Was it the 479th phone call that got him in trouble? Or the 480th?

The Court of Appeals in Austin has ruled that SBEC got it right when it called for the revocation of Erasmo Montalvo’s teaching certificate.  This case began when a college student alleged that Mr. Montalvo had sexually assaulted her while she was a student in Rio Grande City High School.  Criminal charges were filed against the man, but he was ultimately acquitted following a jury trial.

Despite the acquittal, T.E.A. sought to revoke Mr. Montalvo’s certificate, alleging that he was “unworthy to instruct or supervise the youth of this state,” and that he had violated numerous provisions in the Educator’s Code of Ethics.  After a hearing on these matters, the Administrative Law Judge concluded that the evidence against the man was insufficient to show either a Code of Ethics violation, or that he was “unworthy.”  Thus the ALJ recommended no corrective action.

SBEC disregarded that recommendation.  SBEC liked the ALJ’s fact findings, but disagreed with his conclusions.  Thus it adopted the ALJ’s fact findings, modified two “conclusions of law” and added a third. The upshot of all that action was an order revoking Mr. Montalvo’s certificate, even though there was no “fact finding” that he had violated the Code of Ethics.  SBEC found that Mr. Montalvo had “exceeded the bounds of the proper educator-student relationship and is a person unworthy to instruct or supervise the youth of this state.”

Mr. Montalvo appealed this decision to district court in Travis County, which ruled in his favor.  In fact, the court issued a permanent injunction, barring SBEC from revoking the man’s certificate until all appeals in the case were concluded.

Now the Court of Appeals has weighed in, ruling decisively in favor of SBEC and dissolving that injunction. I looked up Mr. Montalvo’s certificate on December 23rd and it was listed as “valid.” But this may change soon.

The Court of Appeals held that there was “substantial evidence” in the record to support SBEC’s decision.  In particular, the court cited testimony that supported findings of fact that:

*student athletes used a Jacuzzi in Mr. Montalvo’s home, even though they could have used one at the school;

*on one occasion, the student went to Mr. Montalvo’s home alone to use the Jacuzzi;

*Mr. Montalvo gave the student and others rub downs; the head athletic trainer testified that it was OK for a coach to rub down an athlete prior to competition, but not as a form of therapy;

*over a four-month period there were approximately 480 phone calls between Mr. Montalvo and the student, over 80 of them after 10:00 pm.

Notice that there are no fact findings of actual sexual misconduct, and remember: Mr. Montalvo was acquitted by a jury.  Mr. Montalvo argued that there were no findings of “actual wrongdoing” on his part, and that, at most, he had violated guidelines or protocols, rather than ethical standards.  But the Court of Appeals held that an educator can be deemed “unworthy” even when there is no violation of the Code of Ethics.  Key Quote:

However, Rule 249.15 provides a basis for revocation independent of any violation of the Code of Ethics, and the definition of “unworthy to instruct” includes no requirement that the educator violate any rule or policy.  Montalvo further contends that his conduct did not cross the bounds of a proper educator-student relationship because nothing “improper” or of a sexual or romantic nature occurred. But the plain language of Rule 249.15 does not require an “improper” event or actual harm, and it is the duty of the Board to protect the safety and welfare of Texas schoolchildren, which includes assessment of potential harm.

The case is SBEC v. Montalvo, decided by the Texas Court of Appeals, Third District (Austin), on November 24, 2015.  You can find it at 2015 WL 7708947.