Los Fresnos Consolidated Independent School District and Michael L. Williams, Commissioner of Education v. Jorge Vazquez

ACCEPTED
03-14-00629-CV
4570791
THIRD COURT OF APPEALS
AUSTIN, TEXAS
3/19/2015 4:31:50 PM
JEFFREY D. KYLE
CLERK
NO. 03-14-00629-CV

FILED IN
3rd COURT OF APPEALS
In The Court Of Appeals AUSTIN, TEXAS
For The Third Judicial District of Texas 3/19/2015 4:31:50 PM
Austin, Texas JEFFREY D. KYLE
Clerk

LOS FRESNOS
CONSOLIDATED INDEPENDENT SCHOOL DISTRICT
and MICHAEL L. WILLIAMS, Commissioner of Education,
State of Texas,
Appellants
v.
JORGE VAZQUEZ,
Appellee

On Appeal from the 419th Judicial District Court of Travis County, Texas;
Cause No. D-1-GN-13-003654; before the Honorable Scott H. Jenkins

APPELLEE'S
BRIEF

BRIM ARNETT & ROBINETT, P.C.
Mark Robinett
State Bar No. 17083600
2525 Wallingwood Drive, Bldg. 14
Austin, Texas 78746
Telephone: (512) 328-0048
Facsimile: (512) 328-4814
Email: mrobinett@brimarnett.com

Counsel for Jorge Vazquez

Oral Argument Conditionally Requested
 TABLE OF CONTENTS
Page
Table of Contents i
Index of Authorities ii
Statement Regarding Oral Argument 1
Summary of the Argument 1
Standard of Review 4
Substantial Evidence 7
Arbitrary and Capricious 9
Argument 10
A. The District Offered no Credible Evidence against Mr. Vazquez 10

B. The Texas Rules of Evidence do have some bearing on the case.... 21

Conclusion.. 35
Prayer 37
Certificate of Compliance 39
Certificate of Service 39
Appendix 40

i
 INDEX OF AUTHORITIES

Cases
Page
Board of Firemen's Relief & Retirement Fund Trustees of Houston
v. Marks,
150 Tex. 433, 242 S.W.2d 181, 183 (1951) 7

City of El Paso v. Public Utility Commission
883 S.W.2d 179, (Tex. 1994) 10

Cusson v. Firemen's and Policemen's Civil Service Commission
524 W.W.2d88, 90 (Tex.Civ.App.—San Antonio 1975, no writ) 8

Dodd v. Meno, 870 S.W.2d 4, 7 (Tex. 1994) 5, 7

Firemen's and Policemen's Civil Service Commission v. Brinkmeyer
662 S.W.2d 953, 956 (Tex.1984) 8

Gerst v. Goldsbuly
434 S.W.2d 665, 667 (Tex. 1968) 8

Gerst v. Nixon
411 S.W.2d 350, 360 n. 8 (Tex.1966) 10

Hix v. Tuloso-Midway ISD
489 S.W.2d 706, 711 (Tex.App.-Corpus Christi 1972-writ rerd, (n.r.e.).... 35

Johnson v. City of Fort Worth, 774 S.W.2d 653, 656 (Tex. 1989)................... 5

Lopez v. Tex. Workers' Comp. Ins. Fund, 11 S.W.3d 490, 494 (Tex. App.--Austin
2000, pet. denied) 5

Railroad Commission v. Shell Oil Co., Inc.
161 S.W.2d 1022, 1029-30 (Tex. 1942) 9

Republic W. Ins. Co. v. State, 985 S.W.2d 698, 701 (Tex. App.--Austin 1999,

ii
Tarrant Appraisal District v. Moore
845 S.W.2d 820, 823 (Tex. 1993) 5, 6

Trapp v. Shell Oil Company
145 Tex. 323, 198 S.W.2d 424, 436 (1946) 8
198 524 S.W.2d at 440 8

Vitek v. Jones
445 U.S. 480, 490-91, 100 S. Ct 1254, 1262-63, 63 L. Ed. 2d 552 (1980)... 34

