Today’s question to the Dawg gives us the opportunity to expand on the meaning of the word “scintilla.”  One of the Commissioner decisions that is familiar to all school lawyers is the 1985 case of Hester v. Canadian ISD.  That’s the case where the Commissioner held that “when considered in a vacuum, a poor record does not constitute even a scintilla of evidence that bad coaching was responsible for that record.  Too many other factors influence a won-loss [sic] record over which the coach has no control."

The Canadian case involved the proposed nonrenewal of an assistant coach after the entire season. If the full season record is not even a “scintilla” of evidence, then we think it’s pretty clear that losing the first two games is short of the mark.

So our legal advice on this one is: CHILL.  And best of luck tonight.

DAWG BONE: “SCINTILLA” IS DEFINED AS “A MINUTE PARTICLE.”  LOSING THE FIRST TWO GAMES OF THE YEAR DOES NOT AMOUNT TO A MINUTE PARTICLE OF EVIDENCE ABOUT THE COACH.  CHILL.

File this one under: NONRENEWAL

The conventional wisdom among school district lawyers is that it’s best to win your case before it gets to a jury, especially if the plaintiff is a teacher. You just never know about juries.  But we do know that people tend to identify with the little guy.  All of us have been the employee. Not all of us have been the boss. So it’s noteworthy when a teacher vs. school district case gets to the jury and the jury sides with the district. That’s what happened in Waterman v. McKinney ISD. 

The school board proposed to non-renew Mr. Waterman’s contract due to allegations that he had behaved inappropriately with co-workers.  After hearing his appeal, the school board voted not to renew his contract.   The Commissioner affirmed this decision.

Mr. Waterman then sued in federal court, alleging that the district had violated his constitutional rights.  The court dismissed his claims that were based on the 9^th and 14^th Amendments, but the 1^st Amendment claim was presented to a jury. The jury verdict was in favor of the district and the judge entered a judgment in accord with the jury.

The 5^th Circuit affirmed the decision issuing an opinion that will not be published in the official reports. The appellate opinion deals more with procedural issues than substantive constitutional issues.  Mr. Waterman objected to the introduction of some evidence, and the exclusion of other evidence. The court found no significant error in the way the trial judge had handled the case:

This was not a case decided on sparse evidence.  Instead, the trial record is replete with evidence; much of it suggests that Waterman behaved inappropriately and made some coworkers feel uncomfortable and file complaints.

Mr. Waterman also complained that he was not allowed to amend his pleadings two days prior to trial.  The court noted that this was “nearly nine months after the amendment deadline had passed. This delay is inexcusable….”

The case was decided on March 22, 2016. We found it at 2016 WL 1127429.

DAWG BONE: WADDYAKNOW….JURIES SOMETIMES LIKE SCHOOL DISTRICTS

On January 6^th, the Daily Dawg informed you of a decision from the Commissioner’s office that approved of “liberal hearsay exceptions” when the school board conducts a nonrenewal hearing.  Manuagwu v. Edgewood ISD.  Now we have a decision from a Texas appellate court that does likewise.

The case involved the nonrenewal of a teacher based in part on allegations that he had made inappropriate remarks to some of his students.  School administrators investigated this by interviewing a number of students. They also collected statements written by the students about events that happened at school.

At the nonrenewal hearing, the district chose not to call any of the students to testify. You can understand why.  It can be particularly difficult for kids to be asked to give testimony in a formal proceeding about their teacher.  So the district chose not to go that route. Instead, the statements of the students were introduced into evidence, and the administrators testified about what the students told them.

Not surprisingly, the lawyer representing the teacher objected to all of this evidence as “hearsay.”  In effect, the district was introducing into evidence the statements of kids who were not present at the hearing. The teacher’s lawyer had no opportunity to question them.  This is the essence of what we mean by “hearsay.”  Can the school board rely on such evidence?

The Court of Appeals said that it can.  The court held that the Texas Rules of Evidence simply don’t apply to a nonrenewal hearing conducted by a school board.   That being the case, the board was free to consider the statements of the kids “to the extent that it was not arbitrary, unreasonable, or otherwise unlawful to do so.”

The court pointed out that the administrators asked open-ended questions from randomly selected students.  Furthermore, the district had no power to compel the kids to testify, whereas the teacher could have at least asked them to do so.  The court concluded that there was nothing “arbitrary, unreasonable or otherwise unlawful” here. Bottom line: the evidence was properly admitted into evidence, and it formed “substantial evidence” to support the board’s decision to nonrenew the teacher’s contract.

Keep in mind that school boards can hear a nonrenewal case themselves, or they can direct that the parties use the independent hearing examiner process.  The independent hearing examiner process does require compliance with the Texas Rules of Evidence, so the holding of this case is limited to hearings actually conducted by the school board.

The case is Los Fresnos CISD v. Vazquez, decided by the Texas Court of Appeals, 3^rd District (Austin) on December 30, 2015.

DAWG BONE: WHEN THE BOARD CONDUCTS THE NONRENEWAL HEARING, THE RULES OF EVIDENCE DO NOT APPLY. BUT THE RULES OF FAIR PLAY DO.

We can learn four lessons from a nonrenewal decision issued by former Commissioner Williams.

