DOCKET 192-LH-0411

HOUSTON INDEPENDENT§BEFORE A CERTIFIED

SCHOOL DISTRICT,§

Petitioner§

v.§HEARING EXAMINER FOR THE

§

§

JOSHUAHILL,§

Respondent§TEXAS EDUCATION AGENCY

WRITTEN FINDINGS OF FACT, CONCLUSIONS OF LAW, ANDRECOMMENDATION OF THE CERTIFIED HEARING EXAMINER FOR THE

STATE OF TEXAS

I. STATEMENT OF THE CASE

This appeal is from the April 8, 2011, proposed nonrenewal of Mr.JoshuaHill’s (“Respondent”) term contract by the HoustonIndependentSchool District (“HISD” or “District”). At the time of the proposed nonrenewal, Respondent was a teacher at the High School for the Performing and Visual Arts (“HSPVA”) under a one year term contract. The basis for the proposed nonrenewal is reduction in force (“RIF”) because of financial exigency or program change.

In compliance with Tex. Ed. Code §21.251 et seq., Respondent requested a hearing before a Certified Hearing Examiner. Ms.ThelmaElizalde was appointed by the Commissioner of Education to: 1) conduct the hearing; 2) make written Findings of Fact and Conclusions of Law, and 3) make a Recommendation to the HISD board. Mr.LarryWatts and Ms.SusanSoto, Watts & Associates, represented Respondent at the hearing conducted on June 22, 2011. Mr.MarioL.Vásquez, Assistant General Counsel for HISD, represented HISD.

II. FINDINGS OF FACT

After consideration of the record and matters officially noticed, the following Findings of Fact (citations to evidence are not exhaustive but are intended to indicate some of the basis for the particular finding of fact) were proven by a preponderance of the evidence:

Background.

  1. Respondent was employed at HSPVA on a one-year term contract during the 2010-11 school year. (HISD Ex.2).[1]
  1. Respondent was a social studies teacher under job code 00031. (Tr. 48[2]).
  1. Ms.SandraJohnson was also a social studies teacher at HSPVA under job code 00031. (Tr. 48).
  1. Dr.RobertScottAllen (“Dr.Scott”) was Principal at HSPVA and Respondent’s supervisor during the 2010-11 school year. (Tr. 43).
  1. Dr.TerryB.Grier (“Dr.Grier”) is the HISD Superintendent of Schools during the 2010-11 school year. (HISD Ex. 1).

Reduction in Force/Program Change.

