DOCKET NO. 077-LH-0209
EDCOUCH-ELSA INDEPENDENT § BEFORE FRANCISCO J. ZABARTE
SCHOOL DISTRICT §
§ CERTIFIED HEARING EXAMINER
VS. §
§
MELIZA R. QUIROZ § TEXAS EDUCATION AGENCY
RECOMMENDATION OF THE CERTIFIED HEARING EXAMINER
Statement of the Case
Edcouch-Elsa Independent School District, Petitioner, has proposed the termination of Meliza R. Quiroz/Respondent’s existing term contract for the 2008-2009 school year pursuant to Texas Education Code Section 21.211(a)(2).
Petitioner is represented by Javier Villalobos, Attorney at Law, VILLALOBOS & VAUGHAN, PLLC, 5804 N. 23rd Street, McAllen, Texas 78504.
Respondent is represented, Pro Se.
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 counselor pursuant to a term contract under Section 21 of the Texas Education Code.
2. By letter dated January 23, 2009, Petitioner notified Respondent of the board's
intent to terminate her existing term contract for the 2008-2009 school year.
3. By letter received by the Commission of Education on February 4, 2009, Respondent requested that the Commissioner of Education appoint a certified hearing examiner to preside over a hearing, and this certified hearing examiner was appointed.
4. On November 22, 2008 the Edcouch-Elsa Independent School District held a meeting in which it approved Superintendent Michael Sandroussi’s recommendation for financial exigency.
5. On January 20, 2009, a board meeting was called to order and in which the board approved Mr. Frank Perez, Assistant Superintendent’s (acting as Interim Superintendent), recommendation for reduction in force of different categories, including the recommendation to cut three counselors for which the board voted unanimously to pass.
6. DFF (Local) allows a reduction in force to take place when the board determines that financial exigency requires the discharge or non-renewal of one or more employees after the superintendent makes the recommendation to the board and the board determines the areas to be affected.
7. DFF (Local) defines financial exigency to be any event or occurrence that creates a need for the district to reduce financial expenditures for personnel, including a decline in the district’s financial resources, a cut in funding and a decline in tax revenues, but not limited to same.
8. DFF (Local) requires that the superintendent recommend to the board to discharge or non-renew employees based on the following criteria in order of importance:
a. Certification.
b. Performance.
c. Seniority.
d. Professional background.
9. DFF (Local) states that after consideration of the superintendent’s recommendation the board shall determine the employees to be proposed for discharge or non-renewal and the superintendent shall provide each employee written notice of the proposed action along with the statement of the reasons requiring such action and notice that the employee is entitled to a hearing.
10. According to ISD Exhibit 6, Edcouch-Elsa Independent School District reduction in force program Phase II, Ms. Quiroz fell into the counselor category of which 3 were proposed to be terminated, one of them being Ms. Quiroz.
11. According to Edcouch-Elsa ISD Exhibit 6, of the 3 counselors which were proposed to be terminated, Ms. Quiroz was ranked number one, being the least qualified because she was the only counselor who lacked her certification in the counseling area.
12. There was no necessity to look at any other criteria under DFF (Local).
13. The recommendations were made by position and not by name and no names were given at the board meeting, simply ranking.
14. Ms. Quiroz admitted that at the time the personnel action was taken to propose a termination on the date of the board meeting, Ms. Quiroz was not certified, but she became certified on January 31, 2009.
15. The parties mutually agreed to extend the time for recommendation pursuant to a prehearing conference of March 12, 2009 by the certified hearings examiner to April 10, 2009 which does not exceed the 105 day after the date on which the Commissioner of Education received Respondent’s request for the assignment of a certified hearings examiner.
16. On March 13, 2009, a prehearing order was prepared with regard to deadlines, proposed material facts at issue with regard to both sides along with the relief requested, and the logistics for the hearing.
Conclusions of Law
After due consideration of the record, matters officially noticed, and the foregoing Findings, in my capacity as Certified Hearings Examiner, I make the following Conclusions of Law:
1. Jurisdiction to hear this cause is proper under Texas Education Code Section 21.257.
2. According to DFD Legal, the district has the burden of proof by a preponderance of the evidence at the hearing.
Discussion
Edcouch-Elsa ISD, through the examination of Jose Perez, Interim Superintendent, presented evidence that the board voted and lawfully called the meeting to authorize him to act as superintendent after financial exigency was declared by the district on November 22, 2008. He testified that Ms. Quiroz had a term contract under Section 21 of the Education Code. He also testified that the financial exigency was declared by the board on November 22 and that he was directed by the board to come up with a plan for reduction in force which would not disrupt the education of the children. He testified that the main problem for the financial exigency was because of over staffing. Furthermore, he testified that the DFF (Local) states that financial exigency constitutes sufficient cause for discharge of an employee, and that he made the recommendations to the board as to which positions to terminate by category, not by name. This was done, according to the minutes, at the board meeting of January 20, 2009.
According to Mr. Perez, Ms. Quiroz fell into the counselor category. From that category, three counselors, including Ms. Quiroz, were recommended to be terminated. However, Ms. Quiroz was the only one not certified in the counseling area of the three, and certification was the first criteria to be used according to the DFF (Local).
