DOCKET NO. 090-LH-0209
EDCOUCH-ELSA INDEPENDENT § BEFORE
SCHOOL DISTRICT § ROBERTO M. GARCIA
§
v. § CERTIFIED HEARING EXAMINER
§
SYLVIA PULIDO § TEXAS EDUCATION AGENCY
______
RECOMMENDATION OF HEARING EXAMINER
I.
STATEMENT OF THE CASE
Respondent, SYLVIA PULIDO (PULIDO), appeals the proposed decision of the Petitioner, the EDCOUCH –ELSA INDEPENDENT SCHOOL DISTRICT (DISTRICT) to terminate her term contract of employment as a “Secondary Curriculum Director” due to a financial exigency requiring a reduction in force. Notice of the proposed termination was given by DISTRICT to PULIDO by letter dated January 30, 2009. PULIDO timely requested a hearing pursuant to Chapter 21, Subpart F of the Texas Education Code and requested the assignment of an independent hearing examiner by the Texas Education Agency (TEA). On February 27, 2009, TEA appointed the undersigned hearing examiner to preside in this matter. An evidentiary hearing was held before the hearing examiner in the board room of the DISTRICT on April 6, 2009. DISTRICT was represented by Attorney Javier Villalobos, Villalobos & Vaughan, PLLC, McAllen, Texas. PULIDO was represented by Kevin F. Lungwitz, Lungwitz & Lungwitz, PC, Austin, Texas.
II.
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. DISTRICT employs PULIDO under a two-year, term contract that states that her employment position and duties assigned to her are that of “Secondary Curriculum Coordinator.” The contract is for the term July 1, 2008 through June 30, 2010. (Exhibit J-1, page 5)
2. PULIDO has served as the DISTRICT’S “Secondary Curriculum Coordinator” since 2005. (Record, p. 85) Since her employment as a “Principal”, then later as a “Secondary Curriculum Coordinator”, her contracts have always stated that her employment position and duties assigned to her were that of “Administrator.” (Exhibit J-1)
3. In July 2008, PULIDO’S contract states that her employment position and duties assigned to her were the specific position of “Secondary Curriculum Coordinator.” (Exhibit J-1, p.5)
4. Paragraph 3 of PULIDO’S contract states in relevant part that “Employee shall be subject to assignment and reassignment of positions or duties, additional duties, changes in responsibilities or work, transfers, or reclassification at any time during the contract term”. (Exhibit J-1, p.5)
5. In about August of 2008, under the authority of paragraph 3 of the term contract, PULIDO was reassigned or reclassified to the position and the duties of “Director of Special Programs.” PULIDO’S contract, salary, and benefits remained the same. There was never any paperwork executed between her and the DISTRICT reflecting this change. (Record, p. 87) All official paperwork in the DISTRICT showed PULIDO as continuing to officially hold the position of “Secondary Curriculum Coordinator.” (Exhibits J-2, J-9).
6. While performing the duties associated with the “Director of Special Programs”, PULIDO continued performing some of the duties of “Secondary Curriculum Coordinator”. (Record, pp. 88-89)
7. PULIDO was reassigned or reclassified from “Secondary Curriculum Coordinator” to “Director of Special Programs” replacing Carmen Garcia. PULIDO acknowledged the reassignment or reclassification by assuming the duties and responsibilities of the position and using the new title in emails to staff. (Exhibit J-15; Record pp. 19 and 20)
8. DISTRICT and PULIDO stipulated that DISTRICT is experiencing a “financial exigency” as that term is defined by policy DFF (local), and that the financial exigency necessitated a “reduction in force” (RIF), a process whereby the school district lays off employees under the provisions of policy DFF (local). (Record, p. 75; Exhibits J-4)
9. The school board declared a financial exigency in November 2008. Reasons for the declaration included debt and not making budget due to overstaffing. The board attempted to increase taxes by referendum but that effort failed. (Record, pp. 14 and 15)
10. Due to the leave of absence of the Superintendent, Jose F. Perez was empowered by the school board in his capacity as Assistant Superintendent to assume all of the duties of the Superintendant including the development of the reduction in force program and the making of recommendations to the board. (Record, pp.13-16)
11. Policy DFF (local) provides a non-exhaustive listing of employment areas which may be affected by a reduction in force, and among other areas includes single or multiple administrative positions. (Exhibits J-4)
12. Jose F. Perez made the recommendations to the board as to the areas or categories that should be cut and the board voted to accept the affected employment areas including Phase II which designated one employment area as “Administrator/Other Professionals” with 23 single administrative positions which included PULIDO. (Record, pp. 16,17, 20; Exhibits J-5, J-7, p.6)
13. DISTRICT terminated the employment of over 240 employees in two RIF phases. Phase I involved noncontract, at will employees and occurred in the fall of 2008. Phase II occurred on January 20 and 29, 2009 and involved professional, contract employees. Only about eight employees have challenged their proposed RIF terminations. (Record, p. 22)
14. On January 20, 2009, at a lawfully called board meeting, Jose F. Perez recommended and the board approved different categories for reduction in force as Phase II employees including the area of “Administrator/Other Professionals” with 23 single administrative positions which included PULIDO (Record, pp. 16,17, 20, 73; Exhibit J-5, p. 7; J-7)
15. On January 29, 2009, at a lawfully called board meeting, Jose F. Perez recommended and the board approved different categories for reduction in force as Phase II employees including the area of “Administrator/Other Professionals” with 23 single administrative positions which included PULIDO (Record, pp. 16, 17, 20; Exhibit J-6, pp. 3 and 4; J-7)
16. By letter dated January 30, 2009, DISTRICT informed PULIDO that at a board meeting on January 29, 2009, it had accepted the Assistant Superintendent’s recommendation to propose termination of her existing term contract for the 2008-2009 school year. (Exhibits J-2)
17. PULIDO timely requested the assignment of a certified hearing examiner under Chapter 21, Subchapter F of the Texas Education Code for the purpose of conducting a hearing concerning the DISTRICT’S proposed termination.
