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Hearing Examiners

WHAT IS THE STANDARD FOR REMOVAL OF A HEARING EXAMINER?

Case citation:  In re Paula Robnett-Theodorio, Dkt. No. 087-R8-0711 (Comm’r Educ.  August 30, 2013).

Summary:   Rogers, Morris, and Grover, L.L.P., a law firm that represents school districts, requested that the Commissioner of Education take action concerning hearing examiner Paula Robnett-Theodorio.  The petition alleged that in two cases involving nonrenewals, the hearing examiner used the good cause legal standard, which is the correct standard in termination cases.  It was also alleged that the hearing examiner did not file recommendations timely, and did not provide copies of recommendations to the board president.  The law firm contended that Robnett-Theodorio failed to meet the standards required for an independent hearing examiner.

Ruling: The Commissioner ruled that Robnett-Theodorio should not be recertified as a hearing examiner.  Under Texas Education Code § 21.257, an independent hearing examiner is required to issue a recommendation no later than the 60th day after the date on which the Commissioner receives a teacher’s request for a hearing.  To issue a recommendation, an independent hearing examiner must draft, sign, and deliver the recommendation to the parties, the president of the school board, and the Commissioner.  The record showed that Robnett-Theodorio did not deliver the recommendation to the parties until the 61st day after the Commissioner received the teacher’s written request for a hearing in one case, and 63 days after the written request in another case.  Thus, the recommendations in those two cases were not timely issued.

Under Texas Education Code § 21.257(d), an independent hearing examiner who fails to timely issue a recommendation may not be assigned a case for a period not to exceed one year.  The Commissioner can certify hearing examiners according to criteria established by the State Board of Education found at 19 Tex. Admin. Code § 157.41.  The Commissioner may decline to recertify an independent hearing examiner if an independent hearing examiner has failed to perform the duties of an examiner in a competent manner.  Issues of timeliness, accuracy, and decorum and control are considered in the determination of whether to recertify a hearing examiner.  Here, in addition to issues of timeliness, the evidence showed that Robnett-Theodorio used the incorrect legal standard in two nonrenewal cases.  In another case, she did not properly identify the type of contract at issue and the proposed contract action.  The Commissioner found those to be “significant errors in accuracy.”  Thus, the Commissioner concluded that Robnett-Theodorio should not be recertified as an independent hearing examiner.