Douglas W. Kirk v. Plano Independent School District Nancy Humphrey, Individually and in Her Official Capacity as President of the Board of Trustees of the Plano Independent School District Anika Vaughan, Individually and in Her Official Capacity as Teacher for Plano

August 6, 2015
IN THE
THIRD COURT OF APPEALS
COMAL COUNTY, TEXAS
APPELLANT
Douglas W. Kirk
V.
APPELLEE
Piano Independent School District, et al
NO. 03
013-15-00211-CV
Appellant's Brief on the Merits
Filed by Douglas Kirk, Appellant, pro se
Douglas Kirk
1850 Old Sattler Road
Canyon Lake, TX 78132
(830)237-7313
dougkirk@gvtc.com MG 062015
03
NO. 013-15-00211-CV
IN THE
THIRD COURT OF APPEALS
AUSTIN, TEXAS
Douglas W. Kirk V. Piano Independent School District, Et Al
Original Proceeding from the 22nd District Court,
The Honorable R. Bruce Boyer, Presiding
Appellant's Brief on the Merits
Douglas W. Kirk
1850 Old Sattler Road,
Canyon Lake, Texas 78132
Telephone: (830) 2376-7313
Pro Se Litigant
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IDENTITY OF PARTIES AND COUNSEL
Pursuant to Texas Rule of Appellate Procedure 38.1(a), appellant presents the
following list of all parties and names and addresses of its counsel:
Appellant/Plaintiff: Counsel:
Douglas W. Kirk Douglas W. Kirk {Pro Se)
1850 Old Sattler Road
Canyon Lake, TX 78132
Telephone: (830)237-7313
Respondent:
The Honorable R. Bruce Boyer
22th Judicial District Court
New Braunfels, Texas
789 Mam Street
New Braunfels, Texas 12345
Appellee/Defendant: Counsel:
Piano Independent School District Stephen R. Marsh
Nancy Humphrey Texas State Bar No. 13019700
Anika Vaughan David Klosterboer & Associates
Joseph Parks 1301 East Collins Boulevard
Courtney J. Washington Suite 490
Richardson, TX 75081
Telephone: (214) 570-6292
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TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL 2
TABLE OF CONTENTS 3
TABLE OF AUTHORITIES 4
STATEMENT OF THE CASE 5
STATEMENT REGARDING ORAL ARGUMENTS 6
ISSUES PRESENTED 7
STATEMENT OF FACTS 8
SUMMARY OF THE ARGUMENT 12
ARGUMENT. 16
PRAYER 37
APPENDIX 38
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TABLE OF AUTHORITIES
Cases
Catalina Development, Inc. v. County oj El Paso, 121 s.w.3d 704, 704
(tex.203) 14,34,35
City ofCorpus Christi v Eby, Not Reported in S.W3d, 2011 WL 1437002,
Tex.App. - Corpus Christi, 2011 13, 20
Gallegos v. Escalon, 918 S.W.2d 62 (Tex. App.—Corpus Christi 1996...14, 22, 23
Gonzalez v. Ison-Newsome, 68 S.W.3d 2 (Tex. App. -Dallas 1999) 27, 28
Hinterlongv. Clements, 109 S.W.3d 611 (Texas App.—Fort Worth 2003) 24-26
JerrellD. INMAN, Sr., Appellant, v. CITY OF KATY and Billy Johnson, in his
Capacityas Assistant ChiefofPolice, Appellees, 900 S.W.2d 871 (1995) 33
Mission Consol. Independent School District v. Garcia, 253 S.W.3d 653
(Tex. 2008) 22
Texas Bay Cherry Hill, L.P v. City ofFort Worth, 257 S.W.3d 379 (Tex.App.-
For4 Worth 2008 no pet) 18
Will. v. Conroelndep. Sch. Dist., 809 S.W.2d 954 (Tex.App.-Beaumont 1991,
no writ) 20
Statutes
Texas CIVIL PRACTICE AND REMEDIES CODE, TITLE 4. LIABILITY IN
TORT, CHAPTER 73. LIBEL
Texas CIVIL PRACTICE AND REMEDIES CODE, TITLE 5. GOVERNMENTAL
LIABILITY, CHAPTER 101. TORT CLAIMS
EDUCATION CODE, TITLE 2. PUBLIC EDUCATION, SUBTITLE D. EDUCA
TORS AND SCHOOL DISTRICT EMPLOYEES AND VOLUNTEERS, CH.22
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STATEMENT OF THE CASE
Nature of the Case: Appellant/Plaintiff Douglas Kirk brought a civil
defamation cause of action against Appellee/Defendants
Piano Independent School District, Nancy Humphrey,
Anika Vaughan, Joseph Parks and Courtney J. Washington
as a result of libel per se suffered because of actions
performed beginning January 28, 2013. Appellant alleges
Appellee acted outside governmental duties and functions.
Respondent: The Honorable R. Bruce Boyer, 22nd District Court,
Comal County, Texas.
Respondent's Action: March 9, 2015, the trial court entered an Order Granting
Motion To Dismiss employees Nancy Humphrey, Anita
[sic] Vaughn [sic], Joseph Parks and Courtney J.
Washington, and, Piano Independent School District.
Respondent ordered that Appellant take nothing by way
of his suit.
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STATEMENT REGARDING ORAL ARGUMENTS
Appellant does not seek oral arguments.
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ISSUES PRESENTED
1. Did the trial court err in dismissing the case under the Texas Tort Claims Act
(Texas CIVIL PRACTICE AND REMEDIES CODE, TITLE 5. GOVERNMENTAL
LIABILITY, CHAPTER 101. TORT CLAIMS) when the case was actually filed
under the Texas Defamation Statute (Texas CIVIL PRACTICE AND REMEDIES
CODE, TITLE 4. LIABILITY IN TORT, CHAPTER 73. LIBEL)?
2. Did the trial court err in applying the Texas Tort Claims Act with respect to a
school district in a case that does not involve motor vehicles?
3. Did the trial court err and violate the Texas Tort Claims Act by failing to allow
Appellant to exercise provisions in the statute, to wit, "remedies additional"?
4. Did the trial court err in failing to require Appellee to present a defense of
official immunity to back its claim of immunity?
5. Did the trial court err in failing to recognize Appellant's claim of waiver of
immunity granted by conduct, despite evidence produced by Appellant?
6. Did the trial court fail to consider factual evidence presented by Appellant, on "a
case-by-case basis," to establish waiver-by-conduct?
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STATEMENT OF FACTS
Appellant, Douglas Kirk, had a friend by the name of Melanie Lauren Smith,
who was in an abusive relationship with her husband, Bramlette Jason Smith. On
September 11,2011 and again on December 2,2012, Melanie Lauren Smithreached
outto Douglas Kirk seeking his assistance in getting away from her husband, to which
Douglas Kirk and Rittler Strachan, R.N., responded the first time, and Douglas Kirk
and Michael Wayne Davis responded the second time.
Bramlette Jason Smith evidently told his sister, Appellee school teacher Anika
Lee Vaughan, about Douglas Kirk's helping his wife. Bramlette Jason Smith is on
record in the court system ofhaving abused his wife beginning on November 3, 2009
and ending on May 26, 2013. Bramlette Jason Smith pled guilty to "Assault Causes
Bodily Injury Family Violence" (Case No. 006-84632-2013, County Court at Law
6, 380th District Court) on February 17, 2014, and was divorced from Melanie
Lauren Smith on August 12, 2014 (Case No.380-56185-2012, 380th District Court,
Collin County, Texas).