First, the lawyers had better be ready to jump up and shout “OBJECTION!  HEARSAY!!”  The decision tells us that evidence that could be excluded as “hearsay” is admissible, and can be relied on by the board if it was not objected to at the time it is offered into evidence.

Second, Texas administrative hearings (like nonrenewal hearings before the board) can rely on “liberal” exceptions to the usual hearsay rules.  In this case, this meant that a video statement from a student about a teacher’s wrongdoing was admitted into evidence, even though the teacher’s lawyer never had a chance to cross-examine the student.  The late, great Joe Jamail would have gone nutso over this.  The Commissioner relies on the “liberal” exceptions to the hearsay rule that can be used in administrative hearings.  The student had “disappeared” according to the Commissioner. She could not be found by the district or the police.  If the student had been located, this case may have been decided differently. But since no one could find the kid, the Commissioner held that it was OK to admit into evidence a very damning video statement given by the student that the teacher’s lawyer never had a chance to confront.

Third, teachers facing nonrenewal have the right to cross-examine adverse witnesses, but in the special circumstances of this case, the student on video was not a “witness.”  So the fact that the teacher’s lawyer never got to question her was no big deal.

Fourth, it’s not always going to be a due process violation for two lawyers from the same firm to be involved in the nonrenewal hearing—one for the administration and one for the board.  The Commissioner treats this as a hypothetical issue since teachers facing contract nonrenewal are not entitled to “due process” in the first place, there being no “property interest” at stake.

The case is Manuagwu v. Edgewood ISD, Docket No. 003-R1-09-2015, decided by the Commissioner on November 4, 2015.

DAWG BONE: TEXAS MAY NOT BE “LIBERAL” ABOUT ANYTHING ELSE, BUT WHEN IT COMES TO HEARSAY WE ARE A MATCH FOR BERNIE SANDERS.

A recent decision from the Commissioner tells us five things worthy of note with regard to the nonrenewal of an educator’s contract.

First, the board should provide a written notification of its decision if the board has conducted the hearing itself.  If the board decides the case after an independent hearing examiner makes a recommendation, a verbal announcement of its decision would be sufficient.  Here, the board conducted the hearing itself. At the conclusion of the hearing, the board voted to nonrenew the contract, and announced this publicly.  The Commissioner ruled that this verbal notice was insufficient.  The teacher’s timeline to appeal the decision to T.E.A. never started to run, because there was no written notice.

Second, teachers facing nonrenewal of contract are not entitled to “due process.” They are entitled to the procedures set out in statute, but the constitutional concept of “due process” does not apply because they are not facing a deprivation of a property interest.  Therefore, the counselor’s  complaints about procedural irregularities did not implicate “due process.”

Third, the decision implicitly reminds us that boards can set and enforce a time limit on the hearing.  Here, the counselor was unable to call two witnesses at the hearing before the board because she ran out of time. The board had given each side two hours to present its case.  The Commissioner found no fault with this.

Fourth, the standard for nonrenewal is not very high.  Here, the district gave notice of eight reasons for nonrenewal, each one pulled directly from Policy DFBB(Local).  The Commissioner notes that “a district is only required to show that substantial evidence in the local record that supports one of its pre-established reasons for nonrenewal.  Substantial evidence is not a  high burden of proof.”

Fifth, the Commissioner reminds us that remediation of deficiencies is not required: “…there is no statutory requirement that a school district must give a teacher an opportunity for remediation before nonrenewing a contract.”

Bottom line: the district followed its policy; met timelines; produced substantial evidence. The counselor’s appeal was denied. The case is Salazar v. Sinton ISD, Dkt. No. 049-R1-07-2015, decided by the Commissioner in September, 2015.

DAWG BONE: MEDIA REPORTS TO THE CONTRARY, IT IS NOT THAT HARD TO NONRENEW A TEACHER’S CONTRACT

The school board in Sinton ISD conducted a hearing to consider the possible nonrenewal of teacher Mark Kellogg. After four hours of testimony and the introduction of 500 pages of exhibits (!), the board went behind closed doors to consider the matter. A mere 20 minutes later, they came out into open session and voted to nonrenew Mr. Kellogg’s contract.

Mr. Kellogg appealed to T.E.A., arguing, among other things, that the decision was “arbitrary and capricious” because the board spent such a short time in deliberations. After all, 20 minutes is barely enough time for the board members to eat the cookies and cake that are waiting for them in closed session.

But the Commissioner ruled in favor of the district, wasting few words disposing of Mr. Kellogg’s argument: “The amount of deliberation does not show that the board’s decision was arbitrary and capricious.” Appeal denied.

This decision makes sense. If the decision had gone the other way, we would all have to try to figure out how long the board has to deliberate to get past the “arbitrary and capricious” concern. Board members would decide the case, and then sit there for an hour or so telling jokes. Not good. And the longer you are in closed session, the more likely you are to violate the Open Meetings Act. So it’s a good thing that the Commissioner was OK with the board getting its work done efficiently.

The case is Kellogg v. Sinton ISD, Dkt. No. 077-R1-07-2014. It was decided by the Commissioner on August 29, 2014.

DAWG BONES: AFTER FOUR HOURS OF TESTIMONY, YOU PROBABLY HAVE YOUR MIND MADE UP.