DOCKET NO. 006-R DEIRDRE FIELDS BEFORE THE V. COMMISSIONER OF EDUCATION ALIEF INDEPENDENT SCHOOL DISTRICT THE STATE OF TEXAS

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1 DOCKET NO. 006-R DEIRDRE FIELDS BEFORE THE V. COMMISSIONER OF EDUCATION ALIEF INDEPENDENT SCHOOL DISTRICT THE STATE OF TEXAS DECISION OF THE COMMISSIONER Statement of the Case Petitioner, Deirdre Fields, complains of actions and decisions of Respondent, Alief Independent School District. Christopher Maska is the Administrative Law Judge appointed by the Commissioner of Education to hear this cause. Petitioner is represented by Christopher L. Tritico, Attorney at Law, Houston, Texas. Respondent is represented by J. Erik Nichols and Caitlin H. Sewell, Attorneys at Law, Houston, Texas. The Administrative Law Judge issued a Proposal for Decision recommending that Petitioner s appeal be granted in part. Exceptions and replies were timely filed and considered. This central issue in this case is whether Petitioner was employed under a chapter 21 term contract. Respondent ended Petitioner s contract at the end of the contract s term without going through the procedures for nonrenewing a term contract under Texas Education Code chapter 21, subchapter E. If Petitioner was employed under a chapter 21 term contract for the school year, Respondent would be required to employ Petitioner in the same professional capacity for the school year. Petitioner was employed under an Administrator Term Contract for the school year. As Petitioner did not serve as a superintendent, principal, or assistant principal, school counselor, or nurse for the school year, Respondent was not 006-R

2 required to employ Petitioner under a chapter 21 term contract because Petitioner was not employed in one of the named positions referenced in the relevant definition of teacher. Further, the State Board for Educator Certification only requires those employed in the named positions to hold certificates in order to be employed by a school district. However, school districts can employ individuals under chapter 21 term contracts even when they are not required to. The definition of teacher for term contracts is met in this case for two reasons. The first reason is that Petitioner is a full-time professional employee who is required to hold a certificate under Subchapter B. If a school district by contract requires an employee to hold such a certificate, the employee is entitled to a chapter 21 term contract. The second reason is that Petitioner s contract requires that she be employed under a term contract. If a school district decides to employ an individual under a chapter 21 term contract, that contract is a chapter 21 term contract. Because Respondent did not properly end Petitioner s chapter 21 term contract, Respondent is required to employ Petitioner in the same professional capacity for the school year. Findings of Fact After due consideration of the record and matters officially noticed, it is concluded that the following Findings of Fact are supported by substantial evidence in the local record and are the Findings of Fact that can best support Respondent s Decision Petitioner and Respondent properly executed the following document: ALIEF INDEPENDENT SCHOOL DISTRICT ADMINISTRATOR TERM CONTRACT State of Texas Date given Employee April 2013 County of Harris Date Returned by Employee April TEX. ADMIN. CODE (h). 006-R

3 The Board of Trustees of Alief Independent School District (hereafter referred to as Employer ) hereby employees FIELDS, DEIRDRE D (hereafter Employee ) in the position of administrator subject to the following terms and conditions: 1. The Administrator shall begin in the discharge of duties under this contract on July 1, 2013, and shall be required continuously attend to the required duties for one year or to June 30, 2014 with such holidays, intermissions, and vacations as they exist or may hereafter be amended by action of the Board of Trustees and/or legislative/court action. It is understood that the annual service which shall be required under this contract shall be for 220 days as per the contract days for professional personnel calendar. 2. Employer agrees to pay employee for the services rendered an annual salary in accordance with Alief Independent School District s salary schedule as adopted by Employer. The salary shall be paid twice per month. 3. This contract is conditioned on Employee satisfactorily providing the credentials, and other records required by law, the Texas Education Agency or this school district. Misrepresentation by the Employee in or concerning these records or employment application constitutes good cause for discharge. 4. Employee shall be subject to assignment and reassignment, by the General Superintendent and his or her designees of positions, duties, work site location, title, transfer, additional duties, responsibilities, or classification at any time during the contract term. 5. Employee shall comply with state and federal law, the Alief Independent School District policies, rules, regulations and administrative directives, as they exist or may hereafter be amended, which are incorporated herein by reference. Employee shall perform the duties assigned. 6. Employer may dismiss Employee during the term of this contract for good cause, as determined by the employer or for any other standard as may be promulgated by the legislature or hereafter amended. 7. Employment in federally or categorically funded positions is expressly conditioned upon the available full funding for the position and the cessation of such funding constitutes good cause for discharge. Additionally, a lack of full funding for any position may be good cause for discharge. 8. There is no right of tenure, contractual obligation, expectancy of continued employment, property interest or claim of entitlement beyond the contract term. 9. This contract is subject to all federal and state laws, rules and regulations. Invalidity of any portion of this contract shall not affect the validity of the remainder of the contract. 10. The parties agree that this contract combines all prior agreements and representations concerning employment of this Employee. All previous contracts are superseded or terminated and are of no force or effect. 006-R