Wolff v. McDonnell
418 U.S., at 558, 94 S. Ct., at 2976 34

Statutes

Tex. Education Code
§21.206(a) Term Contract Renewal Act 3, 24
Chapter 21, Subchapter E Term Contract Renewal Act 3, 35
Chapter 21, Subchapter F 28
§21.201(c)(3) 10
§21.203 206-.207 34
§21.207 (a) 3, 24
§21.207, Subsection (b) 32
Acts 1981, 67th Leg., p. 2847, ch. 765, §2, eff. Aug. 31, 1981) 6

Government Code

§2001.001 .31
§2001.003 .31
§2001.081 23, 25, 29, 31
§2001.081 (a) 26

Commissioner's Decisions

Anderson v. Jacksonville ISD
Docket No. 142-R1-397, p. 2 (Comm'r Educ. 1997) ...6, 15, 23

iii
Carnot v. North East Independent School District
No. 066-R1-605, pp. 2-3 (Comm'r Educ. 2005) ..23

Dunlap v. Breckenridge ISD
Docket No. 334-R1-692, pp. 8 (Comm'r Educ. 1995) 6, 23
pp. 8-9 6

Gipson v. Ore City ISD
Docket No. 178-R1-690 (Comm'r Educ. 1992) 6, 15
p• 3 .23

Seifert v. Lingleville ISD
No. 174-R1a-782, p. 3 (Comm. Educ., Jan. 1983) 4
p•4 11, 15
Seifert *00 Ems goo 444 *O. 0...wo .ea &Ma S 4 0 ■ g ose COO OS. 29
'WO

Weatherwax v. Fort Worth Independent School District

iv
 STATEMENT REGARDING ORAL ARGUMENT

Jorge Vazquez, Appellee, does not believe that the issues in this case are

complex enough to justify Oral Argument. What constitutes evidence or substantial

evidence is well-established, in large measure by cases from this very court. There

is no compelling reason to change those concepts, nor is one offered by the

Appellants in this case. The primary basis offered by the Appellants for departing

from a standard that has been consistently applied for more than thirty years is a

statute that, by its own terms, is not applicable to this case.

The briefs fully and fairly articulate the parties' positions, and Appellee does

not see any issue that requires oral argument to understand.

However, if this Court grants Oral Argument, Appellee requests the

opportunity to participate.

SUMMARY OF THE ARGUMENT

By now, everyone engaged in the practice of law is familiar with the evils

associated with what is commonly referred to as "judicial activism." Indeed, even a

sizeable number of laypeople are aware that it is not the task of the judicial branch

to create new law. With Texas being a State that elects its judges, virtually every

judicial candidate with advertising funds makes it clear that he or she will not
commit that offense; that he or she will "interpret" the law, not "make" law; that

they will not "legislate from the bench."

And yet, there is something even worse than judicial activism, as this case

demonstrates. Let's call it "administrative activism": what happens when the

executive branch decides to make new law, as opposed to simply administering the

laws enacted by the legislature.

Why is this worse than judicial activism?

First, administrative officials, have not been elected and have not put their

governing philosophy, values, and standards before the electorate. They have never

even promised to show restraint if clothed with the power to determine the rights

of those who are affected by their actions.

In addition, as a general rule, they do not have legal training that would help

them understand the importance of limiting their power to administering statutes as

written, as opposed to what they would like a statute to say.

In the present case, the Commissioner of Education went even further than

your ordinary administrative activist by not merely "making" new law, but by

changing existing law that he (in the form of his predecessors) had clearly and

consistently articulated for more than thirty years. In addition, he ran roughshod

over the substantial evidence standard that has been clearly spelled out in countless

decisions by Texas appellate courts.

2
 More specifically, the Commissioner held, for the first time of which

Appellee is aware by any court or administrative body, that hearsay that is objected

to can constitute substantial evidence (even though it is not evidence at all).

In this case, Mr. Vazquez, a teacher in Los Fresnos ISD was proposed for

contract nonrenewal at the end of the 2012-13 school year in accordance with

§21.206(a) of the Term Contract Nonrenewal Act (TCNA). Tex. Education Code

Chapter 21, Subchapter E.

He requested a hearing pursuant to §21.207(a) of the Act.

A hearing was held before the Board of Trustees on June 13, 2013. At the

hearing, the evidence in support of nonrenewing Mr. Vazquez's contract consisted

almost exclusively of an administrator "testifying" to the Board about what

students had told her: which is commonly—actually universally--referred to as

"hearsay."