On January 28, 2013, Appellee school teacher Anika Lee Vaughan wrote an
e-mail and sent it to Appellee school principal Courtney J. Washington and Appellee
Director of Security Joseph Parks in which she made a series of false statements of
verifiable fact about Douglas Kirk-which Appellant contends amount to libel per se,
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identifying him as a stalker, a crime for which he has never been charged, tried or
convicted. (On September 22,2011, Bramlette Jason Smith did accuse Douglas Kirk
of stalking after Kirk and nurse Strachan responded to Melanie Lauren Smith's plea
for help the first time, and a police investigation was started in the matter. On October
24, 2011, the case was closed and labeled "no information" by State Attorney's
investigator Adam Reith.)
Douglas Kirk became aware of the libelous e-mail and an e-mail exchange by
Appellees on July 1,2013 upon the fulfilment of an open records request by the Piano
Independent School District. Douglas Kirk then filed a Level I grievance on July 8,
2013, under Piano Independent School District (PISD) board policy, which was
denied on July 22,2013. In the denial, PISD Chief Human Resources officer Tamria
Griffin indicated that the e-mail was a "private matter" and the district had no
intention of taking any action against Vaughan when an employee acts outside the
scope of his or her employment. In an attempt to clear his name and to set right the
lies that were being written and passed around about him, Douglas Kirk appealed
the result to a Level II Grievance on August 8, 2013. He did this under published
PISD board policy, only to be misled by the PISD attorney Brandy Davis that he
could appear at the Level II hearing via telephone (as had been done in the past), or,
not appear at all. Douglas Kirk made himself available but was not called for the
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hearing and the matter was dismissed by PISD, under the direction ofAppellee Nancy
Humphrey, who was the PISD Board President. (Humphrey did not receive a board
vote to authorize this action.) PISD indicated the grievance was dismissed August
23,2013 because Douglas Kirk was notpresentat the hearing, even though the offer
was made to him through PISD counsel not to bephysicallypresent.
Exhausting the administrativeremedies, Douglas Kirk then sued the Appellees
in both their official and individual capacities under Texas Statute, Civil Practice and
Remedies Code, Title 4, Chapter 73. LIBEL. Douglas Kirk sued as he did because
PISD stated the e-mail constituted private matters and was outside the duties and
functions ofAnika Lee Vaughan, and yet, the PISD provided resources to publish
and re-republish the original e-mail and to transmit a related e-mail exchange, and
threatened to take police action against Douglas Kirk (based upon the libelous
e-mail). PISD also used public resources to dismiss the grievance without a hearing
and the Board President, Appellee Nancy Humphrey, acted without board authority.
Upon being sued by Douglas Kirk, the Appellee then denied the allegations
(February 24, 2014) and stated as its number one defense that the "Plaintiff's claim
is barred by governmental immunity." Appellee moved (March 3, 2014) for a
dismissal of the employees under the Texas Tort Claims Act.
The trial judge did not rule on the original motion for dismissal. The Appellee
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moved for dismissal a second time (October 1, 2014), but in the second dismissal
moved that the employees and PISD be dismissed simultaneously under the TTCA.
The first item in Defendant's Motion to Dismiss under "Introduction" was "The
Defendants have immunity to the claims ofthe Plaintiff," but Appellee, never offered
an affirmative defense to the trial judge to back up official immunity.
Appellant argued beforethe trialjudge both in writingand orallyApril 4,2014,
August 14, 2014 (oral), December 14, 2014 and March 5, 2015 (oral), that his case
was not filed under the TTCA, citing that the statute only applied to school districts
when motor vehicles are involved and that Appellee's conduct waived any claims of
immunity. Appellee again alleged immunity but again offered no defense and
depended upon the TTCA for protection. Douglas Kirk pointed out that the TTCA
acknowledged that there are "remedies additional" and he made the case that the
PISD waived governmental immunity by their conduct and he cited written evidence
where PISD stated the original e-mail was outside the scope of employment of the
the employee and therefore was of no interest to PISD.
Upon a second hearing before the trial judge March 5, 2015 (oral), the judge
heard argument from both sides and ultimately dismissed the entire case March 9,
2015.
Appellant then appealed to the Third Court ofAppeals April 6, 2015.
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SUMMARY OF THE ARGUMENT
It appears as though the Texas Tort Claims Act (TTCA) was created to make
it easier for citizens to sue certain government entities under specifically
enumerated circumstances. In the case of school districts, the statute specifically
says that it applies only in cases involving motor vehicles ("SUBCHAPTER C.
EXCLUSIONS AND EXCEPTIONS. Sec. 101.051. SCHOOL AND JUNIOR
COLLEGE DISTRICTS PARTIALLY EXCLUDED. Except as to motor vehicles,
this chapter does not apply to a school district or to a junior college district.")
The TTCA acknowledges that there are additional remedies, suggesting that
if citizens can advance another theory regarding suit, then that is permissible and is
not prevented by the TTCA. ("SUBCHAPTER A. GENERAL PROVISIONS
Sec. 101.003. REMEDIES ADDITIONAL. The remedies authorized by this
chapter are in addition to any other legal remedies.")
The TTCA was never intended to encumber citizens who have legitimate
claims against government entities and can demonstrate that when a government
entity acts outside its duties and functions, a waiver-of-conduct is granted and a
suit may move forward.
The Appellant sued both individuals and a government entity because there
was movement between individual status and employee status, with individuals
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taking actions that they then used the government entity to further. The
government entity acknowledged in writing that actions were "private". (CR: See
Plaintiffs Exhibit 4 Response to Level I Grievance page 2 at [6] and [7], as
attached to Plaintiffs Response to Defendants' Second Motion To Dismiss.) But
then, the government provided the resources for the actions to take place and used
its own resources to prevent the Appellant from exercising his remedies under
published policy. (CR: See Plaintiffs Exhibit 5 and 6—email exchange with PISD
Attorney Brandy Davis~as attached to Plaintiff's Response to Defendants' Second
Motion To Dismiss.)
In the present case the Appellee has capitalized on the idea that all things
sounding in tort fall under the TTCA. However, that contradicts the statute itself
and Justice Garza seems to agree. (See City ofCorpus Christi v Eby, Not Reported
in S.W3d, 2011 WL 1437002, Tex.App. - Corpus Christi, 2011).
The Appellant advanced the argument before the trial court that the
Appellee's actions constituted a waiver-by-conduct of governmental immunity
(CR: See Plaintiff's Response to Defendants' Second Motion To Dismiss page 3-7
at [8] and [9]; [11-13] and page 8 - 14 at [17-21]. Also see RR: Hearing before the
Court, March 5, 2015, Motion To Dismiss page 11 at line 12 through page 13 at
line 7.) The Appellant offered written evidence in his briefs (CR: See Plaintiff's
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Response to Defendants' Second Motion To Dismiss, Plaintiff's Exhibits 1 through
7), which should have been considered by the trial court, (See Catalina Develop
ment, Inc. v. County ofEl Paso, 121 s.w.3d 704, 704 (tex.203), to demonstrate that
a waiver-by-conduct did exist. The Appellee offered no evidence backing up its
claim of official immunity given the facts of the case. Yet the courts have
indicated the entity claiming immunity must make an immunity defense. (See
Gallegos v. Escalon, 918 S.W.2d 62 (Tex. App.—Corpus Christi 1996).
However, the trial judge stated, "The Court has reviewed the pleadings,
arguments of counsel, both written and oral, and the authorities cited and
presented." and erred in several respects. (CR: See Letter signed by trial judge the
Honorable R. Bruce Boyer, March 9, 2015 which accompanied signed order to
dismiss.)
