DOCKET NO. 001-LH-0909
PROGRESO INDEPENDENT § BEFORE FRANCISCO J. ZABARTE
SCHOOL DISTRICT §
§ CERTIFIED HEARING EXAMINER
VS. §
§
OMAR MONGEN § TEXAS EDUCATION AGENCY
RECOMMENDATION OF THE CERTIFIED HEARING EXAMINER
Statement of the Case
Progreso Independent School District, Petitioner, has proposed the termination of Omar Mongen/Respondent’s existing term contract for the 2009-2010 school year pursuant to Texas Education Code Section 21.104(a).
Petitioner is represented by Kevin O’Hanlon, Attorney at Law, O’HANLON, McCOLLOM & DEMERATH, 808 West Avenue, Austin, Texas 78701-2208.
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 probationary teacher pursuant to a contract under Section 21 of the Texas Education Code.
2. By letter dated July 30, 2009, Petitioner was notified of the board's intent to terminate his existing term contract for the 2009-2010 school year pursuant to Progreso ISD Policies, DIL (Local) and Respondent’s contract, Paragraph 3.2.
3. By letter received by the Commission of Education on August 21, 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. The parties mutually agreed to extend the time for recommendation, pursuant to a prehearing conference of on or about September 11, 2009 with the certified hearings examiner, to December 4, 2009 which does not exceed the 105th day after the date on which the Commissioner of Education received Respondent’s request for the assignment of a certified hearings examiner.
5. On September 14, 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.
6. On October 12, 2009, the Petitioner filed a Prehearing Statement pursuant to the Prehearing Conference requesting the Hearing Examiner to take judicial notice under Tex. R. Evid. 201, of the existence of governmental records and the admissibility under Tex. R. Evid. 803 (8) and 901(b)(7) of those records, namely a criminal history data screen on Respondent, the certified arrest record of Respondent and Progreso ISD Board Policies DFAA (Legal) and DH (Local).
7. At the hearing, Progreso ISD introduced without objection the probationary contract signed by Respondent on May 14, 2009 to show that Paragraph 3.2 contains the following language:
The Employee also agrees that, during the term of the Contract, the employee will notify the Superintendent in writing of any arrests, indictments, convictions, no contest or guilty plea, or other adjudication of the Employee for a felony or an offense involving moral turpitude. Employee agrees to provide such notification within seven calendar days or any shorter period specified in the policy of the Board of Trustees (“Board”). Paragraph 3.2, Exhibit No. 1.
8. Respondent stated that he was not aware of the reporting requirement under the Contract but acknowledges that he did not report his arrest within the time frame required in the Contract.
9. Progreso ISD DH (Local) states that an employee shall notify his or her principal or immediate supervisor within three calendar days of any arrest, indictment, conviction, no contest or guilty plea or other adjudication of the employee for any felony or any purpose involving moral turpitude and any of the other offenses as indicated below:
....crimes involving moral turpitude which include: Dishonesty; fraud; deceit; theft; misrepresentation....(Exhibit 4, page 2).
It was admitted without objection.
10. None of the Progreso ISD witnesses including but not limited to Diana Aguilar, Respondent’s principal, Joe Alvarez, Respondent’s Assistant Principal and Lupita Valdez, Secretary for Human Resources were informed by Respondent of his arrest before they found out about it. In fact, Lupita Valdez was notified from the state clearinghouse of the DPS and logged in via prompts to obtain information on the arrest. This occurred on or about June 2, 2009.
11. The DPS clearinghouse information shows that Respondent was arrested for burglary of a habitation, a first degree felony on or about May 30, 2009. Exhibit 5. A certified copy of the Weslaco Police Department, Case No. 09-13332 shows that Respondent was alleged to have entered the home of a relative with force, with intent to commit felony. Exhibit 6.
12. Respondent introduced the state’s motion to dismiss in Cause No. 149659, State of Texas vs. Mongen filed on August 15, 2009. Exhibit 7. This admitted without objections.
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 21.251(a)(2).
