It’s almost impossible to change the IHE’s FOFs.

I hope that headline is not too obscure.  Translation: It’s almost impossible to change the Independent Hearing Examiner’s Finding of Facts.

This is the ultimate lesson of the case we’ve been reviewing this week.  The district hired an Athletic Coordinator, reassigned her to be a teacher, and then nonrenewed her employment due to a program change.  The Commissioner overturned the nonrenewal and ordered the district to provide the former administrator/teacher with back pay and benefits, and either reinstate her or pay her a year’s salary. 

On Wednesday we explained why two of the board members should have recused themselves from hearing the case.  Yesterday we told you why Commissioner Morath ruled that the reassignment was improper.  Today we’ll try to explain why the nonrenewal was overturned. 

The proposed nonrenewal was based on a program change reduction in force (RIF), among high school business teachers. Of the teachers in that department, the Petitioner had the least seniority, and thus she was the target of the RIF.  But the problem for the district was the ruling that the reassignment was not executed properly.  That meant that the “teacher” was, in fact, not a teacher. By the terms of her contract she was still an administrator.  Key Quote:

Petitioner contends that she was improperly selected for the program change reduction in force nonrenewal because the contract at issue was her 2018-19 Athletic Coordinator administrator’s contract, not a teaching contract.  Petitioner is correct.

Rather than conducting the nonrenewal hearing itself, the school board hired an independent hearing examiner.  The hearing examiner heard the case and issued Findings of Fact, Conclusions of Law and a recommendation that the contract be renewed.  The majority of the board disagreed with the recommendation.  So the board attempted to change some of the fact findings, and to add to others.  That’s very difficult to do.  The board can change a finding of fact “only if the finding of fact is not supported by substantial evidence.”  T.E.C. 21.259(c).   That term--“substantial evidence”--is misleading. It sounds like a lot of evidence, but that’s not what it means:

Substantial evidence means “only more than a mere scintilla.” 

A “scintilla” is not a small fur-bearing mammal. It’s a tiny little bitty bit of evidence.  That’s why you never hear of “the great scintilla” or “a substantial scintilla” or a “humongous scintilla.”  No, it’s always a “mere” scintilla.  So if there is any support whatsoever in the record for the findings of fact done by the hearing examiner, the board is stuck with them.

In his decision, the Commissioner identified five FOFs that the board changed improperly. All of them were supported in the record by at least “more than a mere scintilla” of evidence, and thus they could not be added to, watered down, modified in any way or rejected.

Lessons abound here.  The authority of the superintendent to reassign has its limits.  Board members sometimes need to step aside.  An independent hearing examiner is really independent. 

The case is Lutich v. Fabens ISD, decided by Commissioner Morath on November 5, 2019.  It’s Docket No. 002-R1-09-2019.


That’s it for January!  The Dawg will observe Groundhog Day along with the Super Bowl on Sunday, and be back at it on Monday.