4 11. Employee may be released from this contract before the end of the contract period only with the written consent of Employer or General Superintendent. 12. The Board has authorized the General Superintendent to execute this contract. Delivery of this Contract constitutes an offer of employment which expires and is void unless this contract is signed and returned to the Human Resources Department on or before May 15, Failure to return the signed contact on or before the date shall constitute a rejection of the employment offer and any current employment may terminate at the end of any existing contract term. 2. Petitioner executed the following document on October 27, 2010: TITLE: Special Education Instructional Coordinator THIS IS A FEDERALLY FUNDED POSITION. CONTINUATION IS CONTINGENT UPON AVAILABILITY OF FUNDING. Qualifications: Supervisory/Mid-Management/Principalship Certification (or current equivalent as set by State Board for Educator Certification) Master s Degree Five (5) years of successful experience as a Special Education (SE) teacher Effective Communication, human relations and leadership skills Previous experience in SE Administration or as Team Leader/ Department Chair Primary Purpose: To provide leadership in the planning, implementation, and evaluation of SE services Reports to: Director of Special Education (DSE) PERFORMANCE RESPONSIBILITIES: Assists building principals, counselors, and the Administration, Review and Dismissal (ARD) in the educational placement of refereed students with disabilities and advises building ARD Committees in their deliberations. Confers and offers assistance with the department heads, lead teachers, administrators, regularly. Receives inquiries from prospective parents and others re; district/special education services. Observes students to make recommendations for changes in educational program. Serves as consultant to SE teachers in curriculum and/or classroom management matters; recommends appropriate teaching strategies; assists in development and implementation of Individual Education Plans. 006-R

5 Develops and/or improves required documents and forms for Special Education students. Participates in the development of SE division budgeting, including recommendations for new programs, materials and related services. Plans and conducts regular visits to assigned schools and is available to those schools. Assists new SE teachers through conferences, demonstrations, modeling and support as needed. Observes teachers at assigned schools; provides feedback/recommendations to teachers/campus administrators. Evaluates the performance of teachers/therapists/paraprofessionals as assigned by the DSE. Supervises the maintenance and improvement of central student audit file system. Assist in the formulation of an effective professional development program for teachers of special and regular education and for special education paraprofessionals. Assists the PR Department and DSE with the writing/revising of brochures/pamphlets describing SE programs. Continues professional knowledge and skills relating to special program development and implementation, instruction strategies, ad materials via participation in workshops, conferences, etc. Performs other duties as assigned by the DSE. 3. Respondent did not propose the nonrenewal of Petitioner s Administrator Term Contract for the school year. Discussion The parties dispute whether Petitioner was entitled to a chapter 21 term contract. The position Petitioner holds is not a position for which a district must employ an individual under a chapter 21 term contract. The question to be decided is: did Respondent by contract or policy give Petitioner a chapter 21 term contract? Term Contract The phrase term contract could be used to mean any contract for a certain period. However, Texas Education Code section (3) defines term contract to mean any contract for a fixed term between a school district and a teacher. This same section also specifies the definition of teacher for purposes of chapter 21, subchapter E to be: 006-R

6 a superintendent, principal, supervisor, classroom teacher, school counselor, or other full-time professional employee who is required to hold a certificate issued under Subchapter B or a nurse. The term does not include a person who is not entitled to a probationary, continuing, or term contract under Section , an existing contract, or district policy. The first sentence of this definition includes individuals such as nurses that one would not normally think of as teachers. As Petitioner was employed as a Special Education Instruction Coordinator she does not hold any of the named positions in the first sentence of the definition. However, whether Petitioner is an employee required to hold a certificate under Subchapter B is not so easily answered. The Commissioner has held that when a school district requires an employee to be certified under subchapter B, that individual must be given a term contract. Smith v. Zapata Independent School District, Docket No. 088-R2-498 (Comm r Educ. 1999) aff d on other grounds Smith v. Alanis, 2002 Tex. App. LEXIS 5437 (Tex. App.-Austin 2002, no pet.). The parties dispute whether Respondent required Petitioner to hold a certificate issued by the State Board for Educator Certification. The second sentence of this definition could be clearer. However, it should be construed to mean one is not entitled to a chapter 21 term contract, unless one is entitled to such by Texas Education Code section , a contract, or school policy. Harris v. Royce City Independent School District, Docket No. 057-R (Comm r Educ. 2009). This provision allows a school district to hire an individual, even an individual who has no certificate, under a term contract. However, Petitioner holds a mid-management certificate. The ultimate issue in this case is whether Respondent by policy or contract required Petitioner to hold a mid-management certificate. Policy Petitioner maintains that Respondent s current policy DCB(Local) required Respondent to employ her under a term contract. While the parties dispute the proper interpretation of the current version of policy DCB(Local), this issue need not be resolved. The current version of DCB(Local) is not in the local record. A portion of an 006-R