No student was called by the administration to tell the Board what he or she

had personally observed.

The Commissioner, on page 16 of his Decision, states that "[t]he issue of

what hearsay exceptions apply is dispositive in the present case." He specifically

notes "[t]hat the only people who observed what was going on in class were [Mr.

Vazquez] and his students," and Mr. Vazquez denied the allegations against him.

3
 The Commissioner adds that:

If [Mr. Vazquez] is to be believed his actions would not warrant the
nonrenewal of his contract. If the students are [to] be believed, [Mr.
Vazquez's actions do warrant the nonrenewal of his contract.

The Commissioner then proceeds to declare, incorrectly, that certain new

exceptions to the hearsay rule before state agencies allow blatant hearsay to serve

as "evidence" in a substantial evidence review of a nonrenewal decision by a

school district's board of trustees.

Further, although Appellant Los Fresnos ISD attempts to argue that Mr.

Vazquez's own statements constitute substantial evidence to support the

nonrenewal of his contract, this is a new argument that cannot be raised for the first

time on appeal. It is also incorrect, for reasons addressed in Mr. Vazquez's

argument.

STANDARD OF REVIEW

The District court correctly reversed the decision of the Commissioner of

Education because: (a) the Commissioner's decision was not supported by

substantial evidence, because the statute does not allow, and never has allowed,

hearsay to serve as substantial evidence; and (b) was arbitrary and capricious.

Statutory Construction

The Commissioner's Decision (p. 16) correctly states that "[t]he issue of

what hearsay exceptions apply is diapositive of the present case. . . . If the students

4
are to be believed, [Mr. Vazquez's] actions warrant the nonrenewal of his

contract." But the only statements by the students are all hearsay. The question,

therefore, is whether the nonrenewal statute authorizes hearsay to serve as

substantial evidence. As this Court has held:

Statutory construction is a question of law. See Johnson v. City of Fort
Worth, 774 S.FV.2d 653, 656 (Tex. 1989). This Court reviews a ruling on a
pure question of law de novo. See Republic W. Ins. Co. v. State, 985 S. W.2d
698, 701 (Tex. App.--Austin 1999, pet. dism'd w.oj).

Lopez v. Tex. Workers' Comp. Ins. Fund, 11 S.W.3d 490, 494 (Tex. App.--Austin

2000, pet. denied).

The Commissioner argues that, nevertheless, the Commissioner's

construction of a statute he administers is entitled to deference or great weight.

This is, indeed, a general rule of thumb. However, what the Commissioner

does not mention is the language of the Texas Supreme Court in Dodd v. Meno,

870 S.W.2d 4, 7 (Tex. 1994):

As we recently noted in Tarrant Appraisal District v. Moore, 845 S.W.2d
820, 823 (Tex. 1993): Construction of a statute by the administrative agency
charged with its enforcement is entitled to serious consideration, so long as
the construction is reasonable and does not contradict the plain language of
the statute."

Indeed, citing this very case, the Supreme Court held , in the No. 1 case cited

by the Commissioner, that:

the contemporaneous construction of a statute by the administrative agency
charged with its enforcement is entitled to great weight. Dodd v. Meno, 870

5
 S.W.2d 4, 7 (Tex. 1994); Tarrant Appraisal Dist. v. Moore, 845 S.W.2d 820,
823 (Tex. 1993).

State v. Pub. Util. Comm'n, 883 S.W.2d 190, 196 (Tex. 1994).

In the present case, the Commissioner's construction of the statute is

unreasonable and contradicts its plain language (i.e., "substantial evidence").

Further, the time for a contemporaneous construction of the statute is long past.

That was done in previous decades in cases that all stand for the proposition that

what is not evidence (e.g., hearsay) cannot support a decision in a substantial

evidence review: Dunlap v. Breckenridge ISD, Docket No. 334-R1-692, pp. 8-9

(Comm'r Educ. 1995); Gipson v. Ore City ISD, Docket No. 178-R1-690 (Comm'r

Educ. 1992). Anderson v. Jacksonville ISD, Docket No. 142-R1-397, p. 2

(Comm'r Educ. 1997).

