Docket No. 163-LH-803

LA POYNOR ISD'BEFORE KARL R. QUEBE

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VS.'CERTIFIED HEARING EXAMINER

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LARRY RANDY MARTIN'TEXAS EDUCATION AGENCY

RECOMMENDATION OF HEARING EXAMINER

Statement of the Case

The teacher, Larry Randy Martin, appeals the proposal of LaPoynor ISD to terminate his term contract, and the District’s decision to suspend him, without pay, pending final resolution of the termination proceedings. On August 6, 2003, the teacher filed his written request for a hearing before a Texas Education Agency Certified Hearing Examiner. Karl R. Quebe was appointed by the Texas Education Agency to conduct the hearing. The parties waived the statutory request to complete the proceedings within 45 days.

Onthe 21st and 29th days of January, 2004, the Certified Hearing Examiner heard the above-referenced matter. At the hearing, both parties appeared and announced ready to proceed. Petitioner, LaPoynor Independent School District (ALaPoynor@) appeared through its counsel of record, Randall J. Cook, and its superintendent, Eugene Buford. Respondent, Larry Randy Martin (AMartin@), appeared pro se.

Findings of Fact

After due consideration of the evidence and maters officially noticed, in my capacity as Certified Hearing Examiner, I make the following Findings of Fact (citations to evidence are no exhaustive, but rather illustrative of the bases for various Findings of Fact):