7 earlier version of policy DCB(Local) is in the local record, but this portion does not contain the language which Petitioner relies upon. Respondent did not by policy require Petitioner to be employed under a term contract. Contract Petitioner and Respondent both signed a document entitled ADMINISTRATOR TERM CONTRACT for the school year. This document does not explicitly create a chapter 21 term contract, but it also does not create an employment relationship that is incompatible with a chapter 21 term contract. Further, paragraph three of the document provides: This contract is conditioned on Employee satisfactorily providing the credentials, and other records required by law, the Texas Education Agency or this school district. The Administrator Term Contract itself requires Petitioner to provide credentials if they are required by Respondent. According to Petitioner s job description, a qualification for Petitioner s job is that Petitioner a hold supervisor, principal, or mid-management certificate or the current equivalent. Petitioner holds a mid-management certificate, which is a certificate that was issued by the State Board for Educator Certification under subchapter B of chapter However, the parties dispute the meaning of the term qualification. Qualification Respondent contends that it does not require Petitioner to hold a certificate issued by the State Board for Educator Certification. It argues that when the job description lists qualification, it is only listing desired qualifications, not required qualifications. The word qualification is defined in relevant part as: 2 While the State Board for Educator Certification no longer issues new mid-management certificates, previously earned mid-management certificates are still recognized and may be used as a recognized credential for holding the position of principal. 19 TEX. ADMIN. CODE R

8 3 a : a quality or skill that fits a person (as for an office) <the applicant with the best ~s> b : a condition or standard that must be complied with (as for the attainment of a privilege < a ~ for membership> Meriam Webster s Collegiate Dictionary, 10 th ed., p Whether Petitioner was required to hold a certificate issued by the State Board for Educator Certification turns on which definition is used. Construing Contracts The Texas Supreme Court has held: It is well-established law that where an ambiguity exists in a contract, the contract language will be construed strictly against the party who drafted it since the drafter is responsible for the language used. See Republic National Bank v. Northwest National Bank, 578 S.W.2d 109 (Tex. 1978). Gonzalez v. Mission Am. Ins. Co., 795 S.W.2d 734, 737 (Tex. 1990). Hence, the term qualification is construed against the drafter. For this reason, the term qualification as used in the job description means a condition or standard that must be complied with (as for the attainment of a privilege < a ~ for membership>. As Respondent required Petitioner to hold a certification issued by the State Board for Educator Certification, Petitioner s contract is a chapter 21 term contract. As Respondent did not propose the nonrenewal of Petitioner s term contract, Respondent is required to employ Petitioner in the same professional capacity for the school year. TEX. EDUC. CODE (b). Is the Job Description a Contract? Respondent contends that the job description is not a part of Petitioner s Administrator Term Contract. Respondent notes that the job description was signed by Petitioner on October 27, 2010 and that her contract specifies that this contract combines all prior agreements and representations concerning employment of this Employee. L.R. K-3. Hence, the argument goes that because the job description was a part of the contract, it cannot be part of the contract. While the integration clause certainly means that portions of previous contracts do not 006-R

9 automatically become part of the contract, it does not mean that portions of previous contracts cannot become part of the contract. The contract has broad language requiring Petitioner to provide certification if such is required by Respondent. The question becomes did Respondent require Petitioner to hold a certification during the contract. Applying the substantial evidence standard and recognizing that Petitioner had the burden of proof at the local level, it is determined that Petitioner was contractually required to be certified for the school year. Respondent recognized that Petitioner held the position of Special Education Instructional Coordinator during the school year. L.R. F. The job description for Special Education Instructional Coordinator signed on October 27, 2010 is also recognized by Respondent as being of continuing validity by the Level II Decision. L.R. D. The local record contains no evidence that calls these determinations into question. In fact, the Administrations Response to Dr. Deirdre Field s Level III Grievance maintains that Petitioner is not entitled to a chapter 21 contract under an existing contract because the contract document does not reference chapter 21 and because the contract specifies that Petitioner has no right to further employment. It does not contest that Petitioner is required to be certified. The job description is a part of Petitioner s contract. Respondent could have taken action against Petitioner s Administrator Term Contract without following the chapter 21 requirements, if Petitioner were not certified. However, the requirement to be certified is a part of Petitioner s contract. No Mention of Chapter 21 Respondent contends that the Administrator Term Contract cannot be a chapter 21 contract because it does not mention chapter 21. As discussed supra, a term contract is a chapter 21 term contract if the employee is required to hold a certificate issued by the State Board for Educator Certification. TEX. EDUC. CODE (2). A school district can employ a teacher under a chapter 21 term contract even if the contract document does 006-R

10 not mention chapter 21. This is so because statutes that exist when a contract is entered into are incorporated into the contract. Central Education Agency v. George West Indep. Sch. Dist., 783 S.W.2d 200, 201 (Tex. 1989). When Respondent and Petitioner executed the contract, Texas Education Code section (2) was incorporated into the contract. But it should be noted that the contract at issue contains no provisions that conflicts with a holding that the contract is a chapter 21 term contract. Paragraph 8 of the contract reads: There is no right of tenure, contractual obligation, expectancy of continued employment, property interest or claim of entitlement beyond the contract term. However, this is but a paraphrase of Texas Education Code section (e) which reads, A teacher does not have a property interest in a contract beyond its term. Petitioner s contract is a chapter 21 term contract. Similar Position In the case of Hightower v. State Comm r of Educ., 778 S.W.2d 595, 598 (Tex. App.-Austin 1989, no writ), the Austin Court in construing the definition of teacher for term contracts that existed at the time ruled that applying the doctrine of ejusdem generis led to the conclusion that an other full-time professional employee must be an employee who had a job that was similar to the other listed positions. The court concluded that such an other full-time professional employee in order to receive a chapter 21 term contract must have regular contact with students, supervise those who have regular contract with students, or... [have] control over student curriculum. Id. Assuming without finding that this analysis is still appropriate because there have been significant changes to the definition of teacher since the court issued its decision, it is concluded that Petitioner meets the standards set out in Hightower. The job description sets out duties for Petitioner in all three areas identified by the court. Further, the Level I/II response makes clear that Petitioner currently was responsible for evaluation of teacher/therapists and paraprofessionals. Since such individuals have regular contact 006-R

11 with students, Petitioner s actual duties during the school year meet the Hightower standards. Remedy Texas Education Code section (b) provides the remedy for when a school district fails to nonrenew a chapter 21 term contract. The remedy is that the district is required to employ the teacher in the same professional capacity for the following school year. This would include payment for the time the teacher was not working because the district wrongly believed that it had ended the teacher s employment. However, just what type of contractual relationship the teacher will have with the school district is not certain when the chapter 21 term contract is a permissive term contract. Harris v. Royse City Independent School District, Docket No (Comm r Educ. 2009). Because it is uncertain whether or not Respondent will be required to employ Petitioner under a chapter 21 term contract for the school year, employment under a chapter 21 term contract will not be ordered. Conclusion As Respondent required Petitioner to hold a certificate issued by the State Board of Educator Certification for the school year, Petitioner s Administrator Term Contract is a chapter 21 term contract. As Respondent did not nonrenew Petitioner s term contract, Respondent is required to employ Petitioner in the same professional capacity for the school year. Reply to Exceptions to the proposal for Decision Both parties have filed Exceptions to the Proposal for Decision. Some of the arguments will be addressed herein. Incorporation Respondent contends that Petitioner s job description could not be incorporated into her contact as In re Deepwater Horizon, 2015 LEXIS 141, *15-16 (Tex. Feb.13, 2015) allows the incorporation of an external document into the contract if the written 006-R

