TEXAS EDUCATION AGENCY
HEARINGS DIVISION
IN THE MATTER OF: §
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YSLETA INDEPENDENT §
SCHOOL DISTRICT §
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Petitioner §
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and § TEA No. 074-LH-304
§ PATRICIA PALAFOX
JOSE GRIEGO, § CERTIFIED HEARING EXAMINER
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Respondent §
RECOMMENDATION OF CERTIFIED HEARING EXAMINER
Statement of the Case
By notice dated March 10, 2004, Ysleta Independent School District (“YISD”) gave notice to Jose Griego (“Griego”) that he was being recommended for non-renewal. Respondent Griego requested the assignment of a certified hearing examiner under Chapter 21, Subchapter F of the Texas Education Code. By letter dated April 5, 2004, the undersigned was assigned to preside over this case.
The Hearing Examiner entered pretrial scheduling and discovery orders. Pursuant to Texas Education Code section 21.257(c) the parties agreed in writing to extend by no more than 45 days the time requirement in Texas Education Code section 21.257(a) for the certified hearing examiner to issue a written recommendation.
The above-captioned matter came on for hearing before the Certified Hearing Examiner, commencing on May 17, 2004 and continuing May 18 and 19, 2004. The proceedings were conducted at the offices of the Ysleta Independent School District. Petitioner was present and represented by attorneys Rosemary M. Marin and M. Mitchell Moss. Respondent was present and represented by attorney Mark Berry. After consideration of the record and matters officially noticed, in my capacity as Certified Hearing Examiner, I make the following findings of fact and conclusions of law:
Findings of Fact
(Transcript references explanation: page 82, lines 1-4 written as Tr. 82:1-4)
1. The Hearing Examiner has proper jurisdiction over the parties and the subject matter.
2. Jose Griego was employed pursuant to a term contract as an academic counselor at Bel Air High School, in the Ysleta Independent School District, for the 2003-2004 school year (Exh. 5). This position requires a counselor’s certificate. (Exh 5, 113) Griego has been a school counselor since 1973 (Tr. 82:1-4).
3. Jose Griego met with Raye Lokey, the former Associate Superintendent of Human Resources, and Dr. Jodi Duron, the Director of Employee Relations, on February 13, 2004, wherein he was given an opportunity to fully respond to the District’s administrators in the Human Resources Department regarding Principal Jana Garcia’s recommendation to propose non-renewal of his contract (Exh. 105).
4. Jose Griego received by hand delivery the District’s notice of proposed non-renewal on March 11, 2004 (Tr. 449: 14-19; Exh. 108).
5. The District’s notice of proposed non-renewal lists seven (7) reasons or grounds for proposing non-renewal. (Exh. 108 ). The reasons can be summarized as follows: a. Failure to file a report with Child Protective Services and insubordination in failing to file one when directed to by his Principal.
b. Failure to follow directions by classifying 46 out of 48 Junior level students incorrectly.
c. Incorrectly placing twenty-five Senior level students which could detrimentally effect their ability to graduate on time.
d. Insubordination in refusing to comply with the directives of an intervention plan imposed on him by his Principal;
e. Failure to correct or even address deficiencies in the imposed intervention plan.
f. Failure to maintain an effective working relationship, or maintain good rapport, with parents, the community or colleagues as evidenced by numerous complaints brought against him by parents, students, and colleagues.
6. The District’s notice of proposed non-renewal lists numerous Board policies and administrative regulations allegedly violated by Mr. Griego. The District’s notice of non-renewal also stated that Griego failed to perform in a satisfactory manner the duties in his job description which was attached to the notice of non-renewal. (Exh 108, 113).
Failure to file a CPS Report
7. R. Zubia, a 15-year-old student assigned to Griego, was a run away from home over the weekend of October 11-12, 2003. On October 13, 2003, Zubia’s mother contacted Griego to tell him to be on the lookout for the student. On October 13, 2003 R. Zubia was in class so Griego asked to speak to her to ask why she ran away. (TR 206:1-2) She told Griego that she felt uncomfortable with her older brother (Tr. 205:9-16). Griego did not ask why R. Zubia was uncomfortable with her brother (Tr. 206: 3-5). However, R. Zubia told Griego that her brother was “poking her butt” with a pencil, and asking her to suck his penis, and one night she awoke at night to find her brother sitting next to her on the bed (Tr 204:18-23; 788:16-789:4; 792:4-13).
