical Education teacher at CES was Orlando Penaloza.

(Hearing Trans. at p. 31). Prior to teaching Physical Education, Penaloza was assigned to a bilingual teacher position, Job Code 000084. (Id.). Through an administrative error,

Recommendation of the Independent Hearing Examiner, Robert Barringer HISD v. Mr. Lance Evans TEA DOCKET NO. 311-LH-0511 6 Penaloza’s Job Code was not changed to the Physical Education Job Code 000017. (Id. at pp. 31-33).

2011 RIF at Cornelius Elementary School

17. The State of Texas experienced a budget shortfall which resulted in statewide cuts to public education. (Pet. Exh. 1-F, Agenda Item H-3 of the HISD Board of Education meeting of March 10, 2011).

18. In the spring of 2011, the Superintendent of HISD, Terry Grier, determined the need for a program change due to anticipated budgetary cuts. (Pet. Exh. 1-F at p. 1

¶ 1 (“In accordance with board policy DFF(LOCAL), the superintendent has determined that reorganization and/or program change is required to meet the needs of students on each campus and department.”); see Hearing Trans. at p. 18). No evidence demonstrates that the Board declared a financial exigency. (Hearing Trans. at p. 18).

19. A program change is one of the reasons listed in HISD Board Policy DFF

(Local) which allows the implementation of a RIF. (Pet. Exh. 1-A, HISD Board Policy

DFF (Local), p. 2 “General Grounds”)

20. Policy DFF (Local) states that the Superintendent’s determination that a program change is required constitutes cause for nonrenewal of contracts held by employees within affected employment areas. (Id.; see Pet. Exh. 1-B, HISD Board

Policy DFBB (Local), p. 1 ¶ 9 “Reasons”).

21. In accordance with Policy DFF (Local) the Superintendent has the authority to determine that a program change requires a RIF. (Pet. Exh. 1-A, p. 2 “General

Recommendation of the Independent Hearing Examiner, Robert Barringer HISD v. Mr. Lance Evans TEA DOCKET NO. 311-LH-0511 7 Grounds”). Policy DFF (Local) does not require the Board to approve or ratify the

Superintendent’s determination that a program change is required. (Id.).

22. Policy DFF (Local) only applies to RIF of probationary contracts during the contract period, term contracts during the contract period, and term contracts at the end of the contract period. (Id. at p. 1 “Applicability”). Reductions in force authorized by Policy DFF (Local) do not apply to continuing contracts. (Id. at p. 1 “Exclusions”).

23. Under Policy DFF (Local), a program change is defined as “change in curriculum objectives, a modification or reorganization of staffing patterns on a particular campus or district wide, a redirection of financial resources to meet the educational needs of the students, a lack of student response to particular course offerings, legislative revisions to programs, a reorganization, or a consolidations of two or more individual schools, administrative districts or departments.” (Pet. Exhs. 1-A, 1-F)

24. Board Policy DFF (Local) requires that employment areas be identified by the HISD Board of Education that may be affected by a RIF. (Pet. Exhs. 1-A, 1-F).

25. On March 10, 2011, in accordance with Board Policy DFF (Local), the

HISD Board of Education selected and approved specific campuses and individual employment areas that could be affected by the program change. (Pet. Exh. 1-F at pp. 1-

2, Addendum A; Pet. Exh. 1-I, Approved Minutes of the Regular Meeting of the HISD

Board of Education, March 10, 2011 at pp. 1, 10-11).

26. The HISD Board of Education approved the March 10, 2011 agenda item

H-3 which stated “The following employment areas are recommended for a RIF on

Recommendation of the Independent Hearing Examiner, Robert Barringer HISD v. Mr. Lance Evans TEA DOCKET NO. 311-LH-0511 8 elementary and K-8 campuses. Each elementary or K-8 campus may consider the identified ‘employment area(s)’ as needed.” (Pet. Exh. 1-F at p. 1).