Ms. Quiroz cross-examined Mr. Perez with regard to whether or not after the ranking was made the positions were supposed to go before the board one more time before the proposed termination. However, Mr. Perez responded that he had already been instructed by the board to discharge three persons and that was not necessary. Ms. Quiroz also cross-examined by questioning why her name was not put up before the board for consideration and why she was not allowed to remain since she had become certified later. However, the interim superintendent stated that all he was doing was applying the criteria he needed to apply to meet the financial goal, and that Ms. Quiroz was not certified at the time that the action was taken to propose termination. Specifically he stated that the action that was taken on January 20 was like a “snapshot”. Because Ms. Quiroz was certified on January 31, it was too late to re-rank the counselors.
Ms. Quiroz testified that she believed that the district was not applying the policy consistently as it related to her because exceptions were made. She testified, for example, that in the facilitator category, one facilitator whose position had also been recommended to be terminated had actually been certified while another facilitator that was retained was not certified; and, she stated that shows that policy was not followed. Although Ms. Quiroz stated that her evidence was based on January 29 board meeting minutes (Joint Exhibit 3), this hearing examiner cannot find how those minutes support her contention nor did she explain it fully and clearly in the record or with supporting evidence such as witnesses, as had been advised by the hearings examiner at the pretrial conference. Nevertheless, the hearings examiner allowed the exhibit to be introduced in evidence despite Edcouch-Elsa ISD’s objection that such information is irrelevant (though the admission).
Ms. Quiroz also testified that she believed that some positions that remained, including the counselor positions were chosen based on politics. Indeed this hearings examiner notes without testimony of the parties that in the board meeting of January 20, 2009 (Joint Exhibit 2) a citizen stated that politics was what got Edcouch-Elsa ISD into the financial bind that they are in, and the TEA conservator, Mr. Liner, commented that he has seen board members trying to make individual attempts to protect some employee or employees. However, those generalities do not specifically prove her point in light of the fact that Ms. Quiroz admitted that “my termination was done correctly”.
Similarly, Ms. Quiroz also points to the examples of favoritism within the district with regard to a teacher position for a keyboarding job, something that she is certified in as a teacher. She stated that that position was being held open for a facilitator who had applied for a grant but later transferred to an elementary school. When it was discovered that the grant money would not be available because of her transfer, that teacher requested another transfer back and took the keyboarding position from Ms. Quiroz. However, they have not filled the position in the elementary school where she first transferred because they are simply waiting for that teacher to finish out the grant. However, Ms. Quiroz failed to demonstrate with evidence which individual was given such favoritism for the keyboarding position while holding a position in elementary school. Though she presented evidence, a newsletter (Quiroz Exhibit 2), it does not identify the individual involved, what campuses she was assigned to, and relevant dates in order for the hearings examiner to find any support in her statement. Furthermore, when asked if she was qualified for the position that was open, she stated that she was not qualified because she was not certified in elementary. Also, although this hearings examiner sympathizes with the Respondent, the evidence provided by Ms. Quiroz does not show that she made an application for the keyboarding position to begin with or when she made it. If properly developed that could have been the subject of an appeal or an issue in this appeal for the Edcouch-Elsa ISD’s failure to offer Ms. Quiroz a position if she had applied for an open position if she met the objective criteria for the position, and if she was the most qualified, in violation of DFF (Local)(Consideration for Available Position).
Finally, Ms. Quiroz also presented evidence of an individual by the name of Debbie Thomas who brought in a certification, albeit a probationary certification, early in the morning the day before the board meeting which effected her. When Mr. Perez was examined about that information, he stated that he was given Edcouch-Elsa ISA Exhibit No. 8 showing that Ms. Thomas was certified before the board meeting. Though Ms. Quiroz cross-examined that Ms. Thomas’ certificate was a probationary certificate, Mr. Perez responded that according to the memo this would allow that individual to hold the position as a facilitator in any school district during the school year 2008 and 2009. Further he said that this opportunity was not given to her, but rather she came in and did it on her own before the time the action was taken. When asked by the hearings examiner about whether Ms. Quiroz wished to present some evidence regarding Exhibit 8, Ms. Quiroz said she did not have anything to present. Indeed, the evidence shows that by January 29, 2009 Deborah Thomas held a probationary certificate which allowed her to hold the position as a facilitator, which position was being voted on at the special board meeting of January 29, 2009 as shown in Joint Exhibit 3.
Ms. Quiroz’s examples of disparate treatment are distinguishable or are not supported by the evidence she offered. Though she has been with the district a long time and this examiner is saddened that the district has had to take measures which has affected talented educators, Ms. Quiroz is a victim of the financial circumstances of the district. However, the district has shown that it properly followed its policy and directives of DFF (Local); and, at this level the district has met its burden to show that the proposed recommendation was supported by a preponderance of the evidence. Ms. Quiroz was not able to present evidence to overcome same or to prove her allegations to tilt the scale in her favor.
Recommendation
After due consideration of the record, matters officially noticed, and the foregoing Findings and Conclusions of Law, in my capacity as Certified Hearings Examiner, it is hereby
RECOMMENDED that the board of trustees of Edcouch-Elsa Independent School District adopt the foregoing Findings of Fact and Conclusions of Law and enter an order consistent therewith.
SIGNED AND ISSUED this 9th day of April, 2009.
______
Francisco J. Zabarte,
Cert______
Francisco J. Zabarte,
Certified Hearings Examiner
Copies to:
Javier Villalobos, 5804 N. 23rd Street, McAllen, Texas 78504
Frank Perez, 920 Santa Rosa Avenue, Edcouch, Texas 78538
Felix Garza, 920 Santa Rosa Avenue
Isabel Lozoria, 1701 North Congress Avenue, Austin, Texas 78701
Meliza R. Quiroz, P.O. Box 65, Edcouch, Texas 78538
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