8. On October 14, 2003 Griego approached Denisa Garcia, Zubia’s English teacher, to inquire about Zubia. Zubia was not in class. Griego reported to Denisa Garcia the situation with the student and told her that there were allegations of sexual advances by Reina’s brother. When Ms Garcia asked Griego if he had reported the matter to Child Protective Services as required by law and District Policy, Griego said that he did not know if the allegations were true or not, and he needed proof. Ms. Garcia argued with him that their duty was to report, not to discover whether allegations were true or not. Mr. Griego left. Ms. Garcia then decided to make the report and she did so to a police officer, Ed Hernandez, who is stationed on campus. (Tr 670: 1-25) On October 16, 2003 Denisa Garcia reported the issue of R. Zubia to Child Protective Services (Ex. 20).
9. Later on October 14, 2004, the police officer questioned Griego. Griego understood that, during an on-going investigation of child abuse, it was his duty to fully cooperate with CPS and the police department (Tr. 202: 19-24). Nevertheless, Griego did not want to talk to Officer Gonzalez of the El Paso Police Department during his investigation of R. Zubia’s allegations and by his own admission responded only minimally when Officer Gonzalez went to talk to him about the situation (Tr. 212:23-213:4; Exh. 22, 24). Griego told Gonzalez that the allegation of sexual misconduct had been resolved by the student’s family. (Exh. 22).
10. In the afternoon of October 14, 2004, Griego confronted the English teacher Denisa Garcia and questioned why she had made a report to Child Protective Services about R. Zubia’s situation (Tr. 207: 18-22). In his opinion, it would have been better not to report R. Zubia’s allegations to Officer Gonzalez of the El Paso Police Department because he considered such action a breach of confidentiality (Tr. 208: 12-17). Griego was visibly angry and yelled at the English teacher so that students could hear him. (Tr. 673:8-25, Tr 674:1-17)
11. YISD’s policy FFG relates to student welfare, child abuse and neglect (Exh. 114, Policy FFG, including FFG’s Exhibits, Bates page numbers 222, 223 and 224, 525 and 526). Policy FFG and its Exhibits state that anyone who suspects that a child has been or may be abused or neglected has a legal responsibility under state law to report the abuse or neglect to law enforcement or to Child Protective Services. Griego received training on policy FFG as recently as September,2003 (Tr. 195: 16-196:19; Exh. 114). Griego understood the District’s policy with regard to reporting suspected child abuse (Tr. 197: 20-22). Griego was also reminded by a teacher, Denisa Garcia, that it was his duty to report R. Zubia’s situation to Child Protective Services (Tr. 216: 16-24). He further understood that an untimely report of abuse to appropriate authorities could place a child at risk of continued abuse (Tr. 202:25-203: 3).
12. Griego made a conscious decision not to report R. Zubia’s situation to CPS or the El Paso Police Department (Tr. 211; 6-18). In fact, he never had any intention of reporting the incident because he did not believe he had enough proof to substantiate it, even after being directed to do so by his principal, Jana Garcia (Tr. 6-18; Exh. 23, 24). Principal Garcia had met with Mr. Griego on October 16, 2003 and October 22, 2003. (Ex. 23) In her October 22 memo which was the basis of the meeting, she raised her concerns that Griego failed to report suspected sexual abuse and verbally accosted Ms. Garcia and yelled at her in a threatening manner. She stated that Griego had agreed to make a report to CPS. In Griego’s rebuttal letter to his Principal Jana Garcia concerning this incident, he accused the Principal of fabricating that he had agreed to contact CPS, he accused the El Paso Police Officer of falsely reporting his conversation with Griego, and said the fabrications were made up because the English teacher had breached confidentiality. (Exh. 24). Griego denied that he was told anything by Zubia except that her brother made her uncomfortable.
13. R. Zubia’s runaway status coupled with the information that she was uncomfortable with her older brother and that her uncomfortableness could involve sexual abuse was sufficient reason for Jose Griego to have reported the allegations to CPS or law enforcement authorities, in accordance with District Policy FFG, FFG Exhibit and Texas Family Code Section 261.101. Reporting child abuse would not breach any confidentiality. .
14. By failing to report Jose Griego violated District Policies FFG, the District’s standards of professional conduct as well as Texas Family Code Section 261.101 (Exh. 114, 115 ).