The present case is the first instance, since the Term Contract Nonrenewal

Act was enacted in 1981 in which the Commissioner has announced that hearsay

can serve as substantial evidence. (See Acts 1981, 67th Leg., p. 2847, ch. 765, §2,

eff. Aug. 31, 1981.)

In short, this Court should give deference (or great weight) to the

Commissioner's contemporaneous and consistent construction of the statute, as

opposed to a johnny-come-lately interpretation that does nothing to further the

purpose of the statute and everything to circumvent it.

6
 And this does not even take into account the normal rationale for giving an

administrative agency's construction "serious consideration": As explained in

Dodd:

we are not inclined to reverse the Commissioner's reasonable determination
in an area where he possesses considerable authority and expertise.

870 S.W.2d 4, 7.

The Commissioner's expertise is not in statutory construction, nor in what

constitutes "evidence" and "substantial evidence." The Court should not give any

deference to an educational administrator's interpretation on these concepts. This is

the sweet spot of the Court's purview. There is nothing the Commissioner of

Education can do or say that will assist the Court in its consideration of what

constitutes hearsay, evidence, or a substantial evidence review (as opposed, for

example, to a decision concerning teacher appraisals or class size limitations).

Substantial Evidence

To the extent, if any, that substantial evidence is an issue, the principles of a

substantial evidence review are well settled:

Any difficulty applying the substantial evidence rule in
cases such as this arises from the dual role the trial court
must play. On one hand, the court must hear and consider
evidence to determine whether reasonable support for the
administrative order exists. On the other hand, the agency
itself is the primary fact-finding body, and the question to
be determined by the trial court is strictly one of law.
Board of Firemen's Relief & Retirement Fund Trustees of
Houston v. Marks, 150 Tex. 433, 242 S.W.2d 181, 183

7
 (1951). Thus, while the reviewing court is to a certain
extent a fact-finder, it may not substitute its judgment for
that of the agency on controverted issues of fact. Trapp v.
Shell Oil Company, 145 Tex. 323, 198 S.W.2d 424, 436
(1946). When there is substantial evidence which would
support either affirmative or negative findings the
administrative order must stand, notwithstanding the
agency may have struck a balance with which the court
might differ. Gerst v. Goldsbury, 434 S.W.2d 665,
667 (Tex.1968). The trial court may not set aside an
administrative order merely because testimony was
conflicting or disputed or because it did not compel the
result reached by the agency. Resolution of factual
conflicts and ambiguities is the province of the
administrative body and it is the aim of the substantial
evidence rule to protect that function. The reviewing
court is concerned only with the reasonableness of the
administrative order, not its correctness. Cusson v.
Firemen's and Policemen's Civil Service Commission,
524 S.W.2d 88, 90 (Tex.Civ.App.---San Antonio 1975,
no writ).

The reviewing courts need not consider "incredible,
perjured, or unreasonable testimony because such
evidence is not substantial." Trapp v. Shell Oil Company,
198 S.W.2d at 440. However, the reviewing court may
go no further than to examine the evidence for these
infirmities. If there is substantial evidence which
supports the order, the courts are bound to follow the
discretion of the administrative body.

Firemen's and Policemen's Civil Service Commission v. Brinkmeyer, 662 S.W. 2d
953, 956 (Tex. 1984).

Despite these general rules, the reviewing authority is not required to

consider only the evidence of one side without regard to that introduced by the

other:

$
 This [i.e., the substantial evidence rule] does not mean
that a mere scintilla of evidence will suffice, nor
does it mean that the court is bound to select the
testimony of one side, with absolute blindness to that
introduced by the other. After all, the court is to render
justice in the case. The record is to be considered as a
whole, and it is for the court to determine what
constitutes substantial evidence. The court is not to
substitute its discretion for that committed to the
agency by the Legislature, but is to sustain the agency if
it is reasonably supported by substantial evidence before
the court. If the evidence as a whole is such that
reasonable minds could not have reached the conclusion
that the agency must have reached in order to justify its
action, then the order must be set aside.

Railroad Commission v. Shell Oil Co., Inc., 161 S.W.2d 1022, 1029-30 (Tex.

1942). (Emphasis added.). Here, the District Court appropriately found that the

Commissioner's decision must be overturned because reasonable minds could not

have reached the conclusion that Appellee's contract should be nonrenewed based

on the information offered by the District to support that action, which consisted

virtually entirely of hearsay.