27. CES was a campus selected and approved on March 10, 2011 for the RIF.

(Pet. Exh. 1-F at Addendum A; Pet. Exh. 10 at pp. 1, 10-11). The Physical Education employment area at the elementary school level was selected and approved on March 10,

2011 for the RIF. (Pet. Exh. 1-F at pp. 1-2; Pet. Exh. 10 at pp. 1, 10-11). Ms. Jackson received and reviewed a list of affected employment areas to consider for elimination.

(Hearing Trans. at p. 20).

28. Policy DFF (Local) permits employees within affected employment areas to be recommended for nonrenewal based solely on a job code when their job code is selected for elimination on the campus and all individuals within that job code are selected for nonrenewal. (Pet. Exh. 1-F at p. 3 “Criteria for Decision”). In such an instance, it is not necessary to sequentially apply other criteria set forth in Policy DFF

(Local) that would require comparing the performance, seniority, and professional background of multiple employees within the same job code at a campus, as needed.

(Hearing Trans. at pp. 24-25, 28-29, 38, 47-48; Pet. Exh. 1-F at p. 3; Pet. Exh. 5-A at p. 3).

29. Principals on a given campus have discretion in how to select a job code when applying the sequential criteria found in Policy DFF (Local). (Hearing Trans. at p. 47).

Recommendation of the Independent Hearing Examiner, Robert Barringer HISD v. Mr. Lance Evans TEA DOCKET NO. 311-LH-0511 9 30. In an effort to balance their budgets as part of the RIF, Principals had the discretion to select employment areas and positions for elimination, but did not have discretion to apply the four criteria at Policy DFF (Local) out of order. (Hearing Trans. at pp. 47-48).

31. Per Policy DFBB (Local), the Superintendent bases recommendations for nonrenewal on the initial recommendations of campus-level administrators. (Pet. Exh.

1-B, p. 3 “Recommendations from Administration”). The final decision on the administrative recommendation to the Board on the nonrenewal of employee contracts rests with the Superintendent. (Id.).

32. Ms. Jackson was trained during the spring of 2011 regarding the application of the RIF Policy DFF (Local) to her campus so she could make a recommendations to the Superintendent, via District administrators, regarding positions to eliminate and the nonrenewal of contracts held by teachers in those positions. (Hearing Trans. at pp. 25-30,

48-49). Training materials that she received and reviewed included the “Budget

Reduction Guide for End of 2010-2011 School Year,” that referred to Policy DFF (Local) and provided instruction on how to apply the four criteria found at Policy DFF (Local), as well as the materials discussed in a March 2, 2011 “Budget Reductions: Principal

Training” presentation. (Hearing Trans. at pp. 25-30 (citing to Pet. Exh. 5-A, Budget

Reduction Guide), pp. 48-49 (citing to Pet. Exh. 5-C, presentation)).

33. The PUA funding to CES for the 2011-2012 school year was decreased, resulting in a budget reduction of approximately two hundred fifty thousand dollars

Recommendation of the Independent Hearing Examiner, Robert Barringer HISD v. Mr. Lance Evans TEA DOCKET NO. 311-LH-0511 10 ($250,000), which roughly equaled the salaries of five funded teaching positions.

(Hearing Trans. at pp. 16-17, 26-27).

34. Ms. Jackson determined that her campus’ needs would be best served by eliminating multiple positions on the CES campus—including Physical Education.

(Hearing Trans. at pp. 33-38, 47). The only two Physical Education positions on the CES campus were selected for elimination because the responsibilities associated with those positions could be eliminated or assigned to other teachers already employed at the campus. (Id.).

35. Because Ms. Jackson determined that both Physical Education positions on the CES campus should be eliminated, Ms. Jackson was not required to and did not sequentially apply the additional Policy DFF (Local) criteria of performance, seniority, and professional background. (Hearing Trans. at pp. 24-25, 28-29, 38).

