DOCKET NO.104-LH-0409
HOUSTON INDEPENDENT SCHOOL DISTRICT / § /

BEFORE CERTIFIED HEARING EXAMINER

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§ / TEXAS EDUCATION AGENCY
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vs. / §
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SUSAN L. MICHAEL / §
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§

RECOMMENDATION OF THE CERTIFIED HEARING EXAMINER

Houston Independent School District, Petitioner, has proposed the termination of Susan L. Michael, Respondent, under Section 11 of her three-year term contract and the Texas Education Code, Section 21.211(a)(1).

Petitioner is represented by Joseph Alan Callier, Attorney at Law, Houston, Texas.

Respondent is represented by James T. Fallon, and Stephen St. Martin, Attorneys at Law, Houston, Texas.

Findings of Fact

After due consideration of the evidence and matters officially noticed, the following Findings of Fact have been proven by a preponderance of the evidence:

  1. Respondent is employed by Petitioner as a teacher at Whittier Elementary School in Houston, Texas, pursuant to a term contract dated April 10, 2007, for a period of three years.
  1. On or about October 29, 2008, Officers Clinton and Franke received an anonymous tip regarding possible drug activity on the campus of Whittier Elementary School in Houston, Texas.
  1. On or about October 29, 2008 Respondent was arrested for allegedly possessing a controlled substance in a drug free zone, namely Whittier Elementary, a school campus.
  1. On or about October 29, 2008, Officers Clinton and Franke confiscated three rolled cigarettes, four white tablets and brownies in a clear baggy from the car and person of Respondent.
  2. Items confiscated incident to that arrest tested positive as marijuana and hydrocodone.
  1. Respondent has been charged with the criminal offense of possession of marijuana; however has not been convicted of said criminal offense.
  1. Respondent’s term contract with Petitioner states that it can be terminated for “good cause” as determined by the Board.
  1. On or about March 11, 1999, Respondent acknowledged that she received notice of Petitioner’s Drug-Free Workplace policies and requirements.
  1. A Conference for the Record was conducted on December 16, 2008 and Whittier Elementary School Principal Lueptow recommended that Respondent be terminated for violating Board policies prohibiting her from being under the influence of marijuana and/or under the influence and in the possession of a drug(hydrocodone) without a prescription while on school property.
  1. Respondent attended the conference on December 16, 2008; however, refused to sign or agree to the recommendation of Principal Lueptow.
  1. By letter dated March 23, 2009, Petitioner notified Respondent of the board’s intent to terminate her term contract. Respondent requested that the Commissioner of Education appoint a certified hearing examiner to preside over a hearing and this certified hearing examiner was appointed.
  1. The parties waived the 45-day time period for the hearing examiner to conduct the hearing and make a written recommendation as set out in section 21.257 of the Texas Education Code. The hearing before the hearing examiner was conducted on June 16, 2009.

Discussion

  1. An administrative hearing was conducted before the Hearing Examiner, Audrie Lawton,

on June 16, 2009. Petitioner was represented by Joseph Alan Callier, of Callier & Garza, LLP. And Respondent was represented by James T. Fallon and Stephen St. Martin. Petitioner presented eight (8) witnesses and eighteen (18) exhibits. Respondent presented no witnesses and one (1) exhibit.

Judicial Notice

This hearing examiner takes judicial notice of the following:

  1. On or about October 29, 2008, Respondent was a teacher at Whittier Elementary School. Respondent was under a term contract for a period of three years. (Exhibit 12).
  2. On or about March 11, 1999, Respondent acknowledged that she received notice of Petitioner’s Drug-Free Workplace policies and requirements.(Exhibit 12).
  1. Petitioner’s Board Policies DH(LOCAL), FNCF(LEGAL) and DHE(LOCAL) were policies in effect on or about October 29, 2009.(Exhibits11 and 19).
  1. Marijuana and non-prescription hydrocodone are controlled substances as defined by the Texas Healthand Safety Code, Chapter 481.

