Is using the infamous “F Word” a firing offense?

The independent hearing examiner who heard all the evidence did not think that a teacher using the F word to disparage a student gave the district “good cause” to terminate the teacher’s contract.  The school board disagreed with that.  The board changed the hearing examiner’s conclusion of law.  The change was pretty simple—they changed it from “this is not good cause” to “this is good cause.”  The legal issue then was: can the board do that?

Commissioner Morath concluded that the board can do that.  The board cannot change a “finding of fact” but it can change a “conclusion of law.”  In fact, the Texas legislature specifically authorized boards to do this in 2011.  Thus the board must accept the “facts” as determined by the hearing examiner, but the board might found those facts to be more serious than the hearing examiner did.

In this case, the facts were that the teacher had used profanity, including the F-word, to disparage a student, after receiving a written memorandum that warned the teacher that this was not OK and might lead to termination.  The board changed the conclusion of law to say “this is good cause.” The Commissioner affirmed. The case is Larberg v. Bellville ISD, decided by Commissioner Morath on November 29, 2016. T.E.A. Docket No. 005-R2-10-2016.


 File this one under: TEACHER TERMINATION

Tomorrow: It’s Toolbox Tuesday!!

Teacher violates school policy. Is fired. Commissioner overturns the decision

If a teacher violates school policy pertaining to the use of physical force with students, the teacher can be fired….right?  That would be especially true if the teacher had been reprimanded and warned previously about the use of force with kids….right?

Apparently not. Commissioner Morath has overturned the firing of Daniel Villarreal, a teacher in Edinburg ISD.  The Commissioner concluded that the board’s action was “arbitrary and capricious” because the school board in Edinburg “did not use the standards set out in the Restatement of Torts, Second Edition or another valid standard to conclude that [Mr. Villarreal did not have an objectively reasonable belief that force was necessary.”

We’re guessing that not too many of you are up to speed on the Restatement of Torts.  No one but law students and law professors read that tome.  But it looks like we need to add Commissioner Morath to that list.  In this decision, the Commissioner points out that the Restatement is “in harmony” with Texas case law regarding the use of physical force in the school setting.  In that context, the following factors should be considered:

(a) The age, sex and condition of the child;

(b) The nature of the student’s offense or conduct, and the student’s motives;

(c) The influence of this student’s conduct on other students;

(d) Whether the force was reasonably necessary to compel obedience to a proper command; and

(e) Whether the force was disproportionate to the offense, was unnecessarily degrading, or was likely to cause serious injury.

We expect that most administrators would think that there are a couple of other relevant factors, such as: did the teacher violate our policy?  Did the teacher disregard a directive?

The Commissioner specifically addresses those factors and blows them off.  Read this carefully:

When an employee is using reasonable force, a district cannot take disciplinary action against an employee because he was directed by an administrator not to use force.  Likewise, when an employee is using reasonable force, a district cannot take disciplinary action against an employee because a policy provides that force can only be used to protect a person from physical injury.  The use of reasonable force cannot directly or indirectly be the basis for taking disciplinary action against the employee.  While school districts can normally take action against teachers for violations of policy, if a teacher’s actions are protected by the immunity for use of force under Texas Education Code 22.0512, a school district cannot take action against the teacher for violating its policy.

So the critical issue is not whether the teacher violated policy or directives. The critical issue is whether the force used was “reasonable.”

The school administration recommended the termination of this teacher. The independent hearing officer supported that recommendation. The board voted to terminate the teacher’s contract. And now the Commissioner has reversed that decision.  The case is Villarreal v. Edinburg CISD, T.E.A. Docket No. 063-R2-08-2016, decided on October 6, 2016.


 File this one under: TEACHER TERMINATION

Tomorrow: Toolbox Tuesday looks at what to do when the behavior of the student is a manifestation of disability.

The board voted to fire me while in closed session. They can’t do that….right???

A decision from the Court of Appeals in Dallas validates the termination of an assistant principal’s contract, even though the board voted to terminate the man while in closed session. This may surprise you, as it is well known that official action of the board must be taken in open session. If the board happens to take an official vote while behind closed doors, isn’t that action void?

First, a bit of background. The board in Dallas ISD voted to terminate the assistant principal’s contract based on the recommendation of an independent hearing examiner who concluded that the man used excessive force in dealing with a student.  The board considered the case in closed session, at the request of the A.P.  Attorneys representing the A.P. were present during the closed session.  Those attorneys, without objection, watched the board take its vote to terminate the contract while still in closed session.  The A.P. appealed the termination to the Commissioner, who upheld the board’s action.

Then the A.P. appealed to district court. The district court sided with the A.P.  The judge concluded that there was substantial evidence in the record to justify the termination of the man’s contract, but because the board had screwed up and done it in closed session, the action was void.

The Court of Appeals reversed that decision, thus upholding the DISD’s board action to terminate the contract.

How can that be? Taking a final vote in closed session is a clear cut violation of the Texas Open Meetings Act.  The court was well aware of that, but pointed out that this case was not a “free-standing complaint” under the Open Meetings Act, but rather, an appeal of the Commissioner’s decision. Therefore, the guiding law is the Education Code.  With regard to teacher termination and nonrenewal, the Education Code includes a sort of “no harm, no foul” principle.  It states that  a decision of the Commissioner cannot be overturned based on a procedural irregularity “unless the court determines that the irregularity or error was likely to have led to an erroneous decision by the Commissioner.”  In other words: did it make any difference?  Did taking the vote in closed session lead to the wrong result?

No. It did not. The result was proper, it was just improperly executed. Open or closed, the man was going to be terminated, and there was substantial evidence to support that decision.

The A.P.’s lawyers must have anticipated that turn of events because they were smart enough to also file a “free-standing complaint” under the Open Meetings Act.  Here, there is no “no harm no foul” standard to hide behind—you either complied with the Open Meetings Act or you didn’t.

How the court dealt with that issue is worthy of a separate Daily Dawg entry.  So we will keep you hanging on that one, but we can tell you right now that the A.P. is not going back to work in Dallas ISD. Stay tuned for details on Wednesday!

The case of Dallas ISD v. Peters was decided by the Court of Appeals for the Fifth District (Dallas) on December 14, 2015.  It can be found at 2015 WL 8732420.