Appellant made these arguments to the Trial Court:
1. Appellant's suit was filed under Texas Libel law and not the TTCA.
2. Appellant offered evidence of a waiver-by-conduct and pointed out that
he was exercising "remedies additional."
3. Appellee offered NO affirmative defense of official immunity for its
actions despite case law to the contrary.
4. The Trial Court was bound to consider the evidence on a case-by-case
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basis but evidently did not. "Plaintiff urges the Court to consider the set of facts as
enumerated to determine waiver of immunity by conduct." (CR: See Plaintiff's
Response to Defendants' Second Motion To Dismiss page 13 at [20].)
5. Appellees acted outside their government function and duties and are not
shielded by sovereign immunity or official immunity.
6. Appellant summarized for the Court: "Plaintiff's cause does not fall under
the Texas Tort Claims Act. This is a defamation suit under Libel Law. The
governmental entity gave permission to the Plaintiff to file suit by virtue of its clear
actions of conduct outside its function and scope of duties. Immunity claims are moot.
The Court need only look at the Appellee's own words to determine that they, them
selves, didn't even consider this matter to be within their governmental function. Yet,
and this is key, public resources were used in transmission, and spread ofthe libelous
statements, and, in an effort to quash Appellant's efforts to have the matter heard
within the system, so as to put to rest the lies that were told about him. What are the
lies and the false statements of fact? They are statements that lead people to believe
that the Appellant is a sexual predator—a stalker—an infamous crime ofserious nature
which carries with it not only social stigma, but serious prison time. Truth as a defense
will fail miserably once the matter goes to trial." (CR: See Plaintiffs Response to
Defendants' Second Motion To Dismiss page 13-14 at [21].)
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ARGUMENT
1. The trial court erred in dismissing the case under the Texas Tort Claims
Act. Appellant made the argument that his suit was filed under the Libel Statute,
(See CR: Original Petition at page 3, [4.1]; and see CR: Plaintiffs Response to
Defendants' Motion to Dismiss at page 1-2, [2]; and Plaintiff's Response To
Defendants' Second Motion To Dismiss, page 1 [1]), and not the Texas Tort Claims
Act (See CR: Plaintiff's Response to Defendants' Motion to Dismiss at page 2-3,
[9-10]). The Appellant made the argument that governmental immunity was
defeated under a waiver-by-conduct (See CR: Plaintiffs Response to Defendants'
Second Motion To Dismiss page 3-7 at [8] and [9]; [11-13] and page 8 - 14 at [17-
21]. Also see RR: Hearing before the Court, March 5, 2015, Motion To Dismiss
page 11 at line 12 through page 13 at line 7.) The Appellant offered written evidence
in his briefs (See CR: Plaintiff's Response to Defendants' Second Motion To
Dismiss, Plaintiffs Exhibits 1 through 7).
The trial judge wrote "The Court is bound not only by the statutory provisions
of the Texas Tort Liability Act, but also the appellate interpretations of the same."
(See CR: Judge's letter dated March 9, 2015 accompanying Order Granting Motion
To Dismiss.)
Appellant argues that the trial judge had clear opportunity to apply the TTCA,
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had he fully considered Appellant's arguments regarding "remedies additional"
authorized by the TTCA statute itself and "waiver-by-conduct," (backed up by case
law), and by applying it, he would not have had to dismiss the suit. (The TTCA is
applied by not applying the irrelevant provisions and by applying the relevant one—
"remedies additional.") (See more below.)
(NOTE: Appellee obviously accepted Appellant's suit under Texas Civil
Practice and Remedies Code Chapter 73 Libel law, which mandates the Plaintiff to
sue the Defendant in his home district. Defendant's did not challenge the venue,
which they could have done had the suit been filed under the TTCA. (See Texas
Civil Practice and Remedies Code Title 2, Subtitle B, Chapter 15, Subchapter A, Sec.
15.002 (a) and Subchapter B, Sec. 15.017, LIBEL, SLANDER, OR INVASION OF
PRIVACY)
2. The trial court erred in applying the Texas Tort Claims Act with respect to
a school district in a case that does not involve motor vehicles.
The Texas Tort Clims Act is self-limiting. The statute states: "Except as to
motor vehicles, this chapter does not apply to a school district or to a junior college
district." ("CIVIL PRACTICE AND REMEDIES CODE. TITLE 5.
GOVERNMENT LI ABILITY CHAPTER 101. TORT CLAIMS. SUBCHAPTER
C. EXCLUSIONS AND EXCEPTIONS: Sec. 101.051. SCHOOL AND JUNIOR
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COLLEGE DISTRICTS PARTIALLY EXCLUDED.) Appellant argued this to the
court. (See CR: Plaintiff's Response to Defendants' Motion to Dismiss at page 3-4
[15]. Also see RR: Hearing before the Court, March 5, 2015, Motion To Dismiss
page 11 at line 12 through page 13 at line 7.)
The Appellee seems to agree in stating, "What the Tort Claims Act does is, is
it sets out a few exceptions to the general rule of sovereign immunity, and it also pro
vides procedures by which a plaintiff can —can pursue those exceptions." (See RR:
Hearing before the Court, March 5, 2015, Motion To Dismiss page 6 at line 25 and
page 7 at lines 1-3, Bret Walton speaking for Appellee.)
Appellant could not pursue those exceptions as there was no motor vehicle
involved in the case. Therefore, the TTCA did not apply to the facts of the
case and Appellant went to the Libel Law and to the task of breaking immunity
protections by applying the waiver-by-conduct theory based upon the actions of the
Appellees.
Texas Bay Cherry Hill, L.P. v. City ofFort Worth, 257 S.W.3d 379 (Tex.App.-
For4 Worth 2008 no pet) bolsters Appellant's argument that his suit is not under the
Texas Tort Claims Act, as the Court ofAppeals recognizes statutory limitations to
the TTCA: "The legislature granted a limited waiver of immunity in the Texas Tort
Claims Act, which permits suits to be brought against governmental units in certain
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narrowly-defined circumstances. Tex. Dep't of Criminal Justice v. Miller, 51 S.W.3d
583, 587 (Tex.2001); see also Dallas County MHMR, 968 S.W.2d at 341."
Appellant's suit does not fall under the Texas Tort Claims Act's "narrowly-
defined circumstances." As stated, school districts are excluded except as
pertaining to motor vehicles.
What this means is that when it comes to breaking governmental immunity,
the TTCA gives the citizens a free pass if a motor vehicle is involved in a case.
What it does not mean is that there are no other ways to defeat governmental
immunity. Appellee made the argument before the trial judge that the TTCA
suggests that school districts have governmental immunity no matter what, with
the only exception of motor vehicles within the TTCA. But this is misleading.
"There's no waiver provided by the statute to allow Mr. Kirk to sue us, and
the school district should be dismissed on those grounds. Basically, we still have
immunity, is —is the gist of the - of the law." (See RR: Hearing before the
Court, March 5, 2015, Motion To Dismiss page 9 at line 7-11, Bret Walton
speaking for Appellee.)
Everyone agrees there is no motor vehicle involved in this case. By his own
admission, then, if the trial judge is bound by the statute to apply the Texas Tort
Claims Act only to school district cases in which motor vehicles are involved, then
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the TTCA can't apply to this case and therefore it is a judicial error to dismiss the
cause under the TTCA.
