Sylvia Ortiz v. Commissioner of Education and Plano Independent School District ( 2015 )

ACCEPTED
05-14-01165-CV
FIFTH COURT OF APPEALS
DALLAS, TEXAS
4/13/2015 4:02:52 PM
LISA MATZ
CLERK
5th Court of Appeals
FILED: 4/13/15
Lisa Matz, Clerk
NO. 05-14-01165-CV
IN THE COURT OF APPEALS
FOR THE FIFTH DISTRICT OF TEXAS
AT DALLAS, TEXAS
__________________________________________________________________
SYLVIA ORTIZ, Appellant
v.
COMMISSIONER OF EDUCATION, Appellee/Cross-Appellee
and PLANO INDEPENDENT SCHOOL DISTRICT, Appellee/Cross-Appellant
__________________________________________________________________
On Appeal from the 429th District Court, Collin County,
Texas Trial Court Cause No. 429-00459-2014
__________________________________________________________________
APPELLEE/CROSS-APPELLEE COMMISSIONER WILLIAMS’
RESPONSE TO BRIEF OF APPELLANT ORTIZ
AND
RESPONSE TO BRIEF OF CROSS-APPELLANT PLANO I.S.D.
__________________________________________________________________
KEN PAXTON ROBIN SANDERS
Attorney General of Texas Assistant Attorney General
Texas Bar No. 09310900
CHARLES E. ROY Office of the Texas Attorney General
First Assistant Attorney General Administrative Law Division
P. O. Box 12548
JAME E. DAVIS Austin TX 78711-2548
Deputy Attorney General for Defense Phone: (512) 475-4005
Litigation Fax: (512) 320-0167
robin.sanders@texasattorneygeneral.gov
DAVID A. TALBOT, JR.
Chief, Administrative Law Division
COUNSEL FOR APPELLEE/CROSS-APPELLEE
COMMISSIONER OF EDUCATION
ORAL ARGUMENT NOT REQUESTED
TABLE OF CONTENTS
TABLE OF CONTENTS .......................................................................................... ii
TABLE OF AUTHORITIES ................................................................................... iv
STATEMENT OF CASE ....................................................................................... vii
STATEMENT REGARDING ORAL AGRUMENT ............................................ vii
ISSUES PRESENTED........................................................................................... viii
STATEMENT OF FACTS ........................................................................................2
STANDARD OF REVIEW .......................................................................................2
COMMISSIONER’S DETERMINATION OF “GOOD CAUSE”...........................4
A. Grounds rejected by the Commissioner ........................................................4
1. Absence of sufficient notice to Ortiz (Ortiz’s issues 1-3, Plano’s
cross-issues 1 and 2) ..............................................................................5
2. Waiver by offer of new term contract (Ortiz’s issues 1 and 3,
Plano cross-issues 1 and 3)....................................................................9
3. Absolute privilege for statements in judicial proceeding
(Ortiz’s issues 1 – 3, Plano’s cross-issue 4): .......................................13
4. Hearing Examiner’s Evidentiary Rulings (Ortiz’s issues 1 – 3,
Plano’s cross-issue 6) ..........................................................................15
a. The investigative reports ...........................................................15
b. The hearsay contained within the investigative reports ............17
c. Expert Issues .............................................................................18
ii
5. Allegations without supporting factual findings (Plano’s
cross-issue 5) .......................................................................................20
6. Summary of Response to Plano I.S.D. ................................................20
B. Grounds accepted by the Commissioner .....................................................21
1. The March 23, 2012, agreement (Ortiz’s issues 1, 4) .........................22
2. Ortiz’s recorded communications with student (Ortiz’s issue 1) ........23
CONCLUSION AND PRAYER .............................................................................24
CERTIFICATE OF COMPLIANCE .......................................................................26
CERTIFICATE OF SERVICE ................................................................................26
iii
TABLE OF AUTHORITIES
Cases
Aleman v. Edcouch Indep. Sch. Dist., 982 F. Supp. 2d 729 (S.D. Tex. 2013) ......2, 22
Auto Convoy v. R.R. Comm’n, 507 S.W.2d 718 (Tex. 1974) ....................................4
Bird v. W.C.W., 868 S.W.2d 767 (Tex. 1994) .........................................................14
Farris v. Fort Bend Indep. Sch. Dist., 27 S.W.3d 307 (Tex. App.—Houston
[1st Dist.] 2000, no pet.) ......................................................................... 2, 3, 4
First Sw. Lloyds Ins. Co. v. MacDowell, 769 S.W.2d 954 (Tex. App.—
Texarkana 1989, writ denied) ........................................................................17
Flores v. Fourth Court of Appeals, 777 S.W.2d 38 (Tex. 1989) .............................16
Greenberg Traurig of N.Y., P.C. v. Moody, 161 S.W.3d 56 (Tex. App.—
Houston [14th Dist.] 2004, no pet.) ...............................................................19
Grigsby v. Moses, 31 S.W.3d 747 (Tex. App.—Austin 2000, no pet.) ...................13
Guerra v. Santa Rosa Indep. Sch. Dist., 241 S.W.3d 594 (Tex. App.—
Corpus Christi, 2007, pet. denied) ...................................................................8
Heritage on the San Gabriel Homeowners Ass’n v. Tex. Comm’n on Envtl.
Standards, 393 S.W.3d 417 (Tex. App.—Austin, 2012, pet. denied). ............3
Hernandez v. Hayes, 931 S.W.2d 648 (Tex. App.—Houston [1st Dist.]
1998, pet. denied) ..........................................................................................14
James v. Brown, 637 S.W.2d 914 (Tex. 1982) ........................................................14
Laub v. Pesikoff, 979 S.W.2d 686 (Tex. App.—Houston [1st Dist.]
