Yesterday we talked about Judson ISD v. Ruiz, the case where the district terminated the employment of a counselor for failing to report suspected abuse or neglect.  One of the important aspects of that case was the school board’s decision to overrule the recommendation of the hearing examiner.  That is not easily done, but in this case it was done and done properly according to the Court of Appeals.

After hearing the evidence, the hearing examiner concluded that Ms. Ruiz violated board policy by failing to report about the inappropriate text messages her daughter, a student in the district, had received from a district employee.  Despite that conclusion, the hearing examiner recommended that Ms. Ruiz not lose her job.  In the view of the hearing examiner, this violation of board policy did not amount to “good cause” sufficient to fire the employee.  This was largely based on the fact that another Judson employee, who also knew about the text messages and failed to report them, was not terminated.  The hearing officer concluded that the difference in the way the two employees were treated was “so vastly different and without reasonable grounds or adequate consideration, that it rises to the level of being arbitrary and capricious.”  The hearing examiner characterized this as a “finding of fact.”

The school board thought it was more accurately described as a “conclusion of law.”  The distinction is important.  Determining that two employees have been treated differently is a “finding of fact.” But drawing the inference that this disparity “rises to the level of being arbitrary and capricious” is a conclusion of law that ultimately decides the case.  Thus the board asserted its authority to change a “conclusion of law.”  After considering the case as required under the Education Code, the board inserted a “not” into the crucial ruling.  Thus it read that the difference in the treatment of the two employees was “not” so vastly different as to be arbitrary and capricious.  After all, the Education Code says that the board can reject or change a conclusion of law, “including a determination regarding good cause for…termination.”  T.E.C. 21.259(b)(1).

It’s almost impossible for a school board to override the “findings of fact” made by the hearing examiner. But changes to the “conclusions of law” can be done if the board follows the procedure laid out in the Education Code.  That’s what happened here, and the board’s decision was ultimately affirmed by both the Commissioner and the Court of Civil Appeals.  The case is Judson ISD v. Ruiz decided on March 31, 2015.

DAWG BONE: CHANGING A “CONCLUSION OF LAW” CAN BE DONE, BUT PROCEED CAREFULLY AND WITH LEGAL ADVICE.