DOCKET NO. 103-R3-1194
ANNIE WALTON-JONES§ BEFORE THE
§
§
V.§ COMMISSIONER OF EDUCATION
§
MARSHALL INDEPENDENT§
SCHOOL DISTRICT§ STATE OF TEXAS
DECISION OF THE COMMISSIONER
Statement of the Case
A case of first impression, Annie Walton-Jones, Petitioner herein, appeals the utilization by Marshall Independent School District, Respondent, of supplemental materials in order to complete performance appraisals of its employees, for purposes of contract renewal. Specifically, the issue is framed as: whether Tex.Educ.Code §13.303 and 19 Tex.Admin.Code §149.41 require that a school district use only the Texas Teacher Appraisal System or a locally developed appraisal process and performance criteria that is approved by the Commissioner of Education.
Counsel for the parties agreed that this dispute was a pure question of law and presented the case on stipulated facts, exhibits, cross motions for summary judgment and replies. Petitioner was represented by Dianne E. Doggett, attorney at law, of Austin, Texas and Respondent was represented by J. Barron Neal, attorney at law, of Marshall, Texas. Katherine L. Moore was appointed by the Commissioner of Education to preside over this appeal and render this Proposal for Decision.
The Texas Association of School Boards, through its attorney Mary Carolyn Carmichael of Austin, Texas, requested leave to file an amici curiae brief, to which Petitioner objected. Petitioner’s objections were considered but overruled and the brief of the Texas Association of School Boards was considered.
On January 3, 1997, the Administrative Law Judge issued a Proposal for Decision recommending that Petitioner’s appeal be denied. Exceptions were timely filed, considered and are overruled. No reply was filed.
Findings
After due consideration of the record and matters officially noticed, in my capacity as Commissioner of Education, I make the following Findings of Fact:
1. Annie Walton-Jones (hereinafter “Petitioner”) was employed by the Marshall Independent School District (hereinafter “Respondent”) as a teacher for the 1993-1994 school year pursuant to a written contract of employment.
2. Respondent is a political subdivision of the State of Texas, organized pursuant to law, and charged with the responsibility of operating and maintaining a public school district within its geographic boundaries.
3. The Commissioner of Education has jurisdiction over the subject matter of this cause pursuant to Tex. Educ. Code §11.13. Petitioner has a matter of dispute arising under the school laws of Texas, or is a person aggrieved by the school laws of Texas or by actions or decisions of Respondent’s board of trustees.
4. On February 28, 1994, during the 1993-1994 school year, Petitioner’s performance was appraised by the Respondent school district using the Texas Teacher Appraisal System [at times referred to herein as the “TTAS”], and a form entitled, “Teacher Performance Criteria for Contract Renewal” (hereinafter referred to as the “Local Criteria”).
5. Both the TTAS and the “Local Criteria” were utilized by the Respondent in making a contract renewal determination related to Petitioner.
6. Texas Education Code §13.303(a) provides:
In appraising teachers, each school district shall use:
(1) the appraisal process and performance criteria developed by the [State Board of Education]; or
(2) an appraisal process and performance criteria developed by the school district utilizing the procedures established in Sections 21.930 and 21.931 and approved by the commissioner of education.
7. 19 Texas Administrative Code §149.41 provides, in pertinent part:
(b) The results of the appraisal of teachers... shall
be used as one component for contract renewal
considerations.
***
(d) Each school district shall appraise teachers using
one of the following methods:
(1) the state appraisal process and performance
criteria developed and approved by the SBOE and
outlined in §149.42 of this title (relating to Teacher
Performance Criteria), §149.43 of this title (relating to
Teacher Appraisal Procedures), and §149.44 of this title
(relating to Teacher Appraisal Instrument); or
(2) an appraisal process and performance criteria
that is:
(A) based on:
(i) domains listed in Texas Education
Code, §13.302; and
(ii) observable, job-related behavior,
including teachers’ implementation of
discipline management procedures;
(B) developed by the district using the procedures established
under the Texas Education Code, §21.930 and
§21.931; and
(C) approved by the commissioner of education.
8. The “Local Criteria” was not part of the appraisal process and performance criteria developed by the State Board of Education.
9. The “Local Criteria” was not developed by a site-based committee or any person from the school district.
10. Respondent uses the Local Criteria for contract renewal purposes.[1]
12. Texas Education Code §13.303(a) and 19 Texas Administrative Code §149.41 formed a part of Petitioner’s contract of employment.