  1. In anticipation of the Legislature’s projected reduction in state funding for public education, Ms.SharonEaves, General Manager of Budget and Financial Planning for HISD, planned and preparedHISD’s budget. (Tr. 13-15; HISD Ex. 5).
  1. HISD’sbudget is based on enrollment, average daily attendance by students, and property values. When property values go up, the State gives the District less money. When the values go down, the State gives the District more money. The District also factors in demographic information on students to determine any extra funding from the state. (Tr.13-15).
  1. The poor economic climate plus the anticipated reduction in state funding led Ms.Eaves and her staff to project that HISD would face a $171 million shortfall for the 2011-12 school year. (Tr. 17; HISD Ex. 5).
  1. HISD develops each school’s preliminary budget based on per unit allocation (“PUA”) for each student, which is based on the projected enrollment at the campus and additional demographic information and needed special programs. (Tr. 16).
  2. In anticipation of the cuts to be made by the Legislature, the HISD Board of Trustees (“Board”) approved a reduction of $275 per unit to the average PUA. (HISD Ex. 5; Tr. 17).
  1. The magnitude of the budget cuts necessitateda RIF within HISD. (Tr.20).
  1. HISD Board Policy DFF (Local) provides that “[a] reduction in force may take place when the Board determines that financial exigency exists or the Superintendent determines that a reorganization or program change is required.” (HISD Ex. 13, Exhibit A).
  1. Dr.Grier determined a reorganization and/or program change was required to meet student needs on each campus and department. (HISD Ex. 13, Exhibit F).
  1. Board Policy DFF (Local) defines program change as follows: “Program change” shall mean any elimination, curtailment, or reorganization of a curriculum offering, program, school operation, or department. The term shall include, but not be limited to, a change in curriculum objectives, a modification or reorganization of staffing patterns on a particular campus or Districtwide, a redirection of financial resources to meet educational needs of the students, a lack of student response to particular course offerings, legislative revisions to programs, a reorganization, or a consolidation of two or more individual schools, administrative districts, or departments.” (HISD Ex. 13, Exhibit A).
  1. Board Policy DFF (Local) provides that “[w]hen a reduction in force is to be implemented, the Superintendent may assist the Board by making recommendations to the Board regarding the employment areas to be affected.” (HISD Ex. 13, Exhibit A).
  1. At a Board meeting on March 10, 2011, Dr.Grier recommended, and the Board approved, employment areas to be affected by the RIF, including “High School Social Studies…” at HSPVA. (HISD Ex. I3, Exhibit F, G, I).
  1. To assist and guide campus principals through the RIF process, HISDprepared an “Overview of HISD Budget Reduction Timeline and Process for Principals, a “Budget Reduction Guide for End of 2010-2011 School Year” and a “Budget Reduction: Next Step for Principals.” (HISD Ex. 14, Exhibits A and C).
  1. HISD also developed materials entitled “HISD Displaced Employee Support Efforts” to assist those employees affected by the budget cuts in finding open positions within HISD. (HISD Ex. 14, Exhibit B).
  1. In March, 2011, Dr.Allenreceived his resource allocation budget to help him develop his budget for the 2011-12 school year.(Tr. 44; HISD Ex. 6).Included was proposed funding and staffing amounts for HSPVA for the 2011-12 school year. (Tr. 45; HISD Ex.6).
  1. The projected reduction in PUAs and the proposed cuts to HSPVA’s budget necessitated reductions in staff totaling four and a half positions. Dr.Scott received training to help him implement RIF procedure and determine which employees would be subject to the budget cuts. (Tr. 45-46, 144-146; HISD Ex. 14, Exhibits A and C).
  1. Dr.Allenmet with representatives from Human Resources and Budget on March 23, 2011, to determine the staffing budget cuts at HSPVA. He received an HSPVA staffing roster and advised the group of the cuts he felt were necessary to maintain an effective instructional program at the school. (Tr. 46-47).
  1. Social Studies was one of the employment areas subject to the RIFand approved by the Board. Social Studieswas chosen for cuts at HSPVA because each teacher had three conference periods every two days, and Dr.Allenbelieved one teacher position could be eliminated while still adequately covering the current number of classes. (Tr. 48-49; HISD Ex. 13, Exhibits F, G, and H).
  1. The two teachers with social studies’ job code 00031 were considered by Dr.Allen for one of cuts needed at HSPVA. The teachers in job code 00031 were Respondent and SandraJohnson. (Tr. 48; HISD Ex. 7).
  1. Dr.Allenfollowed the criteria for teacher comparisons set forth in Board Policy DFF (Local). The policy sets forth four (4) criteria that are applied sequentially as needed. The first criterion is job code and since both teachers were in the same job code, Dr.Allen proceeded to criterion number two, which was to compare their effectiveness on appraisal records or other written evaluative information. (Tr. 49-50, 63-65, 133-135, 144-146; HISD Ex. 14, Exhibits A and C).
  1. Dr.Allendetermined Ms.Johnson’s appraisals for the last two years were stronger than Respondent’s appraisals, although they were similar. Therefore, he considered other evaluative documentation in their respective files. (Tr. 51-54, 133-136, 144-146; HISD Ex. 8, 9, 11,15).
  1. Dr.Allen’s review of Respondent’s file indicated a number of parent and student complaints about Respondent’s ineffective communication and lack of accessibility and rapport with students. Dr.Allenconsidered this information to be a snapshot of a teacher’s overall effectiveness in a classroom. (Tr. 136-137, 146).
  1. Dr.Allen also reviewedeach teacher’s TAKS scores from the previous year at the time of his decision on March 23, 2011. The current year’s results came in at the end of the year and were not available at the time of the decision. (Tr. 135-136, 142-146; HISD Ex. 15).
  1. After considering the appraisals and other evaluative documents within criterion number 2, “performance,” Dr.Allendetermined Ms.Johnson to be the more effective teacher. Therefore, Respondentwould be the teacher subject to theRIF. (Tr. 54, 133-139; HISD Ex. 8, 9, 11, 15).
  1. Dr.Allen gave Respondent proper notice to attend a conference for the record, held the conference, provided Respondent with a written, summary of the conference, and recommended the nonrenewal of his term contract as a part of the RIF. (Tr. 54-55; HISD Ex. 10, 11, 12).
  1. The Board voted to RIF Respondentat their meeting on April 7, 2011. (Tr.55; HISD Ex. 13, Exhibits K and L).
  1. On April 8, 2011, Dr.Grier gave Respondent notice of the Board’s proposal to nonrenew his contract at the end of the 2010-11 school year as part of the RIF. (HISD Ex. 1, 13(a)).
  1. Up through the date of this hearing, Respondent receivedjobplacementassistancefrom HISDand wasconsideredforavailableteachingpositionsforwhichheiscertified and qualified and for which he meets HISD'sobjectivecriteria. (Tr.158-160).