Issue 1.-Whether Good Cause Exists to Support

Petitioner’s Recommendation to Terminate Respondent’s Term Contract

  1. The first issue in this case is whether there exists good cause to support Petitioner’s recommendation to terminate Respondent’s term contract. In order to make this determination, it is necessary to determine whether on October 29, 2008, Respondent, a teacher at Whittier Elementary School, knowingly and intentionally possessed a controlled substance listed in Health and Safety Code, Chapter 481.: In, on or within 1,000 feet of any real property that is owned, rented, or leased to a school district.
  1. In their case in chief, Petitioner presented Officers Clinton and Franke to testify regarding the events that took place on October 29, 2009. Officers Clinton and Franke provided testimony that on or about October 29, 2008, in response to an anonymous tip, they arrived at Whittier Elementary School (scene). Officer Clinton observed Respondent in the parking lot throw something away before being detained for investigative questioning. After canine(Reno) based searches of Respondents vehicle (Clinton/Reno) found three hand rolled cigarettes), parking lot (Clinton/Reno found partially burnt hand rolled cigarette) and room (Clinton/Reno found brownies in plastic baggies) items found field tested positive for marijuana. In addition, while Respondent was returning from the parking lot with the officers, she retrieved a plastic baggy containing four (4) pills from her pant pocket that, upon testing, consisted of hydrocodone. (Exhibits 2,3,and 15, Tr. P.29, L.13-P.67, L.3, Tr. P.193, L.19-P. 194 L.2, and Tr.P.209 L.21-P.222, L.16).[1]
  1. Petitioner next presented testimony from Officer Barbosa and Ms. Kay McClain. Officer Barbosa was the officer who transported Respondent from Whittier Elementary to booking at the Harris County jail. Kay McClain is the certified drug chemist who tested the substances confiscated by Officers Clinton and Franke.
  1. Officer Barbosa testified that on or about October 29, 2008, he transported Respondent to the jail and evidence (secured from Respondent’s person and vehicle) to the Harris County Medical Examiner for testing. (Barbosa deposition P.22 L.7-24).
  1. Kay Mclain testified regarding the chain of custody and testing procedures for the items confiscated at the scene. (McClain deposition P.11, L.17-P.12, L.12). McClain further testified that samples taken from the evidence collected at the scene in fact tested positive as marijuana and hydrocodone. (McClain deposition p.21, L.8-P.28, L.1).
  1. Petitioner also presented the testimony of Mary Diaz, a teacher at Whittier Elementary School. Ms. Diaz testified that on or about October 29, 2008, she observed Respondent running between temporary buildings going to her vehicle in the parking lot at or around the time Officers Clinton and Franke initiated their investigation.[2] (Exhibits 2 and 10; Tr.P.77, l.17-P.81, L.14; P.96, L.16-P.98, L.5).
  1. Respondent employed Petitioner under a term contract. While a term contract may be terminated for “good cause”, the Texas Education Code provides no definition of “good cause” with respect to term contracts. TEX. EDUC.CODE Section 21.211. In determining the definition of good cause, the Commissioner has used the definition of good cause found in the case Lee-Wright Inc. v. Hall, 840 S.W.2d 572, 580 (Tex.App—Houston [1st Dist.] 1992, no writ):

Good cause for discharging an employee is defined as the employee’s failure to perform duties in the scope of employment that a person of ordinary prudence would have done under the same or similar circumstances. An employee’s act constitutes good cause for discharge if it is inconsistent with the continued existence of the employer-employee relationship.

  1. The credible weight of the testimony and exhibits, presented by Petitioner, indicate that on October 29, 2008, Respondent, while on a school campus, was found in the possession of items that tested positive for the controlled substances marijuana and hydrocodone. A person of ordinary prudence does not possess or use such controlled substances on a school campus, a drug-free environment. Such actions are serious violations of the duties employees owe to their employers as well as the duties a teacher owes to her students. Respondent provided no evidence that the she had a prescription for the hydrocodone or any other reason to excuse her behavior on October 29, 2008.
  1. Therefore, there is good cause to terminate Respondent’s contract based on her possessing and/or using controlled substances in, on or around a school campus.

Issue 2-Whether Respondent Received Adequate Notice

of Petitioner’s Recommendation to Terminate Respondent’s Term Contract

  1. Pursuant to Section 11 of Respondent’s term contract and sections 21.211(a)(1) and 21.251(a)(2) of the Texas Education Code, a Board must give notice of their proposed termination of teacher under a term contract.
  1. On or about December 16, 2008, a Conference for the Record was conducted by Whittier Elementary School Principal Lueptow. Principal Lueptow testified that after considering the HISD PD offense report; statement from Diaz; statement from Respondent; evidence collected by Officer Clinton on October 29, 2008; HISD Board Policy DH (LOCAL), FNCF (LEGAL) and DHE (LOCAL); and Respondent’s Three Year Term Contract, she recommended that Respondent be terminated for violating Board policies prohibiting her from being under the influence of marijuana and/or under the influence and in possession of a drug (hydrocodone) without a prescription while on school property. (Exhibits 3,12,14-15,17-18; Tr.P. 259, L.6-P.262, L.13; P.265, L.20-P.266, L.12; P.266, L.24-P.269, L.17; P.270, L.12-16; P.273, L.4-10).
  1. Principal Lueptow also testified that Respondent was given notice and attended the Conference for the Record. Respondent also received Principal Lueptow’s recommendation for termination. (Exhibit 14, Tr. P.259 L.6-P.260L.7).
  1. Petitioner, in a letter dated March 23, 2009, notified Respondent of her proposed termination and contained grounds for the decision, “good cause as determined by the board.” (Exhibit 11).
  1. Accordingly, the credible weight of the evidence shows that Respondent received adequate notice of the proposed termination of her three-year term contract.