1998, pet denied) ...........................................................................................14
Matthews v. Scott, 268 S.W.3d 162 (Tex. App. –Corpus Christi 2008,
no pet.) .............................................................................................. 2, 3, 5, 21
iv
Montgomery Indep. Sch. Dist. v. Davis, 34 S.W.3d 559 (Tex. 2000) ........... 3, 4, 20
Nat’l Tank Co. v. Brotherton, 851 S.W.2d 193 (Tex. 1993) ...................................16
Paramount Pipe & Supply Co., Inc. v. Muhr, 749 S.W.2d 491 (Tex. 1988).............7
Reagan v. Guardian Life Ins. Co., 166 S.W.2d 909 (Tex. 1942) ............................14
SmithKline Beecham Corp. v. Doe, 903 S.W.2d 347 (Tex. 1995) ............................6
Tex. Alcoholic Beverage Comm’n v. Twenty Wings, Ltd., 112 S.W.3d 647
(Tex. App.—Fort Worth 2003, rev. denied) ...................................................3
Tex. Health Facilities Comm’n v. Charter Med.-Dall., Inc.,
665 S.W.2d 446 (Tex. 1984) ............................................................ 2, 3, 5, 21
Tex. State Bd. of Dental Examiners v. Sizemore, 759 S.W.2d 114
(Tex. 1988), cert. denied, 490 U.S. 1080, 109 S. Ct. 2100 (1989) .............2, 3
Statutes
Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g ..............................6
Tex. Educ. Code § 11.1513 ......................................................................................12
Tex. Educ. Code § 21.204 ........................................................................................12
Tex. Educ. Code § 21.256 (d) ..................................................................................15
Tex. Educ. Code § 21.256 (e) ..................................................................................15
Tex. Educ. Code § 21.257(a)(2)(a-1) .......................................................................19
Tex. Educ. Code § 21.307 (e) ..............................................................................2, 22
Tex. Educ. Code § 21.307 (f) .....................................................................................3
Tex. Educ. Code § 21.307 (g) ......................................................................... 3, 5, 21
v
Rules
Tex. R. Civ. 702 ................................................................................................ 18, 19
Tex. R. Civ. Pro. 45 ...................................................................................................9
Tex. R. Evid. 803 (6)................................................................................................15
Tex. R. Evid. 803 (8)................................................................................................15
Tex. R. Evid. 805 .....................................................................................................17
Commissioners' Decision
Fort Worth Indep. Sch. Dist. v. Edmon, Docket No. 040-LH-1203
(Comm’r Educ. 2004) ..................................................................................8, 9
Gibson v. Tatum Indep. Sch. Dist., Docket No. 040-R2-1099
(Comm’r Educ. 1999) ......................................................................................6
Goodfriend v. Hous. Indep. Sch. Dist.., Docket No. 079-R2-703
(Comm’r Educ. 2003) ....................................................................................10
Kinsey v. Quinlan Indep. Sch. Dist., Docket No. 104-R2-598
(Comm’r Educ. 1998) ......................................................................................6
vi
STATEMENT OF CASE
Commissioner Williams agrees with Appellant Ortiz’s statement of the
procedural history of the case.
STATEMENT REGARDING ORAL AGRUMENT
Commissioner Williams believes the issues presented by this case are
controlled by settled principles of law and that oral argument would not be of
significant benefit to the court. Accordingly, the Commissioner does not request
oral argument.
vii
ISSUE PRESENTED
Whether substantial evidence supports Plano Board of Trustees’ decision, as
affirmed by the independent hearing officer, the Commission of Education and the
district court, to terminate appellant Ortiz’s teaching contract.
viii
NO. 05-14-01165-CV
IN THE COURT OF APPEALS
FOR THE FIFTH DISTRICT OF TEXAS
AT DALLAS, TEXAS
__________________________________________________________________
SYLVIA ORTIZ, Appellant
v.
COMMISSIONER OF EDUCATION, Appellee/Cross-Appellee
and PLANO INDEPENDENT SCHOOL DISTRICT, Appellee/Cross-Appellant
__________________________________________________________________
On Appeal from the 429th District Court, Collin County,
Texas Trial Court Cause No. 429-00459-2014
__________________________________________________________________
APPELLEE/CROSS-APPELLEE COMMISSIONER WILLIAMS’
RESPONSE TO BRIEFS OF
APPELLANT ORTIZ AND CROSS-APPELLANT PLANO I.S.D.
COMES NOW Michael Williams, State Commissioner of Education (‘the
Commissioner”), by and through his attorney of record Ken Paxton, Attorney
General of Texas, and the undersigned Assistant Attorney General, and files his brief
in response to the briefs filed by Appellant Ortiz and Cross-appellant Plano
Independent School District. For the reasons set forth herein, the Commissioner
respectfully requests that this court affirm the trial court’s decision affirming
termination of Ortiz’s teaching contract.
1
STATEMENT OF FACTS
Commissioner Williams agrees with Appellee/Cross-appellant Plano
Independent School District’s statement of facts.
STANDARD OF REVIEW
The substantial evidence rule governs this court’s review of the
Commissioner’s decision. Tex. Educ. Code § 21.307 (e). Under substantial
evidence review, the court is not allowed to substitute its judgment for that of the
Commissioner Tex. Health Facilities Comm’n v. Charter Med.-Dall., Inc., 665
S.W.2d 446 (Tex. 1984); Farris v. Fort Bend Indep. Sch. Dist., 27 S.W.3d 307
(Tex. App.—Houston [1st Dist.] 2000, no pet.). Instead, the court’s task is to
consider whether the evidence as a whole1 is such that reasonable minds could have
reached the same conclusion as the Commissioner. Tex. State Bd. of Dental
Examiners v. Sizemore, 759 S.W.2d 114, 116 (Tex. 1988), cert. denied, 490 U.S.