36. Ms. Jackson’s recommendations to eliminate positions and recommend employee contracts for nonrenewal were reviewed by an HISD School Improvement

Officer, and HISD’s human resources and legal teams. (Hearing Trans. at pp. 30, 49).

37. HISD Board Policy does not mandate that administrators conduct a conference for the record with an employee whose contract will be recommended for proposed nonrenewal; however, HISD principals were asked to conduct such conferences. (Pet. Exhs. 1-A, 1-B, 5-A at p. 6).

38. On March 30, 2011, Ms. Jackson held a Conference for the Record with

Mr. Evans to discuss the elimination of Mr. Evans’ position and nonrenewal of his

Recommendation of the Independent Hearing Examiner, Robert Barringer HISD v. Mr. Lance Evans TEA DOCKET NO. 311-LH-0511 11 contract. (Hearing Trans. at pp. 36-38; Pet. Exhs. 6, 7). Ms. Jackson informed Mr.

Evans that due to budget constraints, his position was to be eliminated at the end of the

2010-2011 school year and that Ms. Jackson was recommending that the Board nonrenew his contract. (Pet. Exh. 7). Ms. Jackson further informed Mr. Evans that because of his performance, he “would remain eligible for hire within HISD.” (Id.). Ms. Jackson also explained to Mr. Evans that he lacked certifications to teach any other position at CES.

39. On March 31, 2011, Ms. Jackson recommended to Ann Best, HISD’s Chief

Human Resources Officer, that Mr. Evans’ contract be nonrenewed. (Hearing Trans. at pp. 39-40; Pet. Exh. 8).

40. At the HISD Board meeting on April 7, 2011, HISD’s Superintendent recommended to the Board that Mr. Evans’ term contract be proposed for nonrenewal.

(Pet. Exh. 1-L, [Redacted] Closed Session Agenda for the Meeting of the HISD Board of

Education, April 7, 2011, p. 4 at line 78, HISD 00089; see Pet. Exh. 1-L, p. 7 at line 165,

HISD 0093 (Orlando Penaloza)).

41. During the open session of the public meeting on April 7, 2011, HISD’s

Board of Education voted to approve the proposed nonrenewal of term contracts and other positions that were discussed in the closed (executive) session of that meeting, including Mr. Evans’ contract. (Pet. Exh. 1-K, Approved Minutes of the Regular

Meeting of the HISD Board of Education, April 7, 2010, p. 3).

Recommendation of the Independent Hearing Examiner, Robert Barringer HISD v. Mr. Lance Evans TEA DOCKET NO. 311-LH-0511 12 42. HISD provided timely written notice to Mr. Evans, notifying him of the

Board’s actions, informing him of the proposal to nonrenew his contract, and advising him of his right to request a hearing to contest the proposed action. (Pet. Exh. 9; see

Hearing Trans. at pp. 46-47 (last instructional day was June 3, 2011)).

43. The closed Physical Education positions held by Mr. Evans and Penaloza remain closed and no longer exist; therefore, no teacher can be hired into those positions.

44. Ms. Jackson attempted to place Mr. Evans into another position at CES, but no teaching vacancies existed on the CES campus for which Mr. Evans was certified to teach. (Hearing Trans. at p. 37; see Pet. Exh. 3 (Mr. Evans’ certifications)). If a position at CES were to become available for which Mr. Evans was qualified and certified to teach, Ms. Jackson would consider hiring Mr. Evans into that position. (Hearing Trans. at p. 39). HISD considered Mr. Evans for available positions. (Id. at pp. 37-39). HISD provided multiple opportunities to employees subject to the RIF to find other employment within the District and to improve their opportunities for finding a job. (See

Pet. Exh. 5-B).

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

Recommendation of the Independent Hearing Examiner, Robert Barringer HISD v. Mr. Lance Evans TEA DOCKET NO. 311-LH-0511 13 CONCLUSIONS OF LAW

1. The evidentiary hearing held on July 27, 2011 fully afforded Mr. Evans all due process required under the United States Constitution, the Texas Constitution, and the Texas Education Code. That Mr. Evans chose to not attend the hearing, of which he had adequate notice, does not affect this conclusion of law.