Arbitrary and Capricious

The arbitrary and capricious standard is a separate basis, apart from lack of

substantial evidence, for invalidating an administrative action.

An agency's decision is arbitrary or results from an abuse
of discretion if the agency: (1) failed to consider a factor
the legislature directs it to consider; (2) considers an
irrelevant factor; or (3) weighs only relevant factors that
the legislature directs it to consider but still reaches a

9
 completely unreasonable result. Gerst v. Nixon, 411
S.W.2d 350, 360 n. 8 (Tex.1966).

City of El Paso v. Public Utility Commission, 883 S.W.2d 179, (Tex. 1994). Here,

the District Court properly overturned the Commissioner's decision because it

ignored hearsay rules as well as the Texas Education Code provision which

requires that a teacher be allowed to cross examine adverse witnesses. Tex. Educ.

Code § 21.201(c)(3).

ARGUMENT

A. The District Offered no Credible Evidence against Mr. Vazquez

Mr. Vazquez was accused by the school district of a number of inappropriate

comments or acts. However, none of the allegations were supported by anything

that would qualify as "evidence."

The information masquerading as evidence was, almost without exception,

hearsay in the form of written statements from individuals who did not appear at

the hearing to state what they had personally observed or experienced. In their

absence, Mr. Vazquez had no opportunity to cross-examine them to demonstrate

any biases or other credibility problems, to demonstrate that their written

statements were exaggerated, distorted, or taken out of context, or were the result

of being led in the direction of making statements slanted against Mr. Vazquez.

10
 In other words, the hearing was designed by the district to deprive Mr.

Vazquez of a fair opportunity to refute the allegations or minimize their prejudicial

effect.

The reasons given for the proposed nonrenewal are set forth as follows:

1. During this school year, students and parents have made complaints of
inappropriate comments made by you. Students have complained that you
make them feel uncomfortable.

This reason is irrelevant. First, the fact that complaints have been made

about a teacher is not listed in the district's nonrenewal policy as a basis for

nonrenewal. Policy DFBB (LOCAL) (A.R. Vol II. at 286-288).

In addition, if there were a policy that allowed the district to use mere

complaints or allegations as a basis for nonrenewal, as opposed to facts, it would

be arbitrary and capricious and contrary to the purpose for which the TCNA was

enacted. See Seifert v. Lingleville ISD, 174-Rla-782, p. 4 (Comm'r Educ. 1983), in

which a teacher was proposed for nonrenewal based on "community feeling of

incompetence." The Commissioner, in one of the first cases decided under the

Term Contract Nonrenewal Act, wrote as follows as to the purpose of the Act:

"Community feeling of incompetence" is the only reason
for nonrenewal of which Petitioner was given written
notice. It is a reason inconsistent with the purposes of
the TCNA. Section 21.203(b) of the Act, which requires
the local board of trustees to establish reasons for
nonrenewal, has no purpose if not to provide the
individual teacher with advance notice of what he or she
must do in order to retain his or her position with the

11
school district. For example, a teacher might be
reasonably required to do such things as prepare lesson
plans; keep proper records; be punctual; be competent;
avoid activities which could impair or diminish the
teacher's effectiveness in the district; and cultivate a
working relationship with parents, the community, and
colleagues. However, a teacher cannot reasonably be
required to control the community's perception of his or
her competence as an instructor.

A holding to the effect that a school district may
nonrenew a teacher for a reason over which the teacher
has no control would render §21.203 an extremely futile
piece of legislation; the teacher's situation would be only
negligibly improved over the days in which he or she
could be nonrenewed for no reason or any reason, with
the exception, of course, of a reason prohibited by federal
law. A teacher could be nonrenewed for the reason that
"the superintendent (or principal, or one member of the
board of trustees) thinks you are incompetent." As long
as the superintendent (or principal, or one member of the
board of trustees) were to state under oath that, in his or
her opinion, the teacher in question was incompetent, that
one line of testimony, by itself, could serve as sufficient
evidence to support the board of trustees' nonrenewal
decision on appeal to the Commissioner.