1080, 109 S. Ct. 2100 (1989); Matthews v. Scott, 268 S.W.3d 162, 172 (Tex. App. –
Corpus Christi 2008, no pet.); Farris, 27 S.W.3d at 311. The evidence may
preponderate against the agency’s decision but still amount to substantial evidence.
Matthews, 268 S.W.3d at 172. Substantial evidence required to support the agency’s
decision need only be more than a scintilla. Tex. Alcoholic Beverage Comm’n v.
1
The court is limited to consideration of the administrative record from the proceedings below. Tex. Ed. Code
§ 21.307 (e); Aleman v. Edcouch Indep. Sch. Dist., 982 F. Supp. 2d 729, 740-41 (S.D. Tex. 2013) (reviewing court may
not receive evidence outside the administrative record).
2
Twenty Wings, Ltd., 112 S.W.3d 647, 650 (Tex. App.—Fort Worth 2003, pet.
denied).
Reversal of the administrative decision is allowed only if the decision is not
supported by substantial evidence or the Commissioner’s conclusions of law are
erroneous. Id., Tex. Educ. Code § 21.307 (f); Montgomery Indep. Sch. Dist. v. Davis,
34 S.W.3d 559, 562 (Tex. 2000). Even if the court determines that the
commissioner’s decision is based on an error or a procedural irregularity, reversal is
allowed only if the court determines that the irregularity or error likely led to an
erroneous decision. Id., § 21.307 (g); Charter Med.-Dall. Inc., 665 S.W.2d at 452;
Matthews, 268 S.W.3d at 172 (Commissioner’s reasoning immaterial if conclusion
is correct). Courts are hesitant to disturb the findings of the Commissioner in areas
in which he enjoys considerable authority and expertise. Id.
The party seeking to disturb the Commissioner’s decision bears the burden of
demonstrating the absence of substantial evidence. Sizemore, 759 S.W.2d at 116;
Matthews, 268 S.W.3d at 172. This burden is a heavy one,2 not met merely by a
showing that the evidence preponderates in favor of the appealing party. Charter
Med.-Dall., Inc., 665, S.W.2d at 452; Farris, 27 S.W.3d at 311-312. If substantial
evidence would support either decision, the agency’s decision will be upheld. Auto
2
Heritage on the San Gabriel Homeowners Ass’n v. Tex. Comm’n on Envtl. Standards, 393 S.W.3d 417, 424 (Tex.
App.—Austin, 2012, pet. denied).
3
Convoy v. R.R. Comm’n, 507 S.W.2d 718, 722 (Tex. 1974); Farris, 27 S.W.3d at
312. The factfinder—here the hearing examiner—is the sole judge of witnesses’
credibility and the weight to be given their testimony, and is free to resolve any
inconsistencies in the testimony presented. Montgomery Indep. Sch. Dist., 34
S.W.3d at 567.
COMMISSIONER’S DETERMINATION OF “GOOD CAUSE”
A. Grounds rejected by the Commissioner
The Commissioner of Education and Plano Independent School District agree
that good cause supports the district’s decision to terminate Ortiz. Nonetheless,
Plano insists that several elements of the Commissioner’s decision require correction
because they are either not supported by substantial evidence or constitute errors of
law. The grounds the Commissioner rejected included: absence of sufficient notice
to Ortiz; district waiver by entering into a new term contract; absolute privilege for
statements Ortiz made in the course of judicial proceedings; erroneous evidentiary
rulings by the independent hearing examiner;3 and allegations not supported by the
hearing examiner’s factual findings.
3
These include erroneous admission of the district’s investigative reports, expert reports and testimony, and hearsay.
4
The exercise of parsing the Commissioner’s basis for affirming Ortiz’s
termination is of limited value, at best. Even if the court determines that the
commissioner’s decision was based on a legal error or a procedural irregularity,
reversal is allowed only if the court determines that the irregularity or error likely
led to an erroneous decision. Id., § 21.307 (g); Charter Med.-Dall., Inc., 665, S.W.2d
at 452; Matthews, 268 S.W.3d at 172 (Commissioner’s reasoning immaterial if
conclusion is correct). That is, if Ortiz’s termination was appropriate on the record
as a whole, any legal errors the Commissioner made are irrelevant to the outcome of
this appeal.
Nonetheless, because these issues form a substantial portion of points raised
by both appellant Ortiz and cross-appellant Plano, the Commissioner’s alleged errors
raised by Plano will be addressed in sections 1-5, infra.
1. Absence of sufficient notice to Ortiz (Ortiz’s issues 1-3, Plano’s cross-
issues 1 and 2)
The Commissioner determined that the district failed to provide Ortiz
adequate notice of several of the allegations upon which Plano seeks to rely to
establish good cause. R.R. 3, 176-78, 130-32.4 Plano contends that the
Commissioner erred in finding that the following allegations were inadequately
4
“R.R.” refers to Reporter’s Record volume. The page numbers following refer to the Adobe Reader page numbers
in which the reference is found.
In contrast, “R.R. Pt. ___” refers to one of the six (6) parts compromising Reporter’s Record, Exhibit 11. Thus
reference to those documents will be “R.R. Pt. ___, [Adobe Reader page reference].”
5
noticed: Ortiz’s insubordination during interactions with her principal; Ortiz’s
unprofessional email correspondence with a parent/vice principal; and Ortiz’s
FERPA violations.5 Plano’s Brief, 64-68.
Ortiz actually received two notice of termination letters from the district. R.R.