18. Fred Liner, conservator appointed by the Texas Education Agency made several comments to the news media which PULIDO construes as an acknowledgment that politics has played a role in the reduction in force process. (Record pp. 76-81)
19. Fred Liner’s explanation in his sworn deposition concerning his quotes to the news media, indicates that there is no evidence that politics or political considerations affected the RIF procedures, recommendations and decisions. (Record pp.79 and 81)
20. Neither administrators nor board members have tried to influence Jose F. Perez one way or the other in the RIF process. (Record p.41)
21. Jorge Gutierrez, a JR3 employee (retire/rehire) held the position of Director of the Alternative Center prior to Jose F. Perez who was appointed to the position when Jorge Gutierrez was terminated. (Record pp. 43-45)
22. Jorge Gutierrez filed legal action against the DISTRICT for his termination and he was brought back as Director of the Alternative Center as a part of a settlement which involved Fred Liner, the DISTRICT lawyer and Gutierrez’ lawyer.(Record pp. 45,50, 98-106)
23. Jorge Gutierrez was administratively returned to his former position as Director of the Alternative Center as a part of the settlement of his legal action as a reinstatement. (Record pp. 100, 101)
24. Due to Jorge Gutierrez’ reinstatement, there was never break in service nor a vacancy in the position of Director of the Alternative Center such that it would be advertised as a vacancy open for application.. (Record pp. 47,103-105)
25. Under the Phase II recommendations, PULIDO was in an administrative area of employment of one administrator which when recommended for a cut obviated the need to apply policy DFF (local) criteria for decision. (Record pp. 75 and 76, Exhibits J-4)
III.
DISCUSSION
PULIDO has been employed by DISTRICT since 2000 to the present. In 2000 she had a one year term contract for the position of “Teacher”. Thereafter she had multiple year term contracts for the position of “Administrator” under which she served as a “Principal” and later as a “Secondary Curriculum Coordinator”, a position she has held since 2005. In April 2008, she was employed under a multiple year term contract and rather than being assigned the position and duties of “Administrator” as she had in the past, she was assigned the position and duties of “Secondary Curriculum Coordinator”. The contract is a two (2) year contract beginning on July 1, 2008 and ending on June 30, 2010. At paragraph 3 of the contract is a clause stating that “Employee shall be subject to assignment and reassignment of positions or duties, changes in responsibilities or work, transfers or reclassifications at any time during the contract term”. This contract is the subject of this hearing.
Sometime in August 2008, PULIDO was assigned the duties of “Director of Special Programs”, a move whereby she replaced Carmen Garcia. This personnel move was effectively a reassignment or reclassification for PULIDO from “Secondary Curriculum Coordinator” to “Director of Special Programs” under the authority of paragraph 3 of PULIDO’s term contract. PULIDO accepted and assumed the new title and role and performed the duties associated with the new position. Although PULIDO continued to perform some of the job duties of “Secondary Curriculum Director”, they were minimal. There was no change in professional capacity, PULIDO’s contract, salary and benefits remained the same and she did not suffer any economic loss. No paperwork was executed between PULIDO and DISTRICT as an amendment to her term contract to reflect this personnel change. None was necessary as the DISTRICT had merely exercised its authority to reassign or reclassify under paragraph 3 of the term contract. Official documents at the DISTRICT still show PULIDO to officially hold the position of “Secondary Curriculum Director”, however, this appears to be a clerical or logistical issue with the DISTRICT rather than a substantive issue.