The TCNA does not contemplate such a roundabout
method of nonrenewing a teacher; it was not enacted to
allow the nonrenewal of a competent (or excellent)
teacher based on second hand accounts of the tales of
children which grow more exaggerated with each
retelling. In short, the community's perception of a
teacher's competence is irrelevant. What is relevant is
whether or not the teacher actually is competent and the
evidence pertaining to that issue. "Community feeling of
incompetence," therefore, is not a permissible reason for
nonrenewal and it is unnecessary to decide whether there
was substantial evidence before the Board of Trustees in
support of that reason.

12
 By the same token, the teacher has no control over whether someone makes

a complaint against him. That is why the district is required to provide a hearing: to

determine whether the board believes the substance of the complaints after hearing

from those making them and/or others who observed the alleged incidents, taking

into account the witnesses' demeanor, credibility, and answers under cross-

examination, which might negate or minimize the weight given to their testimony.

2. A parent complained of the showing of a movie that was inappropriate.

The evidence shows that, on April 10, 2012 of the previous school year

(2011-12), Mr. Vazquez showed some of the movie Burlesque to ninth grade

students without obtaining prior approval. (A.R. Vol Il at 440.) He was advised

that "all videos/movies must be approved by administration" and told that all

movies must be previewed to confirm that the content is appropriate. Id.

Mr. Vazquez acknowledged that he had shown a few minutes of the movie,

but there were extenuating circumstances. His lesson for the day involved taking

his class to the computer lab. However, after his class had set everything up in the

lab, he was told by the assistant principal that the room was going to be used for

testing. His class returned to his classroom without being able to do the day's

assignment with approximately twenty minutes remaining in the period. (Tr. 126:

14 through 130:14.)

13
 Mr. Vazquez testified that it's "not an uncommon thing in our district or our

high school or at United [ISD] where if something goes—changes, and people

show movies."

His students stated that they had already seen this particular movie in

another class. He "took for granted it was okay" because it was rated PG-13, and

he was dealing with ninth graders.

In all, the first 10-15 minutes of the movie were shown.

This matter was brought to Mr. Vazquez's attention on April 13, 2012.

There is no allegation and no evidence to suggest that, after being told that he

should preview and obtain prior approval before showing a movie, he failed to

follow that directive in any respect.

3. During the school year, parents have requested that their child be removed
from your class.

As with Reason No. 1, the fact that parents have requested that their children

be removed from Mr. Vazquez's class is no basis for nonrenewing a teacher in the

absence of evidence as to why these requests were made and, if for negative

reasons, whether they were supported by evidence.

4. Students corroborated the incidents. These statements have been previously
provided to you in a Public Information response for information and are
incorporated herein.

14
 No student testified at the hearing to corroborate any incident. Petitioner

objected to all student statements the district offered as being hearsay. (Tr. 25:18

through 26:6; 28:13-24; 30:6-23; 109:18-25; and 159:14 through 160:10.)

As noted in the Seifert case, at p. 4, the Commissioner has specifically

discouraged blatant hearsay from serving as a basis for nonrenewing a teacher's

contract:

The TCNA does not contemplate such a roundabout
method of nonrenewing a teacher; it was not enacted to
allow the nonrenewal of a competent (or excellent)
teacher based on second hand accounts of the tales of
children which grow more exaggerated with each
retelling.

Petitioner is, therefore, entitled to have all improperly admitted evidence

disregarded by the Commissioner on appeal. See Dunlap v. Breckenridge ISD,

Docket No. 334-R1-692, pp. 8-9 (Comm'r Educ. 1995); Gipson v. Ore City ISD,

Docket No. 178-R1-690 (Comm'r Educ. 1992). Anderson v. Jacksonville ISD,

Docket No. 142-R1-397, p. 2 (Comm'r Educ. 1997).

5. You were provided directives memos to address prior inappropriate and
unprofessional interactions with students, parents and colleagues in an effort to
help you remediate your behavior. You were directed to refrain from several of the
behaviors as indicated above. You failed to follow previously provided directives
as indicated and failed to comply with other issues addressed in the memos.