Pt. 3, 158-167, 173-182. The letters, which purported to contain (by reference to
their attachments) the basis for Ortiz’s proposed termination, focused on conduct or
behaviors other than insubordination, the unprofessional emails and the FERPA
violations. Id. Though both letters included the Melton and AL&L reports by
reference, those reports likewise failed to address the issues of insubordination,
unprofessional emails and FERPA violations. R.R. Pt. 1, 313-324, 402-426. The
Commissioner held that, absent notice of these alleged violations, they could not
constitute “good cause” for her termination. R.R. 3, 176-78, 130-32.
In an appeal to the Commission, a letter of proposed termination is treated as
a pleading. Gibson v. Tatum Indep. Sch. Dist., Docket No. 040-R2-1099 (Comm’r
Educ. 1999), Kinsey v. Quinlan Indep. Sch. Dist., Docket No. 104-R2-598 (Comm’r
Educ. 1998). Texas law requires that a pleading provide enough facts to allow a
party fair and adequate notice of the claims involved and the ability to prepare a
defense. SmithKline Beecham Corp. v. Doe, 903 S.W.2d 347, 354 (Tex. 1995).
5
“FERPA” is the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g.
6
Apparently conceding that these events—insubordination, unprofessional emails
and FERPA violations-- were not directly referenced in either of the district’s notice
letters to s, P.I.S.D. nonetheless argues that notice was adequate.
First, P.I.S.D. argues that, because Ortiz failed to specially except to the
pleadings, defects are waived. Plano’s Brief at 64-65, 67. While it is true that special
exceptions are required to challenge the sufficiency of a pleading, the Commissioner
does not contend that the pleadings—here, the notice letters—are insufficient to
support good cause.6 Instead, the Commissioner contends that the letters are
insufficient to alert a reasonable person that the alleged insubordination,
inappropriate communication with a parent and FERPA violations are part of the
district’s factual basis for good cause. R.R. 3, 176-78, 130-32. The purpose of the
fair notice requirement is to provide the opposing party with sufficient information
to enable him to prepare a defense. Paramount Pipe & Supply Co., Inc. v. Muhr,
749 S.W.2d 491, 494 (Tex. 1988). It is contrary to logic to suggest that an individual
is required to specially except to the exclusion of any conceivable misdeeds from the
allegations against him.
Second, Plano argues that notice of the factual basis for good cause is not
required. Plano’s Brief at 65. In 2007, the Corpus Christi Court of Appeals stated
6
Texas Rule 45 describes this as “fair notice of the claim involved.”
7
that the district’s notice need not contain a recitation of good cause. Guerra v. Santa
Rosa Indep. Sch. Dist., 241 S.W.3d 594, 603-04 (Tex. App.—Corpus Christi, 2007,
pet. denied). The court did not address notice requirements when an educator
requests a due process hearing, nor did the court address the application of Rule 45
notice pleading requirements to that proceeding. Guerra, 241 S.W.3d at 604, n. 7.
In Guerra, the district made no effort to include incidents of good cause in its
notice; instead, it simply directed the superintendent to submit his resignation.
Guerra, 241 S.W.3d at 603. Therefore, the facts of Guerra stand in sharp contrast
to the circumstances presented here, in which the Ortiz was provided two notice
letters, both with lengthy attachments. R.R. Pt. 3, 158-167, 173-182; R.R. Pt. 1, 313-
324, 402-426. Indeed, the April 3, 2013, letter stated that the Board proposed to
terminate Ortiz’s employment “based upon the reasons outlined in the attached
letter.” R.R. Pt. 3, 158. Even if the facts or behaviors constituting good cause need
not be identified in the notice letter, if facts or behaviors are identified in the notice,
fairness demands that the identification be complete.
Further, Plano argues that any deficiency in the notice letters was cured by
inclusion of the (insufficiently noticed) allegations in the district’s pre-hearing
discovery responses and expert reports. Plano’s Brief at 66. Fort Worth Indep. Sch.
Dist. v. Edmon, the case upon which Plano relies to establish that discovery is an
adequate substitute for notice, is a hearing examiner opinion of no precedential
8
value. Fort Worth Indep. Sch. Dist. v. Edmon, Docket No. 040-LH-1203 (2004).
The Commissioner has not adopted the view that information exchanged in
discovery is an adequate substitute for notice.
Finally, Plano argues that the district did, in fact, provide Ortiz adequate
notice of the facts supporting her termination. Plano’s Brief at 66-67. Plano explains
that its notice was sufficient because, using insubordination as an example, the May
7 letter incorporates by reference the AL&L report, which, in turn, incorporates the
Parks report, which addresses the alleged insubordination. Id. It is the
Commissioner’s judgment that such multi-layered incorporation by reference is not
the “plain and concise language” required by Rule 45 and that Plano’s construction
is inconsistent with the requirement that “pleadings shall be construed so as to do
substantial justice.” Tex. R. Civ. P. 45.
2. Waiver by offer of new term contract (Ortiz’s issues 1 and 3, Plano
cross-issues 1 and 3)
Even if Ortiz had received sufficient notice of alleged insubordination toward
Principal Gober, unprofessional emails and FERPA violations, the district waived
these grounds by offering Ortiz a new term contract after it was aware of these
alleged acts of misconduct. 7 R.R. 3, 178-81, 132-35. Generally, a school district
7
The Commissioner observes that the inappropriate emails to the parent/vice-principal, which were directly copied to
two high school principals and two vice-principals, “were so inappropriately venomous that they alone could have
served as the basis for disciplinary action against [Ortiz].” R.R. 3, 180, 134. The email exchange between
parent/administrator and teacher may be found at R.R. Pt. 1, 150-53.