13. Petitioner timely grieved this matter. Respondent’s board of trustees denied Petitioner’s grievance on October 10, 1994.
Discussion
The conflict presented in this appeal revolves around what instruments may be utilized by a school district in order to evaluate a teacher’s performance for contract renewal purposes. Petitioner contends that because of statutory language, only the Texas Teacher Appraisal System instrument may be used. Respondent asserts that, so long as it utilizes the TTAS (as it does) or some other statutorily sanctioned evaluation instrument, there is no prohibition against its supplementing that procedure with its own Local Criteria format.
The summary judgment evidence presented by Petitioner somewhat clouds the issue in this case in intermingling evidence offered to support her position. Specifically, attached to the motion are comments by the school law community when Senate Bill 7 was in the process of altering statutory requirements concerning evaluations. While some of the comments do speak directly to utilizing the TTAS as the sole evaluation instrument, other comments are more focused upon requiring school districts to have to use the TTAS or some site-based compilation approved by the commissioner, without any comment being given on the exclusivity issue. The latter take no stand on the exclusivity position proffered by the Petitioner. Moreover, there was no uniformity with regard to teacher groups versus administrative groups. Some teacher groups specifically envisioned use of data and forms in addition to the TTAS, while others did not. Be this as it may, the comments of interested parties to the proposed legislation occurring in conjunction with amendments and alterations to the statutes involved, while informative, are not dispositive.
Here, the sole issue is whether the use of TAAS or a site-based-created evaluation method can be the only performance system utilized in connection with renewal/nonrenewal.
The legislative history presented by Petitioner is not entirely helpful to her position. She strongly focuses on the fact that the State Board of Education changed the word “may” to “shall” in 19 TAC 149.41(b) so that the applicable phrase was changed to read in pertinent part:
“The results of the appraisal of teachers shall be used for
professional staff development purposes and shall be used
as one component for contract renewal considerations.”
***
(d) “Each school district shall appraise teachers using one
of the following methods: ***”[citing adoption of the TTAS
or development by a site-based decisionmaking committee with
approval from the commissioner of education]
From this change, Petitioner concludes that this “was understood to mean that the only performance appraisals that could be used for contract renewal purposes were either the TTAS or appraisals developed through the site-based decisionmaking processes” as set forth in Tex.Educ.Code §§21.930 and 21.931.
But this is not the only conclusion to be reached from the above quoted and amended wording of the statute. A more reasonable conclusion, particularly in light of the language not highlighted above, to the effect it such evaluation shall be used as one component for contract renewal considerations,” is that, while a school district must utilize either the TTAS or a locally developed site-based evaluation form approved by the commissioner, it is not necessarily limited solely to that form in making contract determinations. As Respondent has succinctly put it, “shall” does not mean “only.”
Moreover, had the legislature intended the result asserted by Petitioner it could easily have inserted the word “only” or “sole” to define any intended limitation upon school districts in their consideration of contract renewal. That they did not is just as illuminating as if they did.
Additionally, as a matter of public policy, school districts should not be unreasonably hampered in their ability to manage, so long as the corresponding, full panoply of due process considerations are respected. As such, the statute and companion regulations do not limit the right of school districts to use only the TTAS or a locally developed and commissioner approved evaluation in connection with contract renewal. Supplemental forms, systems and other data may legitimately be considered.
For these reasons then, it is ordered that Petitioner’s appeal be denied.
Conclusions of Law
After due consideration of the evidence and matters officially noticed and the foregoing Findings, in my capacity as Commissioner of Education, I make the following Conclusions of Law:
1. The Commissioner of Education has jurisdiction over this appeal pursuant to former Tex.Educ.Code §11.13.
2. Respondent’s use of the TTAS to evaluate its teachers for contract renewal purposes meets the requirements of Tex.Admin.Code §149.41(b) and Tex.Educ.Code §13.303(a)
3. Respondent has not breached Petitioner’s contract.
4. Petitioner’s appeal should be DENIED.
O R D E R
After due consideration of the record, matters officially noticed and the foregoing Findings and Conclusions of Law, in my capacity as Commissioner of Education, it is hereby
ORDERED that Petitioner’s appeal be, and is hereby, DENIED.
SIGNED and ISSUED this _____ day of ______, 1997.
______
MIKE MOSES
COMMISSIONER OF EDUCATION
[1] This stipulation originally read