In November 2008, DISTRICT by and through its school board declared a financial exigency. Some of the reasons given for the declaration included the DISTRICT debt and trouble it was having in making budget. The causes for the DISTRICT’s poor financial state included overstaffing. In an effort to improve its financial state, the school board attempted to increase its revenues and raise taxes by way of a tax increase referendum. This effort failed. Left with no other alternative, DISTRICT was required to implement policy DFF (local) which among other program changes included calling for a reduction in force. DISTRICT and PULIDO have stipulated to the existence of a financial exigency.
After the DISTRICT declared a financial exigency, its Superintendent was placed on a leave of absence. Assistant Superintendent Jose F. Perez was empowered by the school board to assume all of the duties of the Superintendent including the development of the reduction in force program and the making of recommendations to the school board. Under the authority of policy DFF (local), Perez began to develop his reduction in force program. Policy DFF (local) authorizes the creation of employment areas which may be affected by a reduction in force. The policy further authorizes the use of single or multiple administrative positions as affected areas of employment. Perez developed a reduction in force program that would be implemented in two phases. Phase I included non-contract at will employees. Phase I was presented to the school board by Perez with recommendations. Phase I resulted in 240 employees being terminated. Phase II included professional, contract employees. Phase II recommendations were presented to the school board on January 20 and January 29, 2009. PULIDO’S position was included in the Phase II recommendations.
On January 20, 2009, Perez presented Phase II of his reduction in force plan and recommended that the school board vote to approve the different affected employment area categories presented. Perez’ Phase II plan included a designation of one employment area as “Administrator/Other Professionals” which included within it 23 single administrative positions including the “Director of Special Programs” position held by PULIDO. The school board unanimously approved all of the Phase II categories. Mr. Perez then began making his recommendations under the various affected employment area categories. When he reached the employment area category designated “Administrator/Other Professionals”, Perez made his recommendations to the school board on each of the individual administrative positions. The school board considered each individual administrative position and voted on whether to keep or terminate the position. Some votes were unanimous and some were divided. When the school board reached the individual administrative position of “Special Programs Director”, Perez recommended termination of the position. No motion was made. PULIDO’S position was not terminated at this meeting.
Thereafter, on January 29, 2009, Perez again presented Phase II of his reduction in force plan and recommended that the school board vote to approve the different affected employment area categories presented. The school board unanimously approved all of the Phase II categories. Perez made his recommendations to the school board on each of the individual administrative positions. The school board considered each individual administrative position and voted on whether to keep or terminate the position. Some votes were unanimous and some were divided. When the school board reached the individual administrative position of “Special Programs Director” under the category designated “Administrator/Other Professionals”, a motion was made to approve Perez’ recommendation to terminate the position. The motion passed by a vote of 4 to 3. PULIDO’S position was terminated at this meeting.
PULIDO argues that she had a valid contract for “Secondary Curriculum Coordinator”. She further argues that the DISTRICT never proposed the termination of this position and that the position still exists. The DISTRICT on the other hand argues that PULIDO is no longer the “Secondary Curriculum Coordinator” when she was reassigned and reclassified to the position of “Director of Special Programs” under paragraph 3 of her term contract. The DISTRICT further argues that under the reduction in force program, the position was terminated.
In support of her position, PULIDO relies on the case of Trevino vs. West Oso ISD, Docket No. 003-R3-989 (Comm’r Educ. 1991). In that case the employee had a contract for the position of “Athletic Director/Head Football Coach” and was considered an administrator by the school district. The school district attempted to assign him to a teaching position in addition to his “Athletic Director/Head Football Coach” position. This case can be distinguished from the case at bar in that Trevino was appointed to teach four classes in addition to his assignments of “Athletic Director/Head Football Coach”. The Commissioner clearly distinguished the difference between the duties of teacher and administrator. The Commissioner held that teaching is a professional capacity different from that of administrator which does not have any involvement in curriculum or academics and that the reassignment clause in Trevino’s employment contract does not authorize the assignment of duties not within the bounds of duties generally assigned to the professional status articulated in the contract. In other words, the position of “teacher” does not share the same essential elements of an administrator position. The Commissioner clearly stated that the reassignment clause within the employment contract authorizes the assignment of duties so long as the duties are related to the position. In this case, PULIDO was reassigned and reclassified to the position of “Director of Special Programs” an administrator position. There was no change in professional capacity and she has suffered no economic harm. The reassignment and reclassification of PULIDO from “Secondary Curriculum Coordinator” to “Director of Special Programs” under paragraph 3 of her term contract is proper under PULIDO’S term contract.