9
cannot take action against a teacher’s contract for his or her conduct in a prior school
year because the district has waived the ability to complain by offering the teacher a
new contract. Goodfriend v. Hous. Indep. Sch. Dist.., Docket No. 079-R2-703
(Comm’r Educ. 2003). The presumption of waiver is particularly strong in cases
involving term contracts (as opposed to continuing contracts), like Plano’s contract
with Ortiz.8 Id.
In this case, the misbehaviors to which waiver applies all occurred well in
advance of the district’s April 2012 offer of a term contract renewal. The first
FERPA violation occurred in September 2010 (R.R. 3, 180-81, 134-35); the acts of
insubordination toward Gober occurred between October 2011 and January 2012
(Id., 179, 133), and the second FERPA violation (Id., 181, 135) and inappropriate
communication with the parent/vice-principal occurred in February 2012. Id., 180,
134; R.R. Pt. 1, 150-53. Several of Ortiz’s administrators were either directly
involved in the events or became aware of them, yet they took no disciplinary or
remedial action against Ortiz. R.R. 3, 179, 133.
Plano seeks to avail itself of an exception to the presumption of waiver that
applies when, at the time of the contract renewal, a district has started but not
8
Plano attempts to use Goodfriend to its advantage by extracting its reference to contracts of more than one year
presenting a weaker case for waiver. Plano’s Brief at 68, n. 6. Plano’s attempt is unavailing and its reference
misleading. The language upon which Plano relies is, in full: “[I]f the term of the contract is for greater than one year
and the district, therefore, does not offer the teacher a new contract, there is a weaker case for waiver.” Goodfriend
at 3 (emphasis supplied).
10
completed an investigation. Plano’s Brief, 68-69. However, this exception is not
available to Plano on the facts presented. The investigation underway at the time of
Ortiz’s contract renewal, the Parks investigation, was aimed at investigating Ortiz’s
allegations against Gober, not vice versa. R.R. 3, 179-80, 133-34. The district took
no action to investigate Ortiz until after her contract renewal in April 2012 (and her
district court filing against the district and Gober in May 2012). Id.; R.R. Pt. 2, 269-
285.
Plano also suggests that the ex parte temporary restraining order Ortiz
obtained against the district, because it prohibited “adverse action” against Ortiz,
prevented it from non-renewing her contact. Plano Brief, 69. However, this
argument ignores the fact that renewal of Ortiz’s contract occurred before entry of
the TRO; the contract extension occurred on April 17, 2012 (R.R. 3, 179, 133) and
the temporary restraining order was entered the following month. R.R. Pt. 3, 154-
55. It was actually Ortiz’s obtaining a TRO against the district in mid-May 2012
that seemed to turn9 the investigation from Ortiz’s allegations against Gober to the
district’s allegations against Ortiz. R.R. 3, 186, 140.
Finally, Plano argues that waiver should not apply to Ortiz’s pre-April 2012
misdeeds because the district’s superintendent and/or board of trustees were not
9
The Commissioner’s decision describes this change of emphasis following the temporary restraining order as a
“pivot.” R.R. 3, 186, 140.
11
aware of them at the time of renewal. Plano’s Brief, 68-69. The administrative
record offers no factual support for this notion, and Plano’s brief offers no legal
support of it. While, ultimately, the district superintendent makes employment
recommendations (Tex. Educ. Code § 11.1513) and the board approves term
contracts (Tex. Educ. Code §21.204), campus managers—principals and assistant
principals—are first-line supervisors who make employment recommendations for
their professional staff. Indeed, in a district the size of Plano,10 common sense
compels the conclusion that input from campus managers is essential to employment
decisions.
In this case, prior to the renewal of her contract, Ortiz’s insubordination,
unprofessional emails and FERPA violations were well-known to district managers.
R.R. 3, 178-181, 132-135. Her insubordination was, of course, known to her
principal, Courtney Gober, to whom she was insubordinate. Id. Her unprofessional
emails with a parent were known to her campus administrators, to the parent (who
was a vice principal at another campus) and to other campus administrators where
the parent worked. Id. Finally, Principal Gober knew of two of Ortiz’s FERPA
violations, and administrators at the other campus knew of one. Id.
10
According to the district website, http://pisd.edu/schools, the district has 70 schools, 7,000 employees and over
55,000 students.
12
In the instant case, a teacher with two years remaining on her contract was
offered an extension of an additional year (Plano’s Brief, 68, n. 6) months after her
campus managers had direct knowledge of her inappropriate behaviors. This
situation presents a prototypical example of waiver. See Grigsby v. Moses, 31
S.W.3d 747, 749-50 (Tex. App.—Austin 2000, no pet.) (waiver occurs when the
party possessing the right relinquishes it, acts in a manner inconsistent with an intent
to claim it, or fails to act in a manner consistent with an intent to claim it). The
Commissioner correctly determined that allegations of insubordination,
inappropriate communication with a parent and FERPA violations were allegations
the district waived by renewing Ortiz’s contract in April 2012. R.R. 3, 178-181,
132-135.
3. Absolute privilege for statements in judicial proceeding (Ortiz’s issues
1 – 3, Plano’s cross-issue 4):
In its second notice letter, dated May 8, 2012, the district notified Ortiz that it
intended to use discrepancies in statements she had made under oath in her lawsuit
to demonstrate that she had violated board policies by lying. R.R. Pt. 2, 254-64. The
hearing examiner found that the district’s evidence on this issue demonstrated a
number of violations, including but not limited to false statement and falsifying
records. R.R. Pt. 3, 979-80.