Conclusions of Law

After due consideration of the record, matters officially noticed, and the foregoing capacity, in my capacity as Certified Hearing Examiner, I make the following Conclusions of Law:

  1. Jursidiction to hear this cause is proper under Texas Education code section 21.
  1. Section 11 of Respondent’s three-year contract provides that during the term of this contract, the Employee may be terminated for good cause as determined by the Board... or for any reason stated in Board Policies, SPMs, or this Contract.
  1. TEC Section 21.211(a)(1) provides that the board of trustees may terminate a term contract and discharge a teacher at any time for: (1) good cause as determined by the board.
  1. Board Policy DH (Local) provides that “Employees shall not unlawfully, manufacture, distribute, dispense, possess, use or be under the influence of any of the following substances during work hours while at school or at school related activities during or outside of usual working hours: Any controlled substance or dangerous drug as defined by law, including but not limited to marijuana, any narcotic drug, hallucinogen, stimulant, depressant, amphetamine, or barbiturate;
  • Alcohol or any alcoholic beverage.
  • Any abusable glue, aerosol paint or any other chemical substance for inhalation.
  • Any other intoxicant or mood-changing, mind-altering or behavior-altering drugs.”
  1. Board Policy FNCF (LEGAL) states that “A person commits a criminal offense (enhanced) if the person knowingly and intentionally possesses a controlled substance listed in the Health and Safety Code, Chapter 481; In, on or within 1,000 feet of any real property that is owned, rented, or leased to a school district.”
  1. Board Policy DHE (LOCAL) provides that: “The District reserves the right to conduct searches when the District has reasonable cause to believe that a search will uncover evidence of work-related misconduct. The District may search the employee, the employee’s personal items, work areas, lockers, and private vehicles parked on District premises or worksites or used in District business.”
  1. Consistent with TEA § 21.256(h) (preponderance of the evidence),Petitioner has demonstrated that Respondent while at Whittier Elementary appeared to be under the influence of marijuana
  1. Consistent with TEA § 21.256(h), Petitioner has demonstrated that Respondent (while at Whittier Elementary School, appeared to under the influence and/or possession of a drug (hydrocodone) without a prescription on October 29, 2008.
  1. Consistent with TEA§ 21.256(h), Respondent failed to show that her possession of hydrocodone at Whittier Elementary School was consistent with a medical doctor prescribing such controlled drug.
  1. While a term contract may be terminated for “good cause”, the Texas Education Code provides no definition of “good cause” with respect to term contracts. TEX. EDUC. CODE Section 21.211. In determining the definition of good cause, the Commissioner has used the definition of good cause found in the case Lee-Wright Inc. v. Hall, 840 S.W.2d 572, 580 (Tex.App—Houston [1st Dist.] 1992, no writ):

Good cause for discharging an employee is defined as the employee’s failure to perform duties in the scope of employment that a person of ordinary prudence would have done under the same or similar circumstances. An employee’s act constitutes good cause for discharge if it is inconsistent with the continued existence of the employer-employee relationship.

  1. Petitioner has demonstrated that Respondent’s conduct violated Board Policy DH (LOCAL) and FNCF(LEGAL) and, therefore, constituted good cause for termination.

Recommendation

After due consideration of the record, matters officially noticed, and the foregoing Findings and Conclusions of Law, in my capacity s Certified Hearing Examiner, it is hereby determined that:

Petitioner had good cause to terminate Respondent’s term contract pursuant Section 11 of her three-year term contract and the Texas Education Code, Section 21.211(a)(1).

Respondent received adequate notice of such termination pursuant to Section 11 of Respondent’s term contract and sections 21.211(a)(1) and 21.251(a)(2) of the Texas Education Code.

RECOMMENDED that the board of trustees of the Houston Independent School District adopt the foregoing Findings of Fact and Conclusions of Law and enter an order consistent therewith.

SIGNED AND ISSUED this______day of ______, 2009.

______

Audrie Lawton

CERTIFIED HEARING EXAMINER

1

[1] Petitioner also introduced exhibits 2 and 3, pictures of the scene, including pictures of Respondent on the day of arrest, as well as the items confiscated, later determined to be the controlled substances in question. Petitioner’s exhibit 15 is the police report which

[2] Although no great weight was given to Diaz’s testimony, her observation placed does place Respondent at the scene in or around the time of the events that occurred on October 29, 2008.