This reason is flawed in numerous respects:

(a) Mr. Vazquez was provided with four memos: Exhibits 8, 9, 12, and

13. Numbers 12 and 13 concerned the same incident: showing the movie. Both

15
stated that he should not have shown the movie without prior approval and prior

screening. Both were dated April 13, 2012. Exhibit 12 was signed by the principal

on April 13, 2012, by the Human Resources Director on April 17, 2012, and by the

superintendent on April 18, 2012. Exhibit 13 does not contain any signatures, but

is purportedly from the principal and dated April 13, 2012.

The Board President signed Mr. Vazquez's contract on May 3, 2012.

There is no evidence—indeed, no allegation—that the information brought

to Mr. Vazquez's attention and the directives given him in Exhibits 12 and 13

during the previous school year while under a previous contract went unheeded.

There are no allegations of further movie-showing, and Mr. Vazquez, as mentioned

previously, testified that he meticulously followed the directives.

(b) Exhibit 9, also from the 2011-12 school year, concerned an allegation

in which Mr. Vazquez pretended to videotape a student who was constantly off

task that day in order to get her attention and focus on the lesson. He was directed

to never "lead students to believe that they are being video-taped in a classroom as

a disciplinary or class management technique."

The student in question did not testify. Mr. Vazquez testified (Tr. 117:10

through 118:21) that what he did prior to this incident was record his students'

presentations in his communications class. The camera on the day in question was

already set up, but there was no tape in it. The student was misbehaving and

16
distracting the rest of the class. She was talking to other students, causing them to

be off task. Everyone was doing their job except a few students around her. He

decided, at first, to move a number of students, not only her, "just to be fair"—i.e.,

so she would not feel singled out. Ultimately, he pretended to record her to see if

that would have any effect on her behavior.

Mr. Vazquez testified that he was not trying to intimidate or "bully" the

student. He was trying to maintain order so he could do his job and teach the other

students; or, more precisely, all of the students, including her. (Tr. 123:20-124:1.)

It is appropriate for the administration to advise a teacher that, in its opinion,

this type of corrective behavior is inappropriate and give a directive to not use that

technique in the future. Mr. Vazquez's actions were not, however, a matter clearly

proscribed by any law, regulation, school district policy, or directive prior to this

incident. Nor is it the type of situation that a reasonable teacher would know was

so horrific that it did not need to be specifically prohibited. It was simply a matter

of a teacher attempting to maintain order in what he believed to be a benign way.

Although there is no actual evidence that the student felt "humiliated" by the

incident (as asserted in Exhibit 9), being corrected by the teacher is, to some

extent, embarrassing and uncomfortable to any misbehaving student--whether it be

by being looked at, directed to stop misbehaving, given a demerit, sent to the

office, assigned after school detention, moved, assigned a seat next to the teacher's

17
desk, or any other technique employed by the teacher. There was no reason for Mr.

Vazquez to believe that pretending to record her would be any more disconcerting

to the student than any of these or however many other techniques teachers have

used since the dawn of time to promote attention to the lesson rather than to a

misbehaving student and her audience.

It also should be clear that Mr. Vazquez believes that this incident was

blown way out of proportion because the student involved was the daughter of the

board president. (Tr. 99:12-23.)

Regardless of all other considerations, Mr. Vazquez complied with the

directive he received during the previous school year while under a previous

contract concerning this method of classroom management, whether it was a valid

concern or not, whether he agreed with it or not. He followed his superiors' orders,

plain and simple. There is no evidence to the contrary. (See Tr. 125:12-126:15.)

(c) Exhibit 8 sets forth a number of complaints the principal says he

received from students. All are hearsay. No student or any witness who

purportedly observed the incidents recounted them at the nonrenewal hearing. Mr.

Vazquez testified that one of the allegations contained a grain of truth: that he had

said something to a student about his manner of dress. The district took the

position that this comment was meant to embarrass the student.

18
 Mr. Vazquez testified that a student came to his desk because the student

was trying to log in and his password was not working. Mr. Vazquez noticed that

the boy was wearing both suspenders and a belt. He did not want other students

making fun of him, so he told the student that belts are not usually worn with

suspenders. He was not trying to hurt the boy; in fact, he was trying to make sure

he did not get made fun of. (Tr. 131:13 through 133:4.)

Later, the principal told Mr. Vazquez for the first time that the boy had

"issues," and had a hard time dealing with students and other people; i.e., he was

very sensitive.