However, the Commissioner correctly held that the hearing examiner
improperly admitted this evidence. A person enjoys an absolute privilege for
13
communications made during a judicial proceeding. Bird v. W.C.W., 868 S.W.2d
767, 771 (Tex. 1994); Hernandez v. Hayes, 931 S.W.2d 648, 654 (Tex. App.—San
Antonio 1996, writ denied). Texas courts have applied the privilege expansively,
focusing on its underlying policy encouraging full and free disclosure from
witnesses. Bird v. W.C.W., 868 S.W.2d 767, 772 (Tex. 1994), citing James v. Brown,
637 S.W.2d 914, 917 (Tex. 1982) ; Laub v. Pesikoff, 979 S.W.2d 686, 690 (Tex.
App.—Houston [1st Dist.] 1998, pet denied) (“Texas courts have consistently
applied the privilege to claims arising out of communications made in the course of
judicial proceedings, regardless of the label placed on the claim”). So jealously is
this principle guarded that it remains inviolate even when the speaker utters or
publishes the false language with express malice. Reagan v. Guardian Life Ins. Co.,
166 S.W.2d 909, 912 (Tex. 1942) (emphasis supplied).
Because, like any other litigant, Ortiz enjoys an absolute privilege for
statements made in the course of judicial proceedings, those statements cannot form
the basis of the district’s termination of her contract.11
11
Plano advances the argument that Ortiz’s lawsuit was only one of several formats in which Ortiz made false
statements about district employees. Plano’s Brief at 72. While a district may sanction its employees for lying during
an internal investigation, the Commissioner found that there was no indication Ortiz made false statements to any of
the investigators during the course of the district’s several investigations. R.R. 3, 183, 137.
14
4. Hearing Examiner’s Evidentiary Rulings (Ortiz’s issues 1 – 3, Plano’s
cross-issue 6)
a. The investigative reports
The Commissioner rejected the grounds for termination Plano presented
solely through improperly admitted evidence. R.R. 3, 184, 138. These grounds
were: Ortiz’s statements to students regarding Gober; and her attempts to influence
students’ statements in the investigation and litigation process. Id. The only
evidence of these communications12 came from improperly admitted investigative
reports (and the statements contained within those reports). R.R. 3, 184-86, 138-40.
An independent hearing examiner conducting a Chapter 21 case is required to
follow the Texas Rules of Evidence. Tex. Educ. Code §§ 21.256 (d), (e).
Investigation reports are hearsay, but they are subject to exceptions if: they are
shown to be either business record or government records; and there is no indication
indicating a lack of trustworthiness. Tex. R. Evid. 803 (6), (8). The reports in which
Ortiz’s interactions with students were contained were not business records because
they were not made in the ordinary course of business of the district.13 See, Tex. R.
Civ. 803 (6). They were, instead, created in anticipation of litigation with Ortiz.
R.R. 3, 186, 140. Documents and reports created in anticipation of litigation are not
admissible under the hearsay exceptions because they lack trustworthiness. Nat’l
12
The conversation with a student that Ortiz recorded and provided to AL&L was introduced in support of other
allegations, which are discussed separately in Section B(2)., infra.
15
Tank Co. v. Brotherton, 851 S.W.2d 193, 195 (Tex. 1993); Flores v. Fourth Court
of Appeals, 777 S.W.2d 38, 41 (Tex. 1989). Determining whether a report is created
in anticipation of litigation requires examination of the totality of the circumstances
surrounding its creation. National Tank, 851 S.W.2d at 204.
Plano argues that the investigation was admissible because it was made in the
ordinary course of the district’s business. Plano’s Brief, 77-80. It is doubtful that
the Parks investigation--the initial investigation into Ortiz’s grievance--was
conducted in the ordinary course of the district’s business. Though it may have
begun as a routine investigation of Ortiz’s grievance against Gober, the focus of the
Parks report shifted as soon as Ortiz obtain a temporary restraining order against the
district and Principal Gober on May 11, 2012. R.R. 3, 186, 140. Parks testified that
he became aware of the order the same day it was served on the district (and 10 days
before the district’s May 21 receipt of his completed report). R.R. Pt. 5, 222; R.R.
Pt. 3, 154-55; R.R. Pt. 1, 8-40.
But even assuming that the Parks report was prepared in the ordinary course
of the district’s business, the Melton and AL&L reports, both initiated after issuance
of the May 11, 2012, temporary restraining order, clearly were not. R.R. Pt. 1, 313-
324, 402-426. The Melton and AL&L reports focused, not on any employee
grievance, but solely on Ortiz’s alleged misconduct. Id. The district was, on and
16
after May 11, 2012, not merely anticipating litigation, but in litigation, with Ortiz.
R.R. Pt. 3, 154-55; see generally, R.R. Pt. 2, 269-317.
Examining the totality of the circumstances surrounding the disputed reports
compels the conclusion that they were created in anticipation of (or, more accurately,
during the midst of) litigation with Ortiz. The Commissioner correctly held that the
Independent Hearing Examiner abused her discretion by admitting these
investigations into evidence and that they could not serve as “good cause” for the
district’s action. R.R. 3, 184-86, 138-40.
b. The hearsay contained within the investigative reports
Even if the investigative reports were admissible as business records or
governmental records, the statements of students and teachers contained in them
were still inadmissible hearsay. R.R. 3, 186-87, 140-41. These improperly admitted
hearsay statements form the evidentiary basis for the district’s allegations that Ortiz
made inappropriate statements to students regarding Gober and attempted to
influence students’ statements.
In order to be admissible, each layer of hearsay must fit into an exception of
the hearsay rule. Tex. R. Evid. 805; First Sw. Lloyds Ins. Co. v. MacDowell, 769
S.W.2d 954, 959 (Tex. App.—Texarkana 1989, writ denied). In this case, while
Ortiz’s own statements are admissible as admissions of a party opponent, the
statements of students and teachers are hearsay statements to which no exception
17
applies. The Commissioner correctly determined that the statements were
improperly admitted and could not form the basis for the district’s action. R.R. 3,
186-87, 140-41.
c. Expert Issues
Issues involving experts arose in two ways in the administrative case. First,
Plano argued that the AL&L report was admitted, not as a business record or a
government record, but as an expert report. R.R. 3, 187-88, 141-42. The
Commissioner correctly determined that, if Plano was correct that the report was
admitted as an expert report, its admission was error.
