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Commissioner Jurisdiction

DID THE EMPLOYEE FILE A TIMELY GRIEVANCE OVER HIS COMPENSATION?

Case citation:  Roesch v. Spurger ISD, Dkt. No. 052-R10-0410 (Comm’r Educ. September 21, 2012).

Summary:  Louis Roesch worked for the Spurger Independent School District as a part-time special education aide and part-time maintenance employee.  During the 2008-09 school year, Roesch was reassigned to the position of In School Suspension (ISS) monitor.  On May 25, 2009, the superintendent informed Roesch that his compensation as an ISS monitor would be reduced the next school year, although the exact amount had not been determined.

Roesch started the school year as an ISS monitor, and learned on September 23, 2009 that his salary would be reduced by 20 percent.  On September 25, 2009, Roesch sent an email to the superintendent complaining about the salary reduction.  On December 1, 2009, Roesch filed a grievance.  The district denied the grievance at each level primarily because it was not timely filed.  Roesch appealed to the Commissioner of Education.

Ruling:  The Commissioner denied Roesch’s appeal for lack of jurisdiction because the grievance was not filed timely.  Under the district’s grievance policy, grievances must be filed within 15 days of the date the employee first knew, or reasonably should have known, of the action giving rise to the grievance.  In this case, Roesch learned that his salary would be reduced in May of 2009.  He then learned the exact amount of the salary reduction on September 23, 2009.  Although he sent an email to the superintendent two days later, he did not file a formal grievance until December of 2009, about two months later.  Because the grievance was not timely filed, the Commissioner did not have jurisdiction over the appeal.

In addition, the appeal was based on the district’s alleged violations of “unspecified Wage Payment Laws, the Texas Payday Law and the decision by a New Jersey state court.”  According to the Commissioner, jurisdiction exists over violations of the “school laws of this state.”  The violations alleged by Roesch did not implicate the school laws of Texas and, as a result, the Commissioner did not have jurisdiction over the claims.  The Commissioner, therefore, dismissed the appeal.

Things to Remember:  While the Commissioner rejects the New Jersey case as unimportant, we are confident that no disrespect to the Garden State is intended.  Still, we hope that Governor Christie does not hear about this.  All kidding aside, the main lesson of this case is that an email does not constitute the filing of a grievance.  The Commissioner puts the responsibility to know about the grievance deadline on the employee.  Ignorance of the deadline is no excuse.

THE PROBATIONARY EMPLOYEE FAILED TO EXHAUST ADMINISTRATIVE REMEDIES OR DEMONSTRATE MONETARY HARM

Case citation:  Walker v. Hitchcock ISD, Dkt. No. 077-R2-0809 (Comm’r Educ. September 21, 2012).

Summary:  Doreatha Walker worked for the Hitchcock Independent School District when the district notified her that the school board had voted to propose the termination of her probationary contract.  A newspaper present at the board meeting reported that the board had voted to terminate the contract.  Nevertheless, Walker continued to receive paychecks.  She also requested a hearing before an independent hearing examiner and a hearing was held in the matter.  While the decision was pending, Walker filed an appeal with the Commissioner of Education complaining about the district’s actions on her probationary contract.

Ruling:  The Commissioner dismissed the appeal, holding that he did not have jurisdiction over the case.  For the Commissioner to have jurisdiction over a claim under Texas Education Code § 7.057(a)(2)(B), a petitioner must not only allege a violation of a written employment contract, but also that the violation caused or would cause monetary harm.  In this case, the record showed that Walker was still receiving compensation when her appeal was filed.  Because she could not demonstrate monetary harm, the Commissioner concluded that jurisdiction did not exist under § 7.057(a)(2)(B).

In addition, there was no showing that Walker had exhausted administrative remedies on her claims before the Commissioner.  Walker never filed a grievance over her claims.  By not availing herself of the grievance process, she failed to exhaust administrative remedies.  The Commissioner, therefore, lacked jurisdiction over the claims.

Things to Remember:  The newspaper got it wrong, not the district.

DID THE EMPLOYEE TIMELY REQUEST A HEARING OVER THE TERMINATION OF HER CONTINUING CONTRACT?

Case citation:  Whitney v. El  Paso ISD, Dkt. No. 088-R2-0810 (Comm’r Educ. October 18, 2012).

Summary:  Marda Whitney worked for the El Paso Independent School District under a continuing contract when the district proposed her termination.  She received notice of the proposed termination on July 20, 2010.  Whitney sent a letter to the Texas Education Agency on August 3, 2010, but did not request the assignment of an independent hearing examiner.  Therefore, the TEA docketed the case as an appeal under Education Code
§ 7.057 before the board, not an appeal of the termination of her contract.  After first determining that jurisdiction did not exist over the appeal, Whitney was also given an opportunity restate her claims and to cite specific provisions of the Texas Education Code or Texas Administrative Code that she claimed had been violated.  She alleged only that the district violated Education Code § 21.301.

Ruling:  The Commissioner lacked jurisdiction over Whitney’s appeal.  Education Code § 21.301 provides that a teacher has 20 days within which to appeal a board’s decision to nonrenew a teacher’s contract.  According to the Commissioner, it was not apparent how a school district could violate Education Code
§ 21.301.  The Commissioner did not have jurisdiction over that claim.

In addition, Whitney did not timely request the assignment of an independent hearing examiner.  Under Education Code
§ 21.253, the request should have been filed with the Commissioner not later than the 15th day after the date the teacher received notice of the proposed contract action.  Whitney failed to do so and, therefore, the Commissioner lacked jurisdiction over the appeal.

DID THE COMMISSIONER HAVE JURISDICTION OVER THE EMPLOYEE’S TERMINATION?

Case citation:  Oliveira v. Weslaco ISD, Dkt. No. 019-R2-10-2012 (Comm’r Educ. January 2, 2013).

Summary:  Ana Dalia Oliveira held a term contract but was terminated by the Weslaco Independent School District.  An independent hearing examiner presided over the termination hearing and issued a recommendation to the board of trustees.  However, neither Oliveira or her counsel appeared at the board hearing to consider the recommendation of the hearing examiner.  The board ultimately voted to terminate the contract and Oliveira appealed to the Commissioner of Education.  The district argued, in response, that the Commissioner did not have jurisdiction over the appeal.

Ruling:  The Commissioner dismissed the appeal for lack of jurisdiction.  The Commissioner observed that to exhaust administrative remedies, a teacher must raise legal and factual arguments before the school board at the hearing in which the recommendation of the independent hearing examiner is considered.  Here, Oliveira and her counsel failed to attend the board meeting.  Thus, Oliveira failed to exhaust administrative remedies and jurisdiction did not exist over the appeal.