There is no valid evidence supporting any allegation that Mr. Vazquez did

anything improper in connection with this incident.

In sum, there is evidence that Mr. Vazquez received directives. There is no

evidence to support the allegations on which some of the directives were based. On

those where Mr. Vazquez acknowledges that the incident happened (i.e., the

showing of the movie, the pretend videotaping, and the discussion about the

student's manner of dress), the evidence demonstrates that these were not matters

that would justify the serious action of nonrenewal. Further, Mr. Vazquez

complied with all directives he was given once the administration's concerns were

brought to his attention.

6. Your 2013 summative evaluation reflects performance issues and
substantiates that there are issues with the following domains: IV-management and

19
student discipline; V-verbal and nonverbal communications with students; and VII-
operating procedures and requirements.

In the absence of evidence supporting these ratings, we have the situation

addressed in Seifert and quoted previously:

A holding to the effect that a school district may
nonrenew a teacher for a reason over which the teacher
has no control would render §21.203 an extremely futile
piece of legislation; the teacher's situation would be only
negligibly improved over the days in which he or she
could be nonrenewed for no reason or any reason, with
the exception, of course, of a reason prohibited by federal
law. A teacher could be nonrenewed for the reason that
"the superintendent (or principal, or one member of the
board of trustees) thinks you are incompetent." As long
as the superintendent (or principal, or one member of the
board of trustees) were to state under oath that, in his or
her opinion, the teacher in question was incompetent, that
one line of testimony, by itself, could serve as sufficient
evidence to support the board of trustees' nonrenewal
decision on appeal to the Commissioner.

The TCNA does not contemplate such a roundabout
method of nonrenewing a teacher; it was not enacted to
allow the nonrenewal of a competent (or excellent)
teacher based on second hand accounts of the tales of
children which grow more exaggerated with each
retelling.

There is nothing to suggest that the evaluation at issue is based on anything

other than the second hand accounts of tales of children, with no way to gauge

whether they are exaggerated, taken out of context, made up, or the product of

other flaws. This is especially true taking into account Dist. Exh. 5, which

demonstrates that:

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 (a) Mr. Vazquez's evaluations have been consistently excellent

throughout his career as a teacher in Los Fresnos ISD, at least prior to the incident

involving the daughter of the school board president; and

(b) His final evaluation for the 2012-13 school year contained none of the

negative ratings referred to in the Notice of Proposed Nonrenewal, despite the

incidents that occurred during that school year that the District claims, a year later,

are grounds for ending his employment. If these incidents, indeed, were so bad as

to justify the nonrenewal of Mr. Vazquez's contract more a year later, why was it

not important enough to adversely affect his evaluation at the time?

B. The Texas Rules of Evidence

The Defendants' arguments are:

1. The Board's Procedure allowed hearsay

The District established its own non-renewal hearing rules and advised

Vazquez that the Rules of Evidence would not control. (LFISD Brief, p. 35-36).

The problem with this "rationale" is that it ignores the issue: i.e., whether the

decision is supported by substantial evidence. The fact that the Board allows non-

evidence to be admitted does not mean that the non-evidence is somehow

magically transformed into actual evidence for the purpose of a substantial

evidence review. The Board could also allow testimony from a psychic or tarot

card reader and consult a Ouija Board or Magic-8 Ball before making its decision.

21
The question in this proceeding would remain whether there is substantial evidence

in the record no matter how many times "It is certain" pops up on the Magic 8-

Ball.

In short, no matter what nonsensical procedures the Board adopts for its

hearing, those procedures do not make evidence out of something that is not

evidence.

2. The Board was entitled to ignore the Rules of Evidence

Los Fresnos ISD, at page 35 of its brief, entitles an entire section of its

argument, "The Rules of Evidence Do Not Apply." Also, the Commissioner, at

page 16 of his brief, writes that the Texas Rules of Evidence do not apply to

nonrenewal hearings.

Both appellants argue that since the Texas Education Code provides that the

Rules of Evidence apply in termination hearings and nonrenewal hearings before a

certified hearing examiner, we must infer that the legislature did not intend for

those rules to apply in a nonrenewal hearing before a school board.

This principle can be applied to a certain extent, but not to the extent to

which it was misused at the hearing and before the Commissioