The Commissioner recently clarified rules concerning who can attend closed session deliberations on a grievance.  This Commissioner decision also discussed when a grievant can supplement the local record at Levels II and III.  Walker v. North East ISD, Dkt. No. 035-R10-1111 (Comm’r Educ.  August 30, 2013), started as a grievance over whether Jennifer Walker was required to return to work after a period of assault leave.  Walker’s workers’ compensation provider determined that Walker could return to work, but Walker filed a grievance.  At Level I, Walker became aware of a new surveillance video useful to her defense.  At Level II and Level III, Walker tried to offer additional evidence, including medical records and the doctor’s notes about the surveillance video.  The additional evidence was not added to the record because it had not been offered at Level I.  When the board deliberated in closed session at Level III, in attendance were the superintendent and an attorney from the same law firm as the attorney who represented the district at the Level III hearing.  Walker filed a second grievance concerning procedural irregularities in the first grievance.  When the grievances were denied, she appealed to the Commissioner of Education.

The Commissioner returned the case to the school district to reconsider Walker’s grievance with the additional evidence concerning the doctor’s notes concerning the surveillance video.  Supplementation of the local record is allowed under 19 Tex. Admin. Code § 157.1073(f), “if it appears that the party has evidence to offer that is material, relevant, or not unduly repetitious that the party, for good cause, was unable to adduce at the local hearing.”  All of Walker’s evidence was “material, relevant, and not unduly repetitious.”  Although Walker did not demonstrate good cause for failing to timely produce the medical records, she did have good cause for not providing the doctor’s opinions concerning the surveillance video because Walker did not become aware of the video until the Level I grievance hearing.  As a result, the Commissioner returned the case to the school district for the board to consider the new evidence.

Walker also objected to the manner in which the district’s board went into closed session to deliberate concerning her first grievance.  The reason given for the closed session under the Texas Open Meetings Act was to consult with the board’s counsel, to discuss personnel, or to hear complaints against personnel.  The attorney who represented the board that night and the superintendent accompanied the board into closed session.  Section 11.1513(j) of the Education Code provides that an employment policy may not restrict the ability of a school district employee to communicate directly with a member of the board of trustees regarding a matter related to the operation of the district.  However, a policy may prohibit ex parte communication related to (1) a hearing under Subchapter E or F, Chapter 21, and (2) another appeal or hearing in which ex parte communication would be inappropriate pending a final decision by the board.

In this case, Walker claimed that she was restricted in her ability to address the board when the chief administrative officer of the district and an attorney, who was a member of the same firm as the attorney who represented the administration, had the potential opportunity to address the board during closed session.  According to the Commissioner, § 11.1513(j) does not in general prohibit a board from conducting executive sessions that exclude employee grievants.

With respect to the attorney’s presence in closed session, the Commissioner observed that Government Code § 551.071 allows a board to consult with its attorney.  Further, under the Texas Open Meetings Act, a governmental body may include individuals in executive session whose participation is necessary for the matter under consideration.  The fact that two attorneys from the same law firm individually represented the administration and the school board during a grievance does not, in itself, establish that a violation occurred.  According to the Commissioner, it was not improper in this case for the attorney representing the school board to be allowed in the closed session for deliberation.  The record did not reflect that the attorney did anything improper during the closed session.

The Commissioner, however, observed that it is not proper for a superintendent to be allowed into an executive session when a grievance is being deliberated, unless the superintendent’s presence is necessary.  Here, because the superintendent’s presence was not necessary, he should not have been in the executive session when the grievance was discussed.  Nevertheless, the fact that deliberation may have been conducted in violation of the Texas Open Meetings Act does not mean that a vote based on that deliberation is void.  The Commissioner stated:  “There is a considerable difference between a vote that was improperly taken and a deliberation that was not proper.”

This decision provides much-needed guidance for school boards.  Here, the Commissioner made a point that there was no evidence that anything improper occurred, so the mere presence of the attorney and the superintendent did not, in itself, void the deliberations.  Nevertheless, to avoid the appearance of impropriety, and a violation of the Education Code, the best practice might be to exclude the superintendent during closed session grievance deliberations.

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