46. According to the Texas Education Code § 21.256(h), the District bears the burden of proof by a preponderance of the evidence.

47. Under Texas law in order to nonrenew a teacher’s contract, the District does not have to satisfy the more onerous good cause threshold, but only the existence of one violation of a pre-established reason for nonrenewal. Kinnard v. Morgan I.S.D.,

Docket No. 177-R1-699 (Comm’r Educ. 1999); Kirby v. College Station I.S.D., Docket

No. 109-R1-598 (Comm’r Educ. 1998).

48. The District proposed Mr. Evans’ nonrenewal based on one of the pre- established reasons listed in Board Policy DFBB (Local).

49. The District has the burden of proving only one reason listed in DFBB

(Local) by a preponderance of the evidence to sustain the nonrenewal of Mr. Evans’ contract.

50. The District proved by a preponderance of the evidence that Mr. Evans received appropriate notice of the proposal for nonrenewal more than 45 days before the last day of instruction for 2010-2011.

Recommendation of the Independent Hearing Examiner, Robert Barringer HISD v. Mr. Lance Evans TEA DOCKET NO. 311-LH-0511 14 51. The District has established by a preponderance of the evidence the existence of one of the nonrenewal reasons listed in Board Policy DFBB (Local), and therefore has met its burden to nonrenew Mr. Evans’ term contract and employment with the District.

52. The District proved by a preponderance of the evidence Reason No. 9 in

Policy DFBB (Local) for the following reasons:

(1) The Superintendent of HISD determined the need for a program change reduction in force in March 2011;

(2) The HISD Board of Education, in response to the Superintendent’s determination of the need for a program change, approved the employment area of Physical Education at Cornelius Elementary School as an area that could be affected by the reduction in force;

(3) Ms. Jackson properly applied, in a non-arbitrary manner, the criteria listed in Board Policy DFF (Local) to the employment area of Physical Education at Cornelius Elementary School;

(4) In accordance with DFF (Local), Ms. Jackson recommended that the Physical Education position held by Mr. Evans at Cornelius Elementary School be eliminated.

53. The District’s Board of Education properly delegated authority to the superintendent and principals to manage individual school budgets and implement the

54. By voting to approve for inclusion in the RIF specific affected employment areas (including Mr. Evans’), individual campuses (including Mr. Evans’), and the nonrenewal of individual teaching contracts (including Mr. Evans’), the District’s Board

Recommendation of the Independent Hearing Examiner, Robert Barringer HISD v. Mr. Lance Evans TEA DOCKET NO. 311-LH-0511 15 of Education approved the Superintendent’s and principals’ recommendations related to the implementation of the RIF pursuant to Policy DFF (Local).

55. The District properly applied Policy DFF (Local) when it determined that

Mr. Evans should be proposed for nonrenewal due to a program change requiring a RIF.

56. HISD has proven, by a preponderance of the evidence, that reason number nine (9) in Policy DFBB (Local) formed the basis for the proposed nonrenewal of Mr.

Evans’ contract.

57. HISD has met all procedural requirements under Policy DFF (Local) and that Mr. Evans’ contract with the District should be nonrenewed.

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

RECOMMENDATION

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

Findings and Conclusions of Law, in my capacity as Certified Hearings Examiner it is hereby

RECOMMENDED that the Board of Trustees of Houston Independent School District adopt the foregoing Findings of Fact and Conclusions of Law and enter an order consistent therewith.

SIGNED AND ISSUED this ______day of ______, 20____.

Robert J. Barringer, Certified Hearing Examiner

Recommendation of the Independent Hearing Examiner, Robert Barringer HISD v. Mr. Lance Evans TEA DOCKET NO. 311-LH-0511 16