2. According to the contract between Petitioner and Respondent, the Contract shall terminate upon good cause as defined by applicable law, including Texas Education Code Section 21.104 and board policy. (Exhibit 1, 8.1.1 Progreso ISD Probationary Contract). DFAA (Legal) states that any probationary contract Employee may be discharged at any time for good cause as determined by the Board (Exhibit 3). It also states that “Good cause” is the failure to meet the expected standards of conduct for the profession as generally recognized and applied in similar situated school districts in the state (Education Code 21.104(a)(Exhibit 3).
3. The issue of whether an employer has good cause to discharge an employee is generally a question of fact, unless the conduct involved and effect on the employer’s business are clear, in which case it is a question of law. Lee-Wright, Inc. vs. Hall, 840 S.W.2d 572, 580 (Tex. App.–Houston [1st Dist.] (1992, no writ). Thus, good cause for discharging an employee is generally defined as the employee’s failure to perform the duties in the scope of employment as a person of ordinary prudence would have done under the same or similar circumstances. Id. That definition is consistent with the definition provided with the Education Code, (Exhibit 3). However, good cause for discharge is also established if the Employee’s actions are inconsistent with the continued existence of the employer-employee relationship. Lee-Wright, Inc. at 580.
4. The district has the burden of proof by a preponderance of the evidence that it has good cause for discharge.
5. The district met its burden of proof.
Discussion
There is no question that the Contract signed by Mr. Mongen and Progreso ISD, and Progreso ISD DH (Local) both place the burden on the Employee to notify the administrator within 7 and 3 calendar days, respectively, if an arrest for felony or an offense involving moral turpitude has been made. Though the Human Resources Director found out the third day after the occurrence through outside sources, she did not find out from Mr. Mongen himself (Transcript Page 27-29). The Superintendent testified that he had not heard of Mr. Mongen’s arrest before the date of the issuance of his letter recommending termination (Transcript Page 19-20). Mr. Mongen’s principal and assistant principal at the time also were not notified according to them (Transcript Page 23 and 26 respectively).
According to the Superintendent, he recommended termination of Mr. Mongen because there was good cause for termination as recognized by teachers in the district and other similar situated school districts for such a violation of the notification requirements/failure to report (Transcript Page 21). Without determining whether or not this is a question of law or fact, good cause for discharging an Employee is defined as the Employee’s failure to perform the duties in the scope of employment as a person of ordinary prudence would have done under the same or similar circumstances (Lee-Wright, Inc. vs. Hall, at 580). Similarly, it is defined by actions which are means for within the Employer-Employee relationship. In this case, though the Examiner sympathizes with Petitioner, Mr. Mongen, and the catch 22 dilemma that he felt he was facing (Transcript Page 31-32), the Examiner believes that the ordinary and prudent educator would have reported the incident to someone in administration. It is difficult for the Examiner to understand how Mr. Mongen can on the one hand state that he was scared as a reason for not reporting while at the same time state that he did not read the Contract and that was the reason for not reporting. Neither reason is actually an acceptable excuse that a reasonably prudent educator would use under the circumstances.
The fact that the crime alleged to have occurred was eventually dismissed (Exhibit 7, Transcript Page 36), along with the undisputed fact that he has been considered by his Employers as a qualified and good teacher (Transcript Page 34), are not the issues at hand. The failure to report is the issue at hand. The facts and explanations provided by Mr. Mongen simply do not overcome the reporting requirements established not only through the employment Contract but also by law. Therefore, Mr. Mongen’s actions after the occurrence do not overcome good cause as established by the Superintendent and his witnesses for Mr. Mongen’s failure to report.
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 Progreso Independent School District adopt the foregoing Findings of Fact and Conclusions of Law and enter an order consistent therewith.
SIGNED AND ISSUED this 6th day of November, 2009.
______Francisco J. Zabarte,
Certified Hearings Examiner
Copies to:
Kevin O’Hanlon, 808 West Avenue, Austin, Texas 78701-2208
Jose G. Vela, President, P.O. Box 610, Progreso, Texas 78579-0610
Isabel Lozoria, 1701 North Congress Avenue, Austin, Texas 78701
Omar Mongen, 905 E. Filmore Avenue, Harlingen, Texas 78550
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