  1. Martin signed a contract with LaPoynor ISD in July, 2002. (PX 1)
  1. Martin’s contract was probationary. (stipulated)
  1. Martin taught at LaPoynor ISD during the 2002-2003 school year without incident.
  1. Martin’s contract was automatically renewed in the spring of 2003. (stipulated)
  1. Martin had taught, in Texas, for five of the previous eight years. (stipulated)
  1. By operation of law, the probationary contract was renewed as a term contract, under the same terms as his initial contract, for the 2003-2004 school year. (stipulated)
  1. In the spring of 2003, LaPoynor’s Board of Trustees voted to renew Martin’s contract.
  1. No written contract was ever issued.
  1. In April, 2003, while checking the SBEC website, LaPoynor discovered Martin’s teaching certification was under review. (PX 17, p. 17 (FOF #16)
  1. Superintendent, Eugene Buford, advised Martin that he would not be hired, and no contract would be tendered until the Whitehouse ISD and/or certification issue was resolved. (1 Tr. 48, 54.)
  1. Martin performed no services for the district during the 2003-2004 school year.
  1. LaPoynor ISD later discovered that Martin had most recently worked for Whitehouse ISD, and had been convicted of a crime relating to his Whitehouse teaching duties.
  1. During the initial hiring process, Martin signed a consent for criminal history check.
  1. La Poynor submitted Martin=s signed criminal history check form to the Texas Department of Public Safety which returned the completed report showing no criminal history for Martin. (PX 12; 1 Tr. 27-28.)
  1. Martin, in the July, 2002 contract, represented to LaPoynor that he had made written disclosure of any conviction for a felony or an offense involving moral turpitude. (PX 1; 1 Tr. 21-22.)
  1. That representation was false because Martin did not disclose to LaPoynor in writing that he had been convicted in September 27, 2001, by the Smith County Court at Law No. 3 in Cause No. 003-81590-01 of False Report to Police, a class B misdemeanor and sentenced to two years of community service and four days in the Smith County jail. (PX 15; 1 Tr. 28-31.)
  1. LaPoynor was unaware of the prior conviction.
  1. Although LaPoynor administrators specifically asked Martin about the SBEC investigation, Martin failed to disclose his prior criminal conviction. (PX17; FOF 17, p. 17)
  1. Larry Randy Martin (AMartin@) interviewed with the LaPoynor site based committee for a science teaching position during July, 2002. (1 Tr. 36; 182.)
  1. Martin=s resume, upon which the La Poynor interview was based, listed Palestine ISD as his last place of employment and did not include any teaching information after May 2000, make any mention of Whitehouse Independent School District, or list any Whitehouse ISD employment references. (PX 9.)
  1. During the interview process, when asked what he had been doing since his retirement from Palestine ISD, Martin replied that he had been trading horses. (1 Tr. 183; 2 Tr. 102, 127,138.)
  1. Martin had been employed by Whitehouse ISD for the 2000-2001 school year.
  1. Martin was suspended from Whitehouse in January 2001, and his probationary contract at Whitehouse was not renewed at the end of his probationary year because he filed a false report with police regarding an incident involving a student. (PX 13; PX 14; 1 Tr. 31, 40-41.)
  1. Martin failed to disclose either his employment by Whitehouse ISD, or his non-renewal by Whitehouse ISD. (1 Tr. 40-41, 183; 2 Tr. 102, 127,138.)
  1. Martin=s most recent teaching experience was material to LaPoynor=s hiring decision because the site based committee would not have recommended his employment had it known that Martin=s probationary contract at Whitehouse was terminated. (1 Tr. 186.)
  1. The site based committee, unaware of the conviction, and unaware of the Whitehouse ISD employment and non-renewal, recommended to the LaPoynor Superintendent, Eugene Buford, that Martin be hired. (1 Tr. 19, 185-186, 217-221.)
  1. Mr. Buford accepted the committee=s recommendation, made a similar recommendation to the La Poynor Board of Trustees, and as a result, Martin was initially hired. (1 Tr. 19.)
  1. When Superintendent, Eugene Buford, confronted Martin about the teaching certificate issue, Martin represented to Buford that he was innocent of the Whitehouse incident, that the witnesses would recant their stories, and that he would be vindicated of the criminal offense conviction (1 Tr. 42; PX 15.)
  1. Martin represented to the LaPoynor ISD Board of Trustees in July 2003 that he had filed a grievance against the Whitehouse ISD administration and that the Whitehouse ISD Board embarrassed that administration by reversing their decision on his grievance when in fact the Whitehouse ISD Board of Trustees affirmed the Whitehouse ISD administration in grievances filed by Martin (1 Tr. 42-46.)
  1. Martin sought and obtained letters of recommendation to SBEC from LaPoynor administrators knowing that LaPoynor ISD was not aware that he had been employed and terminated from Whitehouse ISD, andthat LaPoynor ISD was not aware that he had been convicted of filing a false report to police regarding a former student. (1 Tr. 46-47, 258, 278-280.)
  1. Martin deceived LaPoynor administrators into thinking that he was not responsible for delays in the SBEC proceedings during the spring and summer of 2003 when in fact Martin had requested all of the continuances of that proceeding. (1 Tr. 48-49.)
  1. Martin’s teaching certificate was revoked by the State Board of Education on January 9, 2004. (PX 17.)
  1. The State Board of Education’s decision to revoke Martin’s certificate is supported by findings of fact which findings of fact are incorporated here by this reference as if set forth at length. (PX 17.)
  2. SBEC found that Martin does not possess high ethical standards, is not honest and forthright, is unworthy to instruct the youth of the State of Texas, and is not fit to be certified as an educator. (PX 17.)
  3. Dishonesty by a teacher is inconsistent with the continuation of the employment relationship. (1 Tr. 50-51; 186-187.)
  4. Dishonesty by a teacher is contrary to the standards of conduct for teachers in LaPoynor and similarly situated school districts in Texas. (1 Tr. 50-51, 186-187.)
  5. The revocation of Martin’s teaching certificate constitutes good cause to terminate the teacher’s contract.
  6. Martin’s dishonesty during the hiring process, constitutes good cause to suspend Martin without pay prior to the date his certificate was terminated.

DISCUSSION

Petitioner was employed under a one year probationary contract for the 2002-2003 school year. The contract was automatically renewed, under the same terms at the end of the 2002-2003 school year. The school board voted to rehire Martin for the 2003-2004 school year. Subsequent to this decision, the school district determined that Mr. Martin’s teaching certificate was under review by SBEC. Martin advised school district personnel that the charges against him were bogus, that the students’ stories would be recanted, and that he would be vindicated. Petitioner sought and received letters of recommendation from LaPoynor personnel for presentation at the SBEC hearing.

Petitioner was advised that his employment depended on the results of the teacher certification issue, and that he could not be hired, nor perform any duties until this teaching certificate matter was satisfactorily resolved. The school district subsequently discovered, in connection with the SBEC proceedings, that Petitioner had failed to disclose his previous employment at the Whitehouse ISD, had failed to disclose the non-renewal of his teaching contract with Whitehouse ISD, and failed to disclose that he had been convicted of a crime involving moral turpitude while teaching at the Whitehouse ISD. Petitioner requested a hearing, pursuant to the Texas Education Code, and was provided written notification of the proposed reasons for termination by the school district.

