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.

DAWG BONE: GETTING FIRED IN CLOSED SESSION MIGHT BE LESS EMBARRASSING, BUT IT STILL HURTS.