Further, The Appellee quotes from Williams v. Conroe Indep. Sch. Dist., 809
S.W.2d 954 (Tex.App.-Beaumont 1991, no writ), "An independent school district
is an agency of the state and, while exercising governmental functions, is not
answerable in a suit sounding in tort." (See CR: Reply Brief on Defendants'
Motion To Dismiss, page 2 at [9].) However, Appellant has always maintained that
Appellee acted outside the exercise ofgovernmentalfunctions and therefore is
indeed answerable in a suit sounding in tort.
3. The trial court erred and violated the Texas Tort Claims Act by failing to
allow Appellant to exercise provisions in the statute, to wit, "remedies additional".
Applying the Texas Tort Claims Act to all things sounding in tort with respect
to election-of-remedies is self-contradictory, since the TTCA offers "REMEDIES
ADDITIONAL." (See Sec. 101.003. REMEDIES ADDITIONAL. The remedies
authorized by this chapter are in addition to any other legal remedies.") What
remedies is the statute referring to if all things sounding in tort fall under the TTCA?
In CityofCorpus Christi v Eby, Not Reported in S.W3d, 2011 WL 1437002,
Tex.App. - Corpus Christi, 2011, Justice Dori Contrearas Garza writes, in a
Concurring Memorandum Opinion, "However, I believe the premise underlying the
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Garcia assumption—that 'the Tort Claims Act is the only, albeit limited, avenue for
common law recovery against the government,' 253 S.W.3d at 659—is wrong. On
the contrary, it is eminently possible that a governmental unit's immunity to
common-law tort claims may be waived by means other than the limited waiver
provided in the Act."
Appellant believes Justice Garza is making an insightful statement. With
respect to school districts, the TTCA offers limiting language and, it spells out to
the citizens that there are additional remedies not specifically enumerated by the
statute. The Appeals Court is asked to consider this apparent contradiction. What
is a party supposed to do when the law says it applies only under specific
circumstances, offers other options (other remedies) and then the Courts try to
make the statute fit all situations despite the statutary language?
The trial judge attempted to do the right thing, but could not because of the
contradiction between the language of the statute and what the Appellee says is the
court interpretation. But maybe neither the statute, nor the courts, intended for the
TTCA to prevent a suit in which the government entity, its employees and
individuals acted outside their duties andfunctions to harm a citizen of the State of
Texas.
The courts have also found that the TTCA election-of-remedies scheme does
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not apply in all cases. When other remedies exist, the courts have allowed parties
to exercise alternative theories and have not forced dismissal through the TTCA.
Mission Consol. Independent School District v. Garcia, 253 S.W.3d 653
(Tex. 2008) was an age discrimination case and relates to the Texas Commission
on Human Rights Act and raised a fundamental question of discrimination law. The
court mentions the Tort Claims Act's election-of-remedies provision but
goes on to find that, "the Act's election scheme does not bar the employees'
recovery under the Texas Commission on Human Rights Act (TCHRA) because
the Legislature has consented to suits against the government under the TCHRA."
While the Appellant did not file under the TCHRA, he did file under an additional
remedy and it is a judicial error to dismiss Appellant's case when the courts have
allowed other causes to move forward using alternative theories, i.e. "remedies
additional."
Mission demonstrates that the courts do allow "remedies additional" and
that not all cases come under the Texas Tort Claims Act, as the Appellees' suggest.
The Legislature has given statutory consent to sue, waiving immunity in
specific situations (Texas Tort Claims Act, Texas Commission on Human Rights
Act) and, by clearly defining the tests that must be applied by a defendant in order
to make an immunity claim. Gallegos v. Escalon, 918 S.W.2d 62 (Tex. App.—
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Corpus Christi 1996). There is no assumption that all governmental entities all the
time, enjoy immunity. Barring a plaintiff without entertaining his theory and
without requiring governmental units to make an immunity defense, if they so
choose, in a required manner, would not lead to justice and is a judicial error.
4. The trial court erred in failing to require Appellee to present a defense of
official immunity to back its claim of immunity.
In Gallegos v. Escalon, 918 S.W.2d 62 (Tex. App.—Corpus Christi 1996)
the Court found that a superintendent who allegedly made public statements
defaming two former school board trustees was NOT protected by sovereign
immunity because he failed to make his immunity case. The higher court affirmed
the trial court's denial of the superintendent's summary judgment. Superintendent
Gallegos asserted his immunity defense based upon the Texas Education Code,
which says:
"EDUCATION CODE
TITLE 2. PUBLIC EDUCATION
SUBTITLE D. EDUCATORS AND SCHOOL DISTRICT
EMPLOYEES AND VOLUNTEERS
CHAPTER 22. SCHOOL DISTRICT EMPLOYEES AND
VOLUNTEERS
Sec. 22.0511. IMMUNITY FROM LIABILITY, (a) A professional
employee of a school district is not personally liable for any act that is
incident to or within the scope of the duties of the employee's position
of employment and that involves the exercise ofjudgment or
discretion on the part of the employee, except in circumstances in
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which a professional employee uses excessive force in the discipline
of students or negligence resulting in bodily injury to students."
Unfortunately for superintendent Gallegos, he was not able to adequately
make his defense. The Appellees in the present cause also fall short in making an
immunity defense based solely on the facts of the case because they cannot show
that their documented actions were "incident to or within the scope of the duties of
the employee's position of employment..." Furthermore, they did not even attempt
mount an affirmative defense of official immunity before the trial court.
Gallegos is a case which spells out the Appellees' burden regarding
immunity. This case also demonstrates that school teachers can be held
accountable for their actions outside their governmental functions and duties.
In Hinterlong v. Clements, 109 S.W.3d 611 (Texas App.—Fort Worth 2003),
a student by the name of Matthew T. Hinterlong alleges that he was set up for
expulsion by others, in retaliation for police involvement in some misuse by
students of his home when he was out of town. The straight-A tennis playing
Hinterlong was accused of having alcohol in his vehicle while at school. An
anonymous tip was passed along to authorities, who searched the vehicle and
found a "thimble full" of what "smelled" like alcohol. Hinterlong claimed he was
set up and sought the name of the tipster.
The Court ofAppeals dealt with a wide variety of issues, one of which was
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whether or not Clements [a teacher in the district] and Arlington ISD had sovereign
immunity against Hinterlong's claims, which included defamation. The Court
found that Clements was not protected and points out that she was not performing
actions incident to or within the scope of her professional duties.
The following except from the Hinterlong ruling is lengthy, but addresses
several issues involved in the present cause.
"Additionally, real parties in interest fail to distinguish between
immunity from suit and immunity from liability, which are two distinct
principles. See Tex. Dep 't ofTransp. v. Jones, 8 S.W.3d 636, 638 (Tex.
1999). While immunity from suit (sovereign immunity) abridged claims at
common law, immunity from liability (official immunity) is an affirmative
defense to common law claims that must be pleaded or it is waived. See
Green Int'l, Inc. v. State, 877 S. W.2d 428,436-37 (Tex.App. -Austin 1994,
writ dis,n 'd) (holding sovereign immunity is common-law doctrine that
preceded Texas Constitution so application of doctrine to preclude litigation
of breach of contract and quantum meruit claims does not violate open
courts provision); Jones, 8 S.W.3d at 638 (recognizing distinction between
immunity from liability, which is an affirmative defense that must be
pleaded or it is waived, and immunity from suit, which is jurisdictional and
requires complaining party to establish state's consent to be sued); Hayes v.