Under the Texas Rules of Evidence, expert reports are admissible only if they
“assist the trier of fact to understand the evidence or to determine a fact in issue.”
Tex. R. Civ. 702. The conclusions drawn in the AL&L report did not require
significant specialized knowledge (R.R. Pt. 1, 402-426); instead, it was within the
hearing examiner’s ability to determine whether the evidence in the report supported
the district’s allegations against Ortiz. R.R. 3, 187-88, 141-42. The Commissioner
correctly concluded that if the AL&L report was admitted an expert report, its
admission was error.14 Id.
14
And even an appropriate admission of the report would not have cured the error of admitting the multi-leveled
hearsay evidence contained within it. See discussion 4(b), supra.
18
The second expert issue presented in the administrative case was admission
of the reports and testimony from Mike Moses, an expert with significant experience
in Texas education. R.R. 3, 188-90, 142-44. The subject of Moses’s testimony was
whether the allegations against Ortiz constituted “good cause” for termination of her
contract. R.R. 3, 188, 142.
If “good cause” were a question of fact, admission of expert testimony would
have been appropriate. Tex. R. Evid. 702. Under certain circumstances, expert
testimony can be appropriate to address mixed questions of fact and law. Greenberg
Traurig of N.Y., P.C. v. Moody, 161 S.W.3d 56, 94 (Tex. App.—Houston [14th Dist.]
2004, no pet.). However, the Texas Education Code provides that “[a] determination
by the hearing examiner regarding good cause for the . . . termination of a . . . term
contract is a conclusion of law. Tex. Educ. Code § 21.257(a)(2)(a-1).
Plano’s brief argues extensively that this recent legislative amendment out not
to have the result of excluding expert testimony regarding “good cause.” Plano’s
Brief, 74-76. Regardless, application of the rules of evidence to the recent
amendment of the Education Code compels the conclusion that the Commission was
correct. Expert testimony is not appropriate to address a pure question of law. Id.,
Tex. R. Evid. 702. For this reason, the Commissioner correctly held that the hearing
examiner’s admission of Mr. Moses’s reports and testimony was erroneous. R.R. 3,
188-190, 142-44.
19
5. Allegations without supporting factual findings (Plano’s cross-
issue 5)15
The district requested that the Commissioner find “good cause” based on
certain allegations for which the hearing examiner made no corresponding findings
of fact. R.R. 190, 144. Specifically, the district requested that the Commissioner
find good cause based on allegations that Ortiz’s tape recorded her conversation with
a student without the parent’s consent; made false statements during the Parks,
Melton and AL&L investigations, and filed grievances against district employees
for purposes of retaliation. Id. The hearing examiner, not the district, resolves
conflicts in evidence and credibility disputes. Montgomery Indep. Sch. Dist. v.
Davis, 34 S.W.3d 559, 564 (Tex. 2000). Because no findings of fact support the
allegations of improper recording, false statements to investigators and retaliatory
use of grievances, the Commissioner correctly rejected the district’s assertion of
“good cause” on these grounds.
6. Summary of Response to Plano I.S.D.
The Commissioner correctly concluded that the district failed to provide Ortiz
adequate notice of some violations, waived others through extension of her term
contract, and improperly sought to use her judicial statements against her. Further,
the Commissioner correctly concluded that Plano I.S.D. is prohibited from relying
15
This issue is identified in Plano’s list of cross-points but counsel does not find it addressed in the body of Plano’s
brief.
20
on allegations unsupported by findings and that its expert reports and testimony were
improperly admitted. Nonetheless, the Commissioner supports Plano I.S.D.’s
decision to terminate Ortiz’s term contract for cause as described in Section B., infra.
Finally, even if the court determines that the commissioner’s decision was flawed
by a legal error or procedural irregularity, reversal is allowed only if the court
determines that the irregularity or error likely led to an erroneous decision. Id.,
§ 21.307 (g); Charter Med.-Dall., Inc. 665 S.W. at 452; Matthews, 268 S.W.3d at
172 (Commissioner’s reasoning immaterial if conclusion is correct).
B. Grounds accepted by the Commissioner
Despite the fact that the Commissioner rejected many of the “good cause”
grounds asserted by the district, the Commissioner found that “good cause” existed
to terminate Ortiz’s contract. R.R. 3, 190-193, 140-44. This finding was based on:
Ortiz’s violation of a directive issued to her on March 23, 2012; and Ortiz’s
statements in an audio recording of her conversation with a former student. Id.
These items of evidence form the basis of the Commissioner’s finding of “good
cause,” based on Ortiz’s violation of the following provisions of the Educators’ Code
of Ethics:
Introductory Paragraph: The Texas educator, in maintaining the
dignity of the professional, shall respect and obey the law, demonstrate
personal integrity, and exemplify honesty.
Standard 1.4: The educator shall not use institutional or
professional privileges for personal or partisan advantage.
21
Standard 3.8: The educator shall maintain appropriate
professional educator-student relationships and boundaries based on a
reasonably prudent educator standard.
Standard 3.9: The educator shall refrain from inappropriate
communication with a student or minor . . . .