15. Griego’s violation of Policy FFG was raised as aconcern to him by the school principal, Jana Garcia, in a memo dated October 22, 2004 (Exh.23). In addition, the manner in which Griego handled the R. Zubia issue was addressed in an Intervention Plan, which required that Griego review policy FFG and outline the legal requirements of the policy, which Griego refused to do (Exh. 35). Griego’s subsequent evaluation dated February 3, 2004, also reflected concerns regarding the issue of reporting potential child abuse(Exh. 43).
16. By violating Board Policy FFG, Griego failed to fulfill the duties and responsibilities of his position, failed to meet the District’s standards of professional conduct (specifically, Standard 1.7) (Exh. 115), failed to comply with special conditions of employment contained within his employment contract (Exh. 5) and failed to perform to the satisfaction of the District all duties set forth in the job description (Exh. 113), or as assigned.
Misclassifying 46 out of 48 Junior Students
17. This was the first year of the Texas Assessment of Knowledge and Skills (TAKS) test and all counselors were reminded to double-check and have their grade level changes for new students completed by October 30, 2003 (Tr. 227:16-2287, Exh. 29). Counselors also discussed this issue at counselors’ meetings including one on October 30, 2003 (Exh. 30). Griego knew that it was his responsibility to follow those directions and properly place the students (Tr. 228: 27; Tr. 479:11-13).
18. Griego submitted to the attendance clerk a list of names of 48 juniors that he wanted re-classified as seniors (Tr. 231: 9-1 1; Tr. 247: 18-25; Exh. 33B). This information was then included in a state-mandated report (PEIMS). The PEIMS report contains important demographic information about the school.
19. Griego admits that he misclassified 46 out of 48 juniors as seniors because he did not check their 9th grade entry dates (Tr. 232:20-233:2). Griego knew it was important when auditing a transcript to look at the 9th grade entry date because students are classified based on number of credits earned as well as their entry date into the 9th grade. (Ex. 34, Tr 228:17- 228:20). The juniors in question had enough credit hours to be seniors but they had not spent the calendar days in school which are required in order to be a senior. No other counselor made this mistake.
20. By the time Griego’s mistakes were discovered, the PEIMS report had gone to the Texas Education Agency (Tr. 233:3-5; 476: 22-477:7). Therefore, the PEIMS report was improperly submitted to the State as a result of his mistakes (Tr. 233: 6-8).
21. Due to the large number of mistakes by Griego, Bel Air had to completely re-submit the PEIMS report rather than just submit corrections (Tr. 477:8-16).
22. Due to Griego’s errors, misclassified students’ testing materials which are usually computer coded with information from the PEIMS report, all had to be hand-coded by another counselor (Tr. 237:2-5; 477: 23-5).
23. Due to Griego’s errors, transcripts submitted with the PEIMS report were incorrect due to the identification of the grade level (Tr. 238: 8-16). The incorrect transcripts had to be corrected by the registrar (Tr. 477:17-22).
24. Griego’s errors with these students also affected the class ranking of seniors because the junior students who were incorrectly classified as seniors were added to the list of 12th grade students (Tr. 242: 5-11; 478:13-15). This is significant because the students who were mis-classified were above-average students, so this mistake could very well have bumped some senior students down in the class rankings (Tr. 243: 1-4). Class rank can affect college applications, as well as scholarships (Tr. 243: 11-18; Tr. 478:16-23).
25. Griego admits that his mistakes and their consequences in this regard could have been avoided by just following instructions that he received to check the 9th grade entry dates of the students (Tr. 243: 19-22).
26. Griego’s errors in misclassifying 46 juniors were discovered and brought to his attention on November 18, 2003 when he received a copy of a memo from the Head Attendance Clerk to the Assistant Principal Marilyn Money (Exh. 33A, 33B, 34, 35), one day after the Intervention Plan was implemented (Tr. 248: 21-22; Exh. 35). Griego was reprimanded for his mistakes in a memo dated Nov. 20, 2003 from Assistant Principal Marilyn Money. Griego did not write any sort of rebuttal as he had done on issues in the past nor did he file a grievance or otherwise complain about his supervisor’s findings or instructions regarding this issue (Tr. 248: 4-6). This issue was further raised during Griego’s most recent evaluation (Exh. 43).