12 agreement clearly manifests an intent to include the [document] as a part of the [contract]. However, the standards set forth in that case are standards for incorporation in insurance contracts. As the case before the Commissioner does not concern an insurance contract, In re Deepwater Horizon s incorporation holding does not apply. But even if it did apply, it would not avail Respondent. Paragraph 5 of Petitioner s Administrator Term Contract specifies that Respondent s policies, rules, regulations and administrative directives are incorporated into the contract. The job description is an administrative directive. It comes from the administration and it serves to direct the work Petitioner is to perform. Further, not only does the Level II decision affirm the continuing validity of Petitioner s job description, but also Respondent s board affirmed the Level II decision. LR H. Even if the job description were not incorporated into Petitioner s contract, it at least memorializes Respondent s requirement that Petitioner is required to hold a certification issued by the State Board of Educator Certification. Because Respondent required certification, Petitioner s Administrator Term Contract is a chapter 21 term contract. Ambush Respondent declares that Petitioner ambushed the administration by waiting to level III to make her arguments about why her contract was a chapter 21 contract. While the issue of the improper nonrenewal of Petitioner s contract was not in the original grievance, it was in the Amended Grievance. On April 4, 2014, Petitioner was informed that Respondent would not offer her a contract for the school year. Within seven days of that notice, Petitioner amended her grievance to include the claim that the nonrenewal of her contract was improper and that she was entitled to the renewal of her contract for the school year. Respondent contends that Petitioner failed to make the argument that she had a chapter 21 contract because her job description was incorporated into her contract at Level II of her grievance. However, as there is no 006-R

13 recording of the Level II grievance hearing, there is no evidence that Petitioner failed to exhaust administrative remedies as to the incorporation argument. Further, it should be noted that Petitioner clearly raised the issue that she was entitled to a chapter 21 contract in her Level III brief. The administration made several arguments as to why Petitioner was not entitled to a chapter 21 contract in its reply to Petitioner s Level III grievance brief. In addition, Respondent argued that Petitioner had not previously contended that her contract was not properly ended under chapter 21 of the Texas Education Code. However, instead of ruling on this exhaustion claim, Respondent s board affirmed the Level II decision. Hightower v. Dodd Respondent contends that the case of Hightower v. State Comm r of Educ., 778 S.W.2d 595, 598 (Tex. App-Austin 1989, no writ) was overruled by implication by Dodd v. Meno, 870 S.W.2d 4 (Tex. 1994). Dodd was a nurse who believed that her nursing certificate entitled her to a chapter 21 contract. As the Dodd case cites the Hightower case twice with approval, it would seem unlikely that the Supreme Court was overruling another portion of the Hightower case sub silentio. Id. at 6 and 7. The Supreme Court cites Hightower for the proposition that the certifications referenced are only those issued by the Central Education Agency. Id. at 6. The Supreme Court also cites Hightower for the proposition that the State Board of Education has discretion as what types of certificates to issue. Id. at 7. The Supreme Court determined in Dodd is fully in accordance with Hightower. Conclusion of Law After due consideration of the record, matters officially noticed, and the foregoing Findings of Fact, in my capacity as the Commissioner of Education, I make the following Conclusions of Law: 1. The Commissioner has jurisdiction over this case under Texas Education Code section R

14 2. If a school district employs an individual and requires that individual by policy or contract to hold a certificate issued by the State Board for Educator Certification under Texas Education Code chapter 21, subchapter B, the school district is required to employ the individual under a term contract as specified by Texas Education Code chapter 21, subchapter E. 3. Because Petitioner s Administrator Term Contract required Petitioner to hold a certificate issued under Texas Education Code chapter 21, subchapter B by the State Board for Educator Certification, Petitioner s Administrator Term Contract is a chapter 21, subchapter E term contract. 4. If a teacher holds a chapter 21 term contract and the employing school district does not propose the nonrenewal of the contract, the school district must employ the teacher in the same professional capacity for the next school year. TEX. EDUC. CODE Because Petitioner held a chapter 21, term contract for the school year and Respondent did not propose the nonrenewal of Petitioner s contract, Respondent is required to employ Petitioner in the same professional capacity for the school year. 6. Statutes that exist when a contract is entered into are incorporated into the contract. 7. Petitioner s Administrator Term Contract incorporates Texas Education Code chapter 21, subchapter E as it existed when the contract was executed. 8. The job description Petitioner executed on October 27, 2010 is a part of Petitioner s contract. 9. The terms of Petitioner s Administrator Term Contract do not preclude the contract from being a chapter 21 term contract. 10. Both Petitioner s actual job duties for the school year and the job duties specified in Petitioner s job description meet the requirements set forth in the 006-R

15 Hightower case for an other full-time professional employee who is required to be given a chapter 21, term contract. 11. The Amended Petition for Review should be granted to the extent that Respondent is required to employ Petitioner in the same professional capacity for the school year. Order After due consideration of the record, matters officially noticed and the foregoing Findings of Fact and Conclusions of Law, in my capacity as Commissioner of Education, it is hereby ORDERED that the Petitioner s appeal be, and is hereby, granted in part. SIGNED AND ISSUED this day of June, MICHAEL WILLIAMS COMMISSIONER OF EDUCATION Signed and issued on June 4, 2015 by Michael Williams, Commissioner of Education 006-R