Patrick, 71 S.W.3d 516, 521 (Tex.App.-Fort Worth 2002, no pet.) (noting
official immunity is common law affirmative defense that protects
government officers and employees from liability for conduct that would
otherwise be actionable). Absent both pleading and proof of immunity,
Clements can be held liable under Hinterlong's claims. See Univ. ofHouston
v. Clark, 38 S.W.3d 578, 580 (Tex.2000) (noting that official immunity is
affirmative defense that protects government employees from personal
liability, and that, to be entitled to summary judgment on immunity defense,
employee must conclusively prove each element of defense); see also Myers
U. Doe, 52 S.W.3d 391, 395-96 (Tex.App.-Fort Worth 2001, pet. denied)
(addressing school district employees' entitlement *628 to immunity if all
-25-
elements under section 22.051(a) of the Education Code are established); see
also Tex. Educ. Code Ann. § 22.051 (a) (Vernon 1996) (stating that
professional school district employees are not personally liable for actions
incident to or within the scope of duties performed that involve the exercise
ofjudgment or discretion, unless there is an excessive use of force or
negligent discipline resulting in bodily injury to students).
"Clements is also not cloaked with immunity from personal liability
where her actions are not incident to or within the scope of her professional
duties or while she is performing duties that are ministerial and, therefore,
do not involve the exercise ofjudgment or discretion. See Tex. Educ. Code
Ann. § 22.051; Myers, 52 S.W.3d at 396; cf. Kassen v. Hatley, 887 S.W.2d
4, 11 (Tex. 1994) (holding that government-employed medical personnel are
not immune from tort liability if the character of the discretion they exercise
is medical and not governmental). Hinterlong's pleadings allege that
Clement's acts and omissions involved ministerial duties and that, at certain
times, Clements acted outside the scope of her employment or official
duties. Hinterlong has, therefore, pleaded cognizable common law claims
against Clements, subject to her affirmative defense of immunity.
"Accordingly, we conclude that Hinterlong has asserted well-
established common law causes of action against Clements, the tipster, and
the person or persons who planted the Ozarka water bottle. Regardless of
whether the trial court later holds that Arlington ISD is sovereignly immune
from suit, Hinterlong's assertion of these common law causes of action
against Clements, the tipster, and the person or persons who planted the
Ozarka water bottle satisfy the open courts predicate of assertion of well-
established common law causes of action."
The trial court has erred in not recognizing that Appellant offered
"cognizable common law claims" against Appellees, which defeated any hope of
protection Appellees had under sovereign immunity. Appellant used Appellees'
own documents to demonstrate that the offending actions were outside
governmental duties and functions.
Furthermore, Appellant offered evidence to the trial judge to show Appellee
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Humphrey also acted outside her duties and function. These acts constituted a
well-established waiver-by-conduct.
Once the issue of sovereign immunity was defeated with the evidence,
Appellee made no affirmative defense to underscore any claim of official
immunity. The facts of the case show conduct that is outside the duties and
functions of the employees, including the contract of employee Appellee school
teacher Vaughan.
Because Appellees did not plead an affirmative defense for the official
immunity, Hinterlong shows that it is waived.
The complaining party, Appellant Douglas Kirk, established the State's
consent to be sued through a waiver-by-conduct, and then Appellee failed to
defend against Appellant's evidence showing the conduct could not enjoy official
immunity protection because it was outside established duties and functions.
In Gonzalez v. Ison-Newsome, 68 S.W.3d 2 (Tex. App. --Dallas 1999) five
school district employees allegedly ganged up on one of their own and slandered
her to the press, including slander per se. The trial court rejected a summary
judgment and the appeals Court affirmed the lower court's decision. It seems the
crew on Gonzalez's side appealed to the higher court to reverse the decision based
upon an affirmative defense of immunity as a matter of law. The Appeals Court,
-27-
found however, that Gonzalez did not do that, stating, "...appellants must prove
conclusively all elements of that affirmative defense." The Court cited Swilley V.
Hughes, 488 S.W. 488 S.W.2d 67, 67 (Tex. 1972).
The Court's words in Gonzalez are important:
"The education code provides little guidance for determining what
acts are incident to or within the scope of a professional school employee's
duties. Likewise, few cases have analyzed this particular element of the
education code immunity. The scope of employment analysis commonly
used in cases involving agency law, however, is instructive. In this case,
Ison-Newsome's claims relate to alleged intentional torts. Under well
established agency law, the question of whether an intentional tort was
within an employee's scope of employment can be determined by applying a
respondeat superior analysis. See Houston Transit Co. v. Felder, 146 Tex.
428, 208 S.W.2d 880, 881 (1948). Under this analysis, an employee acts
within his scope of employment if he acts within his general authority, in
furtherance of the employer's business, and to accomplish an objective for
which the employee was employed. Mackey v. U.P Enterprises, Inc., 935
S.W.2d 446, 453 (Tex.App.-Tyler 1996, no writ). 6 We apply this analysis to
the summary judgment record presented here."
It should be noted that the Appellees in this present case cannot and have not
demonstrated that the libelous e-mail authored by Vaughan and spread by Parks
and Washington, and which was shut down in the grievance process by Humphrey,
was in "furtherance of the employer's business, and to accomplish an objective for
which the employee was employed." On the contrary, the PISD itself said, through
employee Tamira Griffin, "The District will not take action against an employee or
conduct an investigation related to matters outside the scope of his or her
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employment..." referring to the matter raised by Vaughan and labeled by her as
a "personal issue"—which was her mission to demonize Appellant Douglas Kirk
and brand him as a stalker. That's hardly "in furtherance of the employer's
business..." (See CR: Plaintiff's Response To Defendants' Second Motion To
Dismiss, Plaintiffs Exhibit 4, August 2, 2013, Tamira Griffin Response to Level I
Grievance page 2 at [6] and [7]).
5. The trial court erred in failing to recognize Appellant's claim of waiver
of immunity granted by conduct (waiver-by-conduct), despite evidence produced
by Appellant.
Calling a parent a "whore" and a "selfish pussy," and praying for Christmas
that the parent "overdose and burn in hell," and calling the man [the Appellant]
attempting to help that parent get away from a now legally admitted abusive
husband, an "old ugly stalker," was probably not an assigned duty of a Sixth Grade
Language Arts teacher and certainly did not "build a good public image of the
District" as her contract specifies. (See: CR: Plaintiff's Response to Defendants'
Second Motion To Dismiss, Plaintiffs Exhibit 2 Anika Vaughan Contract at [4.1].)
As Appellee Vaughan stated, it was a "personal issue" she wanted to bring to
the attention of her employer on January 28, 2013, and spread around the District.
She acted individually to create her e-mail relative to the Plaintiff and she used
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publically owned resources spreading her views, which included false statements
of fact. (See CR: Plaintiffs Response To Defendants' Second Motion To Dismiss,
page 3-5 at [9] and see Plaintiff's Exhibit 1, January 28, 2013, Anika Vaughan
Email Personal Issue.)
How do we know Anika Vaughan was acting individually and outside the
scope of her duties?
First, she herself, says she is, by labeling the first e-mail "personal issue."
Second, when the Appellant became aware of the e-mail which contained so
many false statements of fact, (several months after January 28, 2013, as a result of
an Open Records Request which was answered by attorney Brandy Davis on July
1, 2013), he employed the Piano Independent School District's own published and
board approved grievance procedure by filing a Level One Grievance on the matter
on July 8, 2013. Associated with the Appellant's Grievance were 21 exhibits which
he submitted for review to demonstrate that statements made by Anika Vaughan on
January 28, 2013, were, in fact, false. (See CR: Plaintiffs Response To
Defendants' Second Motion To Dismiss, attached Plaintiff's Exhibit 1, January 28,
2013, Anika Vaughan Email Personal Issue and Plaintiffs Exhibit 3, January 28,
2013 Anika \ Vaughan Email to PISD.)
PISD Chief Human Resources Officer Tamira Griffin [not a Defendant]
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reviewed the Level One Grievance filed by the Appellant and issued a denial letter
on August 2, 2013. The letter is the second means by which we know that Anika
Vaughan was acting outside her duties when she wrote and published the false
statements of fact. The letter has two very important admissions on behalf of PISD.