III. DISCUSSION

Respondent contends HISD improperly nonrenewed his term contract as part of a RIF for two reasons: 1) a program change did not occur and 2) RIF criteria was not properly applied, thereby resulting in an arbitrary and capricious employment decision.

Program Change.

Respondent contends the elimination of a teaching position due to a reorganization of the master schedule without the elimination of specific programs is not a program change. Burton v. Killeen Indep. Sch.Dist., Dkt. No. 053-R2-0511 (Comm’r. Educ. 2011). CitingBurton, Respondent contends Dr.Allen’s decision to nonrenew Respondentwas erroneous because he did not eliminate the entire social studies department.

In Burton, the Commissioner determined a teacher’s term contract was improperly nonrenewed as part of a RIF because the Board failed to follow its policy regarding employment areas affected by a RIF. More specifically, although the Board identified broad employment areas for a program change, it did not specify campuses, subjects or teaching fields. As a result, the teacher’s area of teaching was not properly identified as anapproved employment area subject to a RIF. Id.

However, Burton is distinguishable from this appeal in that HISDidentified specificgrade levels, campuses and subject matter as employment areassubject to theRIF. (HISD Ex. 14, Exhibits A and C). Documentation clearly reflects HISDunambiguously identified HSPVA and its social studies department as employment areas subject to the RIF. (HISD Ex. 13).

Although Board Policy DFF (Local) does provide for the elimination of an entire department, it also provides for a change, modification or reorganization to departments and staffing patterns. (HISD Ex. 13). In a decentralized school district such as HISD, thesedeterminations canbe made by the campus principal, after determining campus needs. Thus,Dr.Allen’s decision to streamline teaching efficiencies at HSPVA by eliminating one teaching position within the social studies department is thoroughly consistent and supported by RIF policy. (Tr. 48-49). Despite Respondent’s contention, Dr.Allenwas not required to eliminate the entire social studies department in order to reduce staff.

Accordingly,HISD’s program changewas proper and included sufficient specific detail regarding employment areas to be covered by a RIF, including Respondent’s campus and teaching area. HISD did not err in its implementation of a program change. (HISD Ex. 13, Exhibit F, G,I).

ArbitrarySelection.

Respondent also contends the decision to propose the nonrenewal of his contract was improper because Dr.Allen arbitrarily created his own sequence of steps rather than follow the required criteria contained in Board Policy DFF (Local).

Board Policy DFF (Local) provides that four criteria, in sequential order, must be used in determining staff reductions. (HISD Ex. 13). The four criteria are job code, performance, seniority and professional background. (HISD 13). However, Respondent contends thatin lieu of applyingRIF criteria,Dr.Alleninstead identified Respondent as the teacher to be RIFFED because “he had to look at somebody” and Respondent “was the one teacher in the social studies department with the most issues requiring administrative attention and time.” (Tr.52, 63). Theexcerpts Respondent relies on to support his contention are not sufficient to persuade this Hearing Examinerthat Dr.Allen did not appropriately apply RIF criteria. Since Respondent provided no other evidence other than his subjective belief that he was identified for nonrenewal prior to the application of RIF criteria, this Hearing Examiner does not find Respondent’s contentionthat RIFcriteria was not appropriately followed to be persuasive.