Petitioner contends that he has not been afforded due process due to the failure of the school district to provide him with written notification of the proposed termination and suspension prior to his request for a hearing. Petitioner also seeks compensation for services as a teacher, at least up until the date of the loss of his teaching certificate. Respondent argues that Petitioner fraudulently obtained employment due to his failure to disclose material facts as described above, and having procured his teaching contract by fraud, cannot claim its benefits, and accordingly, is not entitled to compensation for the period of time up to the revocation of Petitioner’s teaching certificate on January 9, 2004.

Findings of Fact and Conclusions of LawPage 1

It is well established that teachers under term contracts have property rights, which entitle them to due process of law. The Fifth Circuit, in Ferguson v. Thomas (5th Circuit 1970) stated that in a dismissal for cause action a teacher must at a minimum:

“1. Be advised of the cause or causes of the termination in sufficient detail to fairly enable him or her to show any error that may exist.

2. Be advised of the names and the nature of the testimony of witnesses against her or him.

3. At a reasonable time after such advice, be given a meaningful opportunity to be heard in his or her own defense.

4. Be given an opportunity for hearing before a tribunal that both possesses some academic expertise and has an apparent impartiality toward the charges.”

In this instance, the teacher was advised of the cause of his suspension from duties, and of the proposed termination. The initial information was provided orally, and followed up, in writing, prior to the hearing. The teacher was then afforded a fully evidentiary hearing, in this proceeding. We note that the Texas legislature has required written notice of a discharge, suspension without pay or release due to reduction in personnel in the case of a continuing contract (Texas Education Code § 21.158 (a). Similarly, § 21.206 (a) of the Education Code requires written notice of a term contract non-renewal. On the other hand, § 21.211 of the Code provides that the Board of Trustees may terminate a term contract and discharge a teacher at any time for good cause as determined by the Board (§ 21.211(a)(1)). Section 21.211 (b) also authorizes the Board of Trustees to suspend the teacher without pay for a period not to extend beyond the end of the school year. There is no requirement of advance written notice under this section. Subchapter F, in particular, § 21.251 establishes that the hearing examiner process applies if the teacher requests a hearing after receiving notice of the proposed decision to terminate the probationary or term contract before the end of the contract period. Again, there is no requirement of written notice of the proposed decision to terminate.

Although § 21.253 establishes a deadline for the teacher to file a written request for a hearing, not later than the 15th day after the date the teacher receives written notice of the proposed action, we find no previous statutory requirement that the district provide such written notice of proposed termination. In the case at bar, § 21.253 would have merely provided Petitioner with additional time to request a hearing pursuant to this subchapter.

The acts, conduct, and behavior of Martin, as outlined in the above findings of fact, constitute good cause to terminate Martin=s contract of employment with LaPoynor. See Finocchi v. Dallas ISD; Docket No. 295-R2-693 (Tex. Comm=r Educ., 1996)(A school district has good cause to terminate a teacher who knowingly falsified his application and made false statements when he applied for employment with the District); Askew v. Desoto ISD; Docket No. 014-R2-1202 (Tex. Comm=r Educ., 2003)(A school district has good cause to terminate a teacher who is dishonest and an opportunity for remediation is not required); Gibson v. Tatum ISD; Docket No. 040-R2-1099 (Tex. Comm=r Educ., 1999)(A school district has good cause to terminate the employment of a teacher who lies during an investigation which is per se grounds for termination); Duffy v. Houston ISD; Docket No. 204-TTC-697 (Tex. Comm=r Educ., 1997)(A school district has good cause to terminate the employment of a teacher who lies about student conduct).

The acts, conduct, and behavior of Martin, as outlined in the above findings of fact, constitute good cause to suspend without pay Martin employment with LaPoynor pending termination. Id.

The acts, conduct, and behavior of Martin, as outlined in the above findings of fact, demonstrate that Larry Randy Martin fraudulently induced LaPoynor ISD to enter into the parties= employment relationship. See DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 688 (Tex. 1990), cert. denied, 498 U.S. 1048 (1991); Bal-Fel, Inc. v. Boyd, 503 S.W.2d 673, 677 (Tex. Civ. App.--Austin 1973, no writ); Calloway v. Manion, 572 F.2d 1033, 1039 (5th Cir. [Tex.] 1978); Hunter v. Camp, 246 S.W.2d 903, 904 (Tex. Civ. App.--Waco 1952, ref. n.r.e.).