1. The March 23, 2012, agreement (Ortiz’s issues 1, 4)
The March 23, 2012, agreement, which was signed by investigator Parks for
the district and by Ortiz, stated, in pertinent part:
This investigation or inquiry is confidential . . . As such, you must not
discuss this investigation or inquiry, or any information that you and
the investigator discuss, with other District employees . . . or any other
person who is in any way connected to the incident or event under
investigation, or who is a possible witness in this investigation.
Disclosure of information pertaining to this investigation may result in
disciplinary action against the disclosing employee.
(emphasis in original). R.R. Pt. 1, 360.16 The document contains no expiration date
or language suggesting that its applicability is limited to the duration of the
investigation.17 Id.
16
Ortiz challenges the constitutionality of the confidentiality directive she was found to have violated. There is no
separate cause of action against the Commissioner for the alleged free speech violation, thus the Commissioner will
not respond to Ortiz’s constitutional claim unless directed to do so by the court.
17
Though Ortiz appears to have abandoned this argument on appeal, in the trial court she sought to obtain requests
for admissions pertaining to statements and interactions made in a subsequent meeting with the district regarding
another employee. In appeal of a Chapter 21 case, the court is limited to consideration of the administrative record
from the proceedings below. Tex. Ed. Code § 21.307 (e); Aleman v. Edcouch Indep. Sch. Dist., 982 F. Supp. 2d 740-
41 (S.D. Tex. 2013) (court may not receive evidence outside the administrative record). The record regarding “good
cause” for termination of her contract—the “substantial evidence” appeal-- is complete.
22
It is undisputed that in August 2012 Ortiz asked one of the students for details
regarding his May 2012 interview by Melton (attendant to the Parks investigation).
See discussion in section B.2., infra. The Commissioner correctly found that Ortiz’s
discussion of the investigation with the students was, in light of the district’s
directive, insubordination constituting “good cause” for termination. R.R. 3, 190-
93, 143-47.
2. Ortiz’s recorded communications with student (Ortiz’s issue 1)
The Commissioner found additional “good cause” for the termination in the
substance of Ortiz’s August 2012 communications with the student about the
investigation. R.R. 3, 190-93, 144-47. The district noticed Ortiz regarding the
following violations of district policy:
 You discussed confidential personnel matters in violation of District Policy
and the signed confidentiality statement (R.R. Pt. 3, 163);
 You involved students in your personal complaints and litigation . . . (Id.);
 You engaged in unprofessional conduct by inappropriately discussing with
your students certain confidential personnel matters involving yourself and
Mr. Gober in violation of District Policy (R.R. Pt. 3, 164);
 You engaged in unprofessional conduct by seeking to inappropriately
involve your students in your personal complaints and litigation against
the District and Mr. Gober (R.R. Pt. 3, 165).
23
Each of these findings is repeated in the attachment to the district’s second notice of
termination letter. R.R. Pt. 3, 173-182.
The Commissioner found that the communication with the student
demonstrated that Ortiz was using the conversation to obtain information about what
the investigators knew, what they were interested in, and whether the investigation
was focused on her. R.R. 3, 192, 146. The information Ortiz sought, the
Commissioner found, was not merely information to determine the extent of the
student’s knowledge with an eye toward her lawsuit against Gober. Id. Instead, her
communication with the student was aimed at gathering information about the
confidential investigation. Id.
The Commissioner further found that the tone of the communication,
including describing another student as “goofy-looking” and telling the student
during the conversation that the student’s rendition of events was “good,” violated
appropriate student-teacher boundaries. R.R. 3, 192-93, 146-47.
The Commissioner found that substantial evidence, demonstrating multiple
violations of the Educators’ Code of Ethics, supported the termination of Ortiz’s
contract. R.R. 3, 190-193, 140-44.
CONCLUSION AND PRAYER
The Commissioner and the district court correctly affirmed Plano’s decision
to terminate the teaching contract of appellant Ortiz. Their decisions are supported
24
by substantial evidence, good cause supports Ortiz’s termination and the district
court’s judgment should be in all things affirmed. The Commissioner further prays
to receive any additional and further relief to which he is entitled, whether at law or
in equity.
Respectfully submitted,
KEN PAXTON
Attorney General of Texas
CHARLE E. ROY
First Assistant Attorney General
JAMES E. DAVIS
Deputy Attorney General for Defense Litigation
DAVID A. TALBOT, JR.
Chief, Administrative Law Division
/s/ Robin Sanders
ROBIN SANDERS
Assistant Attorney General
Texas Bar No. 09310900
Office of The Texas Attorney General
Administrative Law Division
P. O. Box 12548
Austin TX 78711-2548
Phone: (512) 475-4005
Fax: (512) 320-0167
Email: robin.sanders@texasattorneygeneral.gov
FOR THE COMMISSIONER
25
CERTIFICATE OF COMPLIANCE
I hereby certify compliance with Texas Rules of Appellate Procedure 9 and
that there are 4,743 words in this document. Microsoft Word was used to prepare
this filing and calculate the number of words in it.
/s/ Robin Sanders
ROBIN SANDERS
CERTIFICATE OF SERVICE
I certify that the above was service on this 13th day of April, 2015, via e-service
and/or email to:
Richard L. Arnett
Texas Bar No. 01333300
Brim, Arnett, Robinett & Conners, P.C.
Attorney at Law
2525 Wallingwood Drive, Bldg. 14
Austin, Texas 78746
Phone: (512) 328-0048
Fax: (512) 328-4814
rarnett@brimarnett.com
Richard Abernathy
State Bar No. 00809500
Charles Crawford
State Bar No. 05018900
1700 Redbud Boulevard, Suite 300
McKinney, Texas 75069
214-544-4000 telephone
214-544-4040 facsimile
ccrawford@abernathy-law.com
rabernathty@abernathy-law.com
Attorneys for Plano ISD
/s/ Robin Sanders
ROBIN SANDERS
26