Instead, the record more accurately reflects that once Dr.Allen determined campus staffing reductions, he appliedthe job code criterion and ascertained both Respondent and Ms.Johnsonto beRIF candidates because they had the same job code. (Tr. 46, 49). Proceeding on to the second criterion,Dr.Allenthen reviewed the overall performanceof the teachers and exercised his discretion and judgment to conclude Ms.Johnsonto be the stronger, more effective teacher. Although Dr.Allen’s decision did take into account other evaluative information contained in Respondent’s file, this information was not considered until the performance criterion was applied. After discussing his decision with his supervising team and receiving their support, Dr.Allen proceeded with RIF implementation. (Tr. 44-48, 50, 53, 64, 77-78).

Dr.Allen did not take lightly his decision to propose the nonrenewal of Respondent’s contract. To the contrary, he understood his decision would impact someone’s life and took seriously his responsibility “to have the most effective person in place.” (Tr. 53). Therefore, Dr.Allen’s thorough review of each teacher’s file suggests a reasonable thought process made in the face of severe budget cuts. Dr.Allencomplied with RIF procedure and properly applied both job code and performance criteria in making his staffing decision.

While it is unfortunate that a talented and experienced teacher such as the Respondent fell victim to the state budgetary crisis, those sentiments do not take away from the fact that Dr. Allen appropriately followed RIF policy and procedure in determining Respondent to be the candidate for nonrenewal. Therefore, this Hearing Examiner finds HISD did establish by a preponderanceof the evidence that a RIF was the only reason to propose the nonrenewal of Respondent’s term contract and, in doing so, properly compliedwith approved Board policies and procedures.

IV. CONCLUSIONS OF LAW

  1. The Hearing Examiner has jurisdiction to hear this case under the Texas Education Code (“TEC”) § 21.251(a)(1).
  1. Respondent was afforded a fair and impartial hearing as prescribed in TEC, Subchapter F.
  1. The preponderance of the evidence in the record supports that the District planned its budget for the 2011-12 school year with a $275 reduction in personnel unit allocation (PUA) to balance the shortfall in funding proposed by the Legislature.
  1. The preponderance of the evidence in the record supports that the HISD Board of Trustees approved the Superintendent’s proposed reduction in force through program change as set forth in HISD Board Policy DFF (Local).
  1. The preponderance of the evidence in the record supports that the HISD Board of Trustees approved the employment areas subject to the reduction in force within the District.
  1. The preponderance of the evidence in the record supports that the HISD Board of Trustees approved the four criteria in HISD Board Policy DFF (Local) in determining the employees affected by its budget cuts.
  1. The preponderance of the evidence in the record supports that the HISD Board of Trustees approved the nonrenewal of JoshuaHill’s employment contract as part of the program change reduction in force at its meeting on April 7, 2011.
  1. The preponderance of the evidence in the record supports that Respondent was given proper notice by the District that his contract of employment would not be renewed at the end of the 2011-12 school year as part of the program change reduction in force approved by the Board.
  1. The preponderance of the evidence in the record supports that Dr.Allen, Principal of HSPVA, followed the criteria in HISD Board Policy DFF (Local) in determining that Respondent would be the teacher in job code 00031 to be RIFFED as part of the program change reduction in force.
  1. The preponderance of the evidence in the record supports that HISD’s nonrenewal of Respondent’s term contract due to a reduction in force complied with its approved policies and procedures.

V. RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is the Recommendation of this Certified Hearing Examiner that the Board’s proposed nonrenewal of JoshuaHill’s term contract be approved, and Respondent’s appeal of such nonrenewal be DENIED.

SIGNED this 1 day of August, 2011.

ThelmaElizalde

Certified Hearing Examiner

1

[1] References to HISD’s exhibits will be designated as “HISD Ex. __.”

[2] References to the transcript will be designated as “Tr. __”.