Facts: The teacher was employed under term contracts for the 2013-2014 and 2014-2015 school years. During the 2013-2014 school year, it was alleged that the teacher inappropriately touched a student more than once and inappropriately communicated with a student. The student was interviewed by a school police officer on video after she made an outcry that the teacher had inappropriately touched her. The police woman who interviewed the student was well-trained in conducting such interviews and conducted the interview in a professional manner. At the time of the hearing on the proposed nonrenewal of the teacher’s contract, the student could not be located. Neither the District’s police department nor the local city police department was able to locate the student. The administration offered the police video of the student into evidence at the teacher’s nonrenewal hearing. The teacher objected to admission of the video because it was hearsay and because he was not given an opportunity to cross-examine the student. The video was admitted into evidence. The Board ultimately nonrenewed the teacher’s contract and the teacher appealed to the Commissioner of Education, arguing that it was improper to use the videotaped statement by the student as evidence. The teacher also argued that the nonrenewal was improper because counsel for the District and counsel for the school board at the hearing on the proposed nonrenewal of the teacher’s contract were employed by the same law firm.
Holding: The Commissioner held that substantial evidence existed to support the teacher’s nonrenewal for inappropriately touching and communicating with a student. The teacher argued that the videotaped statement by the student was the only evidence supporting nonrenewal and, because it was inadmissible hearsay, it should have been excluded and, therefore, substantial evidence did not support the nonrenewal. The Commissioner disagreed and held that testimony by the interviewing police officer offered at the nonrenewal hearing also constituted evidence supporting nonrenewal. Although it was hearsay, no objection was raised and, therefore, it was properly considered.
With respect to the videotaped statement by the student, the Commissioner observed that in administrative hearings considerable discretion is permitted in allowing evidence to be introduced. The Commissioner recognized the liberal exceptions to the hearsay rule in the administrative context found at Texas Government Code section 2001.081 and held that those liberal rules apply when a school board holds an evidentiary hearing concerning the proposed nonrenewal of a term contract. Under this exception, hearsay evidence is allowed if it is (1) necessary to ascertain facts not reasonably susceptible of proof under these rules, (2) not precluded by statute, and (3) of a type on which a reasonably prudent person commonly relies in the conduct of the person’s affairs. The Commissioner concluded that the video evidence had met this exception. First, the evidence was necessary because the girl could no longer be located. Second, there is no statutory prohibition to considering the video. Finally, the video was the type of evidence reasonably prudent people rely upon, given that the police woman who interviewed the student was well-trained in conducting such interviews and conducted the interview in a professional manner. In this case, the board did not abuse its discretion when it entered into evidence the police video. In addition, that counsel for the administration and counsel for the school board are employed by the same law firm was not a procedural irregularity and even if it were, it was not likely to lead to an erroneous decision. The Commissioner, therefore, upheld the teacher’s nonrenewal.