First, Griffin wrote, "The District has no interest in the private matters
discussed in Ms. Vaughan's email and in your written statement and exhibits."
Second, Griffin wrote, "The District will not take action against an employee
or conduct an investigation related to matters outside the scope of his or her
employment unless the matters impact the employee's ability to effectively perform
his or her job duties in accordance with District polices and standards."
(See CR: Plaintiff's Response To Defendants' Second Motion To Dismiss, page 6
at [12] and see See Plaintiff's Exhibit 1, January 28, 2013, Anika Vaughan Email
Personal Issue. Also see Plaintiffs Exhibit 4, August 2, 2013, Tamira Griffin
Response to Level I Grievance page 2 at [6] and [7].)
The statements in the Tamira Griffin letter clearly indicate that the
governmental entity itself sees the actions of Anika Vaughan to be outside her
function as a teacher and PISD effectively indicates they are washing their hands
of the matter. But PISD is not free of the matter simply by declaring its lack of
interest. Since the e-mail from Anika Vaughan was received by a variety of PISD
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employees, including Appellees Joseph Parks and Courtney Washington and these
individuals then acted upon the information supplied by Vaughan, and without
questioning its truthfulness, they then acted outside their governmental function as
well. The governmental function of the Director of Security, Joseph Parks, (a
former 19 year veteran police officer who was previously employed by the Piano
Police Department), would have been to investigate the claims made by Anika
Vaughan, before acting against the Appellant. The same holds true of Courtney
Washington, the principal who stated about the Appellant, "I am concerned that he
may try to come to CMS, if what she is saying is accurate. We contact Piano PD
and Safety and Security, as needed." (See CR: Plaintiff's Response To
Defendants' Second Motion To Dismiss, attached Plaintiff's Exhibit 3, January 28,
2013 Anika \ Vaughan Email to PISD at Washington's comment.)
The Appellant is a Citizen of the United States ofAmerica and of the State
of Texas. As such, he enjoys certain rights and privileges. He has no felony
convictions, has never been arrested, has no criminal record and is a citizen in
good standing. However, Courtney Washington makes it clear that her intention, if
the Appellant comes to her school, is to contact the Director of Security and to
contact the Piano Police. Why would she do that? Does she do that when any
citizen visits her school? Is that a governmental function, to call the police on any
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citizen who arrives on public property which is entrusted to the Board of Trustees
by the citizen-owner taxpayers?
Appellee Nancy Humphrey also acted outside her government duties and
function and Appellant clearly described to the trial judge her actions and offered
proof of her activity relative to dismissing a related Level II Grievance on the
matter. (See CR: Plaintiff's Response To Defendants' Second Motion To Dismiss,
page 8 - 11 at [17] and Plaintiff's Exhibits 5, 6 and 7 referenced in the argument.)
In JerrellD. INMAN, Sr., Appellant, v. CITY OF KATY and Billy Johnson,
in his Capacityas Assistant ChiefofPolice, Appellees, 900 S.W.2d 871 (1995),
there is a poignant paragraph: "Our decision here is consistent with our previous
determination that a municipality is immune from an action for libel when the
statements are alleged to have occurred 873*873 during the performance of a
governmental function. City ofDallas v. Moreau, 718 S.W.2d 776, 779 (Tex.A
Corpus Christi Christi 1986, writ refd n.r.e.) In Moreau, a city marshall was fired
following an accusation that he shot his weapon without legal justification. Id. at
778. The letter of termination was circulated and a copy posted on the employee
bulletin board. This court held that the action taken by the marshall's office was in
the performance of a police function, and that the operation of a police
department is a function for which the city is immune from suit. Id. at 779. The
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libel alleged in Moreau is similar to the slander in this case."
Appellant notes that the VAUGHAN e-mail was not in furtherance of her
duties as a 6th Grade teacher, not even close. But, she did use school district
resources to publish her false statements of fact, as did others. This is the exact
opposite of what happened in both the Inman and Moreau cases.
6. The trial court erred in failing to consider factual evidence presented by
Appellant, on a case-by-case basis, to establish waiver-by-conduct.
Waiver-by-conduct of sovereign immunity is a viable legal principle, and, the
courts are expected to make waiver decisions on a case-by-case basis, viewing
carefully the facts of each case.
In Catalina Development, Inc. v. County ofEl Paso, 121 s.w.3d 704, 704
(Tex.203) where a contractor sued a government entity for shenanigans related to a
contract bid, the Court clearly demonstrated that the Court will evaluate the
waiver-by-conduct exception to sovereign immunity based upon the independent
facts of each case, not as a categorical matter, or bright-line rule.
While the Court ruled that the County of El Paso was, in fact, protected by
immunity, the case-by-case analysis premise was reinforced. In Catalina, the Court
calls attention to another case in which waiver-by-conduct is addressed. The Court
speaks:
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"It is undisputed that El Paso County did not expressly waive its immunity
from suit here. In Federal Sign, we noted that there might be circumstances
4where the State may waive its immunity by conduct other than simply
executing a contract,' although under the facts of that case, it was not
necessary to indicate what those circumstances might be. Federal Sign v.
Texas S. Univ., 951 S.W.2d 401,408 n. 1 (Tex.1997). Since Federal Sign, we
have had several occasions to consider circumstances that were urged to
constitute a waiver by conduct. See Peizel, 77 S.W.3d at 251-52 (county
withheld money due under a construction contract pursuant to contract's
liquidated-damages clause); Texas Natural Res. Conservation Comm'n v.
IT-Davy, 74 S.W.3d 849, 856-57 (Tex.2002) (contractor sought to recover
cost overruns allowed by contract's equitable-adjustments clause); Gen.
Servs. Comm'n v. Little-TexInsulation Co., Inc., 39S.W.3d591,595
(Tex.2001) (contract disputes regarding cost overruns for completed work,
and to recover for work partially performed under a contract that was
subsequently terminated). We held that the facts these cases presented did
not support an equitable waiver-by-conduct of the governmental entities'
immunity."
As such, Appellant urged the trial Court to do the same in this present case,
but, it does not appear as though the trial judge took the facts of the case into
consideration before dismissing the case. (See RR: Hearing before the Court,
March 5, 2015, Motion To Dismiss page 9 at line 11 through page 19 through line
14).
With all due respect to the trial judge, Appellant concludes that errors were
made. Appellant was asked for help by a woman being subjected to domestic
violence and when he assisted her, the husband complained to his sister, who took
it upon herself to make false statements of fact about the Appellant to her
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employer, which she labeled "personal." Without investigating the claims,
individuals then reacted to the libelous material and spread the lies using taxpayer
funded resources within the school district.
When the Appellant found out, he used the agency policy to attempt to set
the record straight, only to be subjected to an effort to dispose of the matter
without resolution. Appellees indicated the matter was outside the scope of their
duties and function, thereby waiving by conduct any immunity defense (sovereign
or official), and upon being sued, entered a general denial.
