Tag Archives: Termination

Dawg Bones

How do you fire a teacher on a continuing contract?

Some readers may not even be familiar with the term “continuing contract.” There are not many districts that still offer this type of arrangement.  However, the Education Code allows districts to choose to employ teachers on a continuing contract, which is the same as what other states call “teacher tenure.” Some districts in Texas still employ teachers this way.  North East ISD is one.

Ms. Riou was a ten-year veteran in the North East ISD with a continuing contract that automatically renewed each year.  A teacher on a continuing contract can only be terminated “for good cause as determined by the board of trustees, good cause being the failure to meet the accepted standards of conduct for the profession as generally recognized and applied in similarly situated school districts in this state.”  T.E.C. 21.156(a).

North East proposed the termination of Ms. Riou’s contract and she requested a hearing before an independent hearing examiner.  Thus the district had the burden of proving that Ms. Riou failed to meet the standards that apply in similar districts. Normally, districts do this through the testimony of a superintendent or other expert who can explain what the standards in “similarly situated districts” are, and how this person failed to meet those standards. However, North East produced no such testimony.

Hmmm.  That would normally mean “teacher wins.” But there is an exception.  The teacher loses if the district shows “good cause per se.” This applies when “a teacher’s actions are so extreme that there is no need to provide evidence of the standards in other districts because there can be no reasonable doubt that other similarly situated school districts would terminate teachers for the same behavior.”

When you read words like “so extreme” and “no reasonable doubt” you may think that “good cause per se” applies to things like child abuse, sexual misconduct, smacking the principal up the side of the head and stuff like that. No doubt it does.  But in this case the Commissioner held that it also applies when a teacher fails to perform benchmark testing of her kindergarten students; fails to follow the required scope and sequence of instruction; and fails to enter grades electronically.  That’s what Ms. Riou was charged with.  First the hearing examiner, then the school board, and finally the Commissioner concluded that her failures met the standard for “good cause per se.”

The Commissioner laid out a three-part test for determining if the teacher’s behavior amounts to “good cause per se.”  The district has to show that 1) the rule that was violated was a reasonable rule; 2) the evidence of a violation of the rules was clear; and 3) this had an adverse effect on the school’s business.  North East had evidence to prove all three. Case closed.  Continuing contract ceases to continue.

The case is Riou v. North East ISD decided by Commissioner Morath on March 31, 2016, T.E.A. Docket No. 016-R2—02-2016.

DAWG BONE: WHO SAYS YOU CAN’T FIRE A TEACHER ON A CONTINUING CONTRACT?

File this one under:  TERMINATION

TOMORROW: TOOLBOX TUESDAY TAKES A LOOK AT THE CODE OF CONDUCT!

Dawg Bones

HOW THE BOARD CAN OVERRULE THE HEARING EXAMINER’S RECOMMENDATION

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.

 

 

 

Dawg Bones

CAN A COUNSELOR BE FIRED FOR NOT REPORTING POSSIBLE CHILD ABUSE? WHAT IF THE CHILD IS HER OWN?

Judson ISD proposed the termination of Maria Ruiz, a counselor, based on Ms. Ruiz’s failure to report suspected child abuse.

The independent hearing examiner assigned to hear Ms. Ruiz’s case, recommended that she not be fired.  But the board fired her anyway.

So Ms. Ruiz appealed to the Commissioner. The Commissioner affirmed the board’s decision to terminate Mr. Ruiz’s employment.

So Ms. Ruiz took her appeal to state court in Bexar County.  There, she won.  The judge ordered that she be reinstated with back pay and benefits.

So the district appealed to the 4th Court of Appeals.  That court has now ruled in favor of the district.

What makes the case particularly interesting is that the child in question was Ms. Ruiz’s daughter, a freshman at Judson High school.  The suspected abuser, Carlos Reyes, was the girl’s mariachi instructor, who was also a paraprofessional and substitute teacher employed by the district.  When Ms. Ruiz came across sexually explicit and inappropriate text messages between her daughter and Mr. Reyes, she and her husband immediately met with Mr. Reyes and his wife and insisted that there be no further communication with their daughter, unless it was specifically about music.

That is a step that most parents would probably take.  But the problem for Ms. Ruiz was that she was not just a parent in this situation. She was also a school employee, subject to policies and laws pertaining to the reporting of suspected abuse. She did not report Mr. Reyes’s conduct to school officials, the police or the child abuse authorities.  About six weeks later, another counselor found out about these text messages, and she reported it to school administrators. They reported to Child Protective Services, and investigations ensued.  Mr. Reyes promptly resigned. Ms. Ruiz did not.

The initial hearing examiner in this case concluded that Ms. Ruiz “did not believe abuse or neglect had occurred” and therefore “did not believe it necessary to contact the police regarding the incident.” But as this case points out, that subjective belief about whether or not “abuse or neglect” has occurred is not the whole story.  The standard is that we must report if we have “cause to believe” that “abuse or neglect has occurred or may occur.” The court’s opinion emphasizes the concern about future abuse: “Thus a finding that Ruiz did not subjectively believe abuse had occurred in the past does not contradict and is not inconsistent with Ruiz having had cause to believe abuse may occur in the future.”

The fact that the child in this case was the counselor’s daughter does not figure in the decision. Child abuse is child abuse, regardless of whose child it is.  The law requires people who have “cause to believe” that abuse or neglect has occurred to do so.  This mandate applies to all of us, but for teachers and counselors the stakes are higher.  For them, the failure to report suspected abuse is a violation of state law, but also, grounds for termination of employment.

The case is Judson ISD v. Ruiz, decided by the Texas Court of Civil Appeals in San Antonio on March 31, 2015.  We will have more to say about this case tomorrow.

DAWG BONE: FAILURE TO REPORT SUSPECTED ABUSE OR NEGLECT CAN COST YOUR JOB.