Fraud vitiates everything it touches making the parties= employment contract is voidable at LaPoynor=s insistence. See e.g., Formosa Plastics Corp. USA v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 46 (Tex. 1998); Distributors Inv. Co. v. Patton, 130 Tex. 449, 110 S.W.2d 47 (1937), overruled in part on other gnds, 158 Tex. 1, 307 S.W.2d 233; Cox v. Upjohn Co., 913 S.w.2d 225 (Tex. App.BDallas 1993, no writ); Voskamp v. Arnoldy, 749 S.W.2d 113 (Tex. App.BHouston [1st Dist.] 1987, writ denied); Edward Thompson Co. v. Sawyers, 111 Tex. 374, 234 S.W.2d 873 (1921); U.S. v. Texarkana Trawlers, 846 F.2d 297, 304 (5th Cir. [Tex.] 1988).

The uncontroverted evidence presented before the hearing examiner was that petitioner was not certified, and that his teaching certificate was revoked in January, 2004. Numerous decisions of both the courts and the commissioner have established that “there can be no contract if a teacher does not have a valid teaching certificate.” Swanson v. Houston ISD 800 S.W. 2d 630, 634 (Tex. App.-Houston 1990 [14th Dist.] writ denied). See also Barnes v. Port Arthur ISD, Docket No. 110-R2-802 (Comm’r Educ. 2002) and Flowers v. Port Arthur ISD, Docket No. 088-R1-703 (Comm’r educ. 2003).

The teacher obtained his employment contract with LaPoynor ISD as a result of a material failure to disclose relevant information, including his conviction for a crime involving moral turpitude; the teacher performed no services for the district subsequent to the end of the 2002-2003 school year; and, the teacher’s employment contract is void as a matter of law. Accordingly, the school district’s suspension of the teacher without pay, and termination of the term contract are fully justified.

CONCLUSIONS OF LAW

  1. The hearing examiner has jurisdiction of this subject matter pursuant to Ch. 21, Subchapter F, §§ 21.251(a)(1), and 21.251 (a)(3) of the Texas Education Code.
  1. The Board of Trustees may terminate a term contract and discharge a teacher at any time for good cause as determined by the Board. Texas Education Code § 21.211(a)(1)
  1. LaPoynor ISD Policy DC(legal) provides that the “district may discharge an employee if the district obtains information of the employee’s conviction of a felony or misdemeanor involving moral turpitude that the employee did not disclose to the SBEC or to the district....”
  1. The offense of filing a false report to police involves dishonesty and is an offense that involves moral turpitude. Lape v. State, 893 S.W.2d 949 (Tex. App.BHouston [14th Dist.] 1994, pet. ref=d).
  1. For good cause, as determined by the Board, the Board of Trustees may suspend a teacher without pay pending discharge of the teacher. Texas Education Code § 21.41(b)(1).
  1. LaPoynor ISD Policy DFBA (legal) provides for suspension without pay for good cause as determined by the Board.
  1. LaPoynor was authorized to suspend Martin without pay pending the outcome of this termination hearing. Tex. Educ. Code Ann.' 21.211(b).
  1. Martin’s conduct in failing to disclose his prior employment, failing to disclose his non-renewal from his previous employment, and failure to disclose previous criminal conviction, involving moral turpitude, fraudulently induced LaPoynor ISD to enter into the parties’ employment relationship.
  1. As a result of the fraudulent inducement, the employment contract is voidable at the insistence of LaPoynor ISD.
  1. Martin’s contract is void, as a matter of law, due to his loss of valid certification. Flowers v. Port Arthur Independent School District, Docket No. 088-R1-703 (Comm’r Educ. 2003); Barnes v. Port Arthur Independent School District, Docket No. 110-R2-802 (Comm’r Educ. 2002). Swanson v. Houston Independent School District, 800 S.W. 2d 630, 634 (Tex. App.-Houston 1990 [14th Dist.] writ denied).
  1. There is no statutory or common law requirement that written notice precede a District’s proposed suspension of a term contract teacher without pay, for cause.
  1. Martin has been afforded due process of law.

RECOMMENDATION

After due consideration of the evidence, the argument of counsel, and the law, the undersigned examiner recommends:

That the proposal to suspend the teacher without pay, and to terminate the employment contract be adopted by the Board of Trustees.

SIGNED and ISSUED the 7thday of April, 2004.

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Karl R. Quebe, Certified Hearing Examiner

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