The trial court did not consider the facts of the case to establish waiver-by-
conduct, and did not allow the "remedies additional" provision of the Texas Tort
Claims Act before dismissing the case entirely. Appellant made the case before
the trial judge that he filed suit under the Libel law, not under the TTCA, and that
the government entity gave him permission to sue through conduct.
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PRAYER
Appellant, Douglas Kirk, respectfully, for the reasons stated above, asks the
Court to reverse the judgment of the trial court and remand the case for trial.
-37-
APPENDIX
Tab 1: Final Judgment Order by the Trial Court
Tab 2: Trial Court's Findings of Fact and Conclusions of Law
Tab 3: Text of Relevant Laws
Texas CIVIL PRACTICE AND REMEDIES CODE, TITLE 4.
LIABILITY IN TORT, CHAPTER 73. LIBEL
Texas CIVIL PRACTICE AND REMEDIES CODE, TITLE 5.
GOVERNMENTAL LIABILITY, CHAPTER 101. TORT CLAIMS
EDUCATION CODE, TITLE 2. PUBLIC EDUCATION, SUBTITLE
D. EDUCATORS AND SCHOOL DISTRICT EMPLOYEES AND
VOLUNTEERS, CH.22
Tab 4: Piano Independent School District Grievance Policy
PUBLIC COMPLAINTS GF (LEGAL)
PUBLIC COMPLAINTS GF (LEGAL)
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Respectfully Submitted,
Bv -Sy£~^
Douglas fork, pro se
Appellant
1850 Old Sattler Road
Canyon Lake, Texas 78132
Telephone: (830)237-7313
CERTIFICATE OF SERVICE
Icertify that atrue and correct copy ofthe foregoing pleading or document has been
served on all attorneys ofrecord and any parties who are not represented by an
attorney on */fy/6c&T, 2015.
Counsel:
Stephen R. Marsh
Texas State Bar No. 13019700
David Klosterboer & Associates
1301 East Collins Boulevard
Suite 490
Richardson, TX 75081
Telephone: (214) 570-6292
Via U.S. Mail, Certified Return Receipt Requested, No.f5f<7 9WlO(rtf)Sfti &**f
1515 U.S. 819,
828 (1995): Citv of Madison v. Wis. Emp. Rel. Comm'n. 429 U.S.
167, 174 (1976): Pickering v. Bd. of Educ. 391 U.S. 563, 568
(1968)
TEXAS CONSTITUTION Citizens shall have the right, in a peaceable manner, to assemble
together for their common good and to apply to those invested with
the powers of government for redress of grievances or other pur
poses, by petition, address, or remonstrance. Tex. Const. Art. I,
Sec. 27
RESPONSE TO There is no requirement that the Board negotiate or even respond
COMPLAINTS to complaints. However, the Board must stop, look, and listen and
must consider the petition, address, or remonstrance. Professional
Association of College Educators v. El Paso County Community
(College! District. 678 S.W.2d 94 (Tex. App.—El Paso 1984, writ
ref'dn.r.e.)
FEDERAL LAWS A district that receives federal financial assistance, directly or indi
SECTION 504
rectly, and that employs fifteen or more persons shall adopt griev
ance procedures that incorporate appropriate due process stand
ards and that provide for the prompt and equitable resolution of
complaints alleging any action prohibited by Section 504 of the
Rehabilitation Act of 1973. 29 U.S.C. 794; 34 CFR 104.7(b)
AMERICANS WITH A district that employs 50 or more persons shall adopt and publish
DISABILITIES ACT grievance procedures providing for prompt and equitable resolution
of complaints alleging any action that would be prohibited by the
Code of Federal Regulations, Title 28, Part 35 (Americans with
Disabilities Act regulations). 28 CFR 35.107
CLOSED MEETING The Board may conduct a closed meeting on a public complaint to
the extent required or provided by law. [See BEC]
RECORD OF An appeal of the Board's decision to the Commissioner of Educa
PROCEEDINGS tion shall be decided based on a review of the record developed at
the District level. "Record" includes, at a minimum, an audible
electronic recording or written transcript of all oral testimony or ar
gument. Education Code 7.057(c), (f)
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GF
PUBLIC COMPLAINTS
(LEGAL)
It isthe District's responsibility to make and preserve the records of
the proceedings before the Board. If the District fails to create and
preserve the record without good cause, all substantial evidence
issues that require missing portions ofthe record for resolution
shall be deemed against the District. The record shall include:
1. Atape recording ora transcript ofthe hearing at the local lev
el. Ifa tape recording is used:
a. The tape recording must be complete, audible, and
clear; and
b. Each speaker must be clearly identified.
2. All evidence admitted;
3. All offers of proof;
4. All written pleadings, motions, and intermediate rulings;
5. Adescription of matters officially noticed;
6. If applicable, the decision ofthe hearing examiner;
7. Atape recording or transcript of the oral argument before the
Board; and
8. The decision of the Board.
19 TAC 157.1073(d)
DISRUPTION It is a criminal offense for a person, with intent to prevent or disrupt
a lawful meeting, to substantially obstruct or interfere with the ordi
nary conduct of a meeting by physical action or verbal utterance
and thereby curtail the exercise of others' First Amendment rights.
Penal Code 42.05; Morehead v. State. 807S.W. 2d577 (Tex. Cr.
App. 1991)
Note: Public complaints regarding instructional and library ma
terials are addressed at EFAand complaints against
peace officers are addressed at CKE.
2 of 2
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PUBLIC COMPLAINTS GF
(LOCAL)
PROCEDURES Board members understand that it is reasonable and expected that
individuals from time to time will have complaints concerning
school matters. In these instances complainants shall use the pro
cedures provided in this policy.
COMPLAINTS In this policy, the terms "complaint" and "grievance" shall have the
same meaning.
OTHER COMPLAINT Complaints by members of the public shall be filed in accordance
PROCESSES with this policy, except as required by the policies listed below.
Some of these policies require appeals to be submitted in accord
ance with GF after the relevant complaint process:
1. Complaints concerning instructional materials shall be filed in
accordance with EFA.
2. Complaints concerning a commissioned peace officer who is
an employee of the District shall be filed in accordance with
CKE.
3. Complaints concerning decisions on residency shall be filed in
accordance with FD.
GUIDING PRINCIPLES The Board encourages the publicto discuss concerns with an ap
INFORMAL
propriate administrator who has the authority to address the con
PROCESS
cerns. Concerns should be expressed as soon as possible to al
low early resolution at the lowest possible administrative level.
Informal resolution shall be encouraged but shall not extend any
deadlines in this policy, except by mutual written consent.
FORMAL PROCESS An individual may initiate the formal process described below by
timely filing a written complaint.
Even after initiating the formal complaint process, individuals are
encouraged to seek informal resolution of their concerns. An indi
vidual whose concerns are resolved may withdraw a formal com
plaint at any time.
The process described in this policy shall not be construed to cre
ate new or additional rights beyond those granted by law or Board
policy, nor to require a full evidentiary hearing or "mini-trial" at any
level.
FREEDOM FROM Neither the Board nor any District employee shall unlawfully retali
RETALIATION ate against any individual for bringing a concern or complaint.
GENERAL Written complaints and appeal notices may be filed by hand-
PROVISIONS delivery, by electronic communication, including e-mail and fax, or
FILING by U.S. Mail. Hand-delivered filings shall be timely filed if received
by the appropriate administrator or designee by the close of busi-
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PUBLIC COMPLAINTS GF
(LOCAL)
ness on the deadline. Filings submitted by electronic communica
tion shall be timely filed ifthey are received by the close of busi
ness on the deadline, as indicated by the date/time shown on the
electronic communication marked by the District's technology re
sources/electronic communications system. [See CQ] Mail filings
shall be timely filed ifthey are postmarked by U.S. Mail on or be
fore the deadline and received by the appropriate administrator or
designated representative no more than three days after the dead
line.
SCHEDULING The District shall make reasonable attempts to schedule confer
CONFERENCES ences at a mutually agreeable time. Ifthe individual fails to appear
at a scheduled conference, the District may hold the conference
and issue a decision in the individual's absence.
RESPONSE At Levels One and Two, "response" shall mean a written communi
cation to the individual from the appropriate administrator. Re
sponses may be hand-delivered, sent byelectronic communication
to the individual's e-mail address of record, or sent by U.S. Mail to
the individual's mailing address of record. Mailed responses shall
be timely ifthey are postmarked by U.S. Mail on or before the
deadline. Filings submitted by electronic communication shall be
timely filed ifthey are received bythe close of business onthe
deadline, as indicated by the date/time shown on the electronic
communication marked by the District's technology resources/
electronic communications system. [See CQ]
DAYS "Days" shall mean District business days. In calculating time lines
under this policy, the day a document is filed is "day zero." The
following business day is "day one."
REPRESENTATIVE "Representative" shall mean any person who or organization that is
designated by an individual to represent the individual in the com
plaint process.
The individual may designate a representative through written no
ticeto the District at any level of this process. If the individual des
ignates a representative with fewer than three days' notice to the
District before a scheduled conference or hearing, the District may
reschedule the conference or hearing to a later date, if desired, in
order to include the District's counsel. The District may be repre
sented by counsel at any level of the process.
CONSOLIDATING Complaints arising outof an event or a series of related events
COMPLAINTS shall be addressed in one complaint. An individual shall not file
separate or serial complaints arising from any event or series of
events that have been or could have been addressed in a previous
complaint.
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UNTIMELY FILINGS All time limits shall be strictly followed unless modified by mutual
written consent.
If a written complaint or appeal notice is not timely filed, the com
plaint may be dismissed, on written notice to the individual, at any
point during the complaint process. The individual may appeal the
dismissal by seeking review in writing within ten days from the date
of the written dismissal notice, starting at the level at which the
complaint was dismissed. Such appeal shall be limited to the issue
of timeliness.
COSTS INCURRED Each party shall pay its own costs incurred in the course of the
complaint.
WRITTEN Complaints and appeals under this policy shall be submitted in writ
COMPLAINT AND ing.
APPEAL
Copies of any documents that support the complaint should be at
tached to the written complaint. If the individual does not have
copies of these documents, they may be presented at the Level
One conference. After the Level One conference, no new docu
ments may be submitted by the individual unless the individual did
not know the documents existed before the Level One conference.
A written complaint or appeal that is incomplete in any material as
pect may be dismissed but may be refiled with all the required in
formation if the refiling is within the designated time for filing.
LEVEL ONE Complaints must be filed:
1. Within 15 days of the date the individual first knew, or with
reasonable diligence should have known, of the decision or
action giving rise to the complaint or grievance; and
2. With the lowest level administrator who has the authority to
remedy the alleged problem.
Ifthe only administrator who has authority to remedy the al
leged problem is the Superintendent or designee, the com
plaint may begin at Level Two following the procedure, includ
ing deadlines, for filing the written complaint at Level One.
Ifthe complaint is not filed with the appropriate administrator, the
receiving administrator must note the date and time the written
complaint was received and immediately forward the written com
plaint to the appropriate administrator.
The appropriate administrator shall investigate as necessary and
schedule a conference with the individual within ten days after re
ceipt of the written complaint. The administrator may set reasona
ble time limits for the conference.
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Absent extenuating circumstances, the administrator shall provide
the individual a written response within ten days following the con
ference. In reaching a decision, the administrator may consider
information provided at the Level One conference and any other
relevant documents or information the administrator believes will
help resolve the complaint.
LEVEL TWO If the individual did not receive the relief requested at Level One or
if the time for a response has expired, he or she may request a
conference with the Superintendent or designee to appeal the Lev
el One decision.
The appeal notice must be filed in writing within ten days of the
date of the written Level One response or, if no response was re
ceived, within ten days of the Level One response deadline.
After receiving notice of the appeal, the Level One administrator
shall prepare and forward a record of the Level One complaint to
the Level Two administrator. The individual may request a copy of
the Level One record.
The Level One record shall include:
1. The written complaint and any attachments.
2. All other documents submitted by the individual at Level One.
3. The written response issued at Level One and any attach
ments.
4. All other documents relied upon by the Level One administra
tor in reaching the Level One decision.
The Superintendent ordesignee shall schedule a conference with
in ten days after the appeal notice is filed. The conference shall be
limited to the issues and documents considered at Level One. At
the conference, the individual may provide information concerning
any documents orinformation relied upon by the administration for
the Level One decision. The Superintendent or designee may set
reasonable time limits for the conference.
The Superintendent or designee shall provide the individual a writ
ten response within ten days following the conference. In reaching
a decision, the Superintendent or designee may consider the Level
One record, information provided at the Level Two conference, and
any other relevant documents or information the Superintendent or
designee believes will help resolve the complaint.
Recordings of the Level One and Level Two conferences, if any,
shall be maintained with the Level One and Level Two records.
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LEVELTHREE If the individual did not receive the relief requested at Level Two or
if the time for a response has expired, he or she may appeal the
decision to the Board.
The appeal notice must be filed in writing within ten days of the
date of the written Level Two response or, if no response was re
ceived, within ten days of the Level Two response deadline.
The Superintendent or designee shall inform the individual of the
date, time, and place of the Board meeting at which the complaint
will be on the agenda for presentation to the Board.
The Superintendent or designee shall provide the Board the record
of the Level Two appeal. The individual may request a copy of the
Level Two record.
The Level Two record shall include:
1. The Level One record.
2. The notice of appeal from Level One to Level Two.
3. The written response issued at Level Two and any attach
ments.
4. All other documents relied upon by the administration in
reaching the Level Two decision.
The appeal shall be limited to the issues and documents consid
ered at Level Two, except that if at the Level Three hearing the
administration intends to rely on evidence not included in the Level
Two record, the administration shall provide the individual notice of
the nature of the evidence at least three days before the hearing.
The District shall determine whether the complaint will be present
ed in open or closed meeting in accordance with the Texas Open
Meetings Act and other applicable law. [See BE]
The presiding officermay set reasonable time limits and guidelines
for the presentation, including an opportunity for the individual and
administration to each make a presentation and provide rebuttal
and an opportunity for questioning by the Board. The Board shall
hear the complaint and may request that the administration provide
an explanation for the decisions at the preceding levels.
In addition to any other record of the Board meeting required by
law, the Board shall prepare a separate record of the Level Three
presentation. The Level Three presentation, including the presen
tation by the individual or his or her representative, any presenta
tion from the administration, and questions from the Board with re-
DATE ISSUED: 4/28/2015 5 of 6
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Piano ISD
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PUBLIC COMPLAINTS GF
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sponses, shall be recorded by audio recording, video/audio record
ing, or court reporter.
The Board shall then consider the complaint. It may give notice of
its decision orally or in writing at any time up to and including the
next regularly scheduled Board meeting. If the Board does not
make a decision regarding the complaint by the end of the next
regularly scheduled meeting, the lack of a response by the Board
upholds the administrative decision at Level Two.
DATE ISSUED: 4/28/2015 ADOPTED: 6 of 6
LDU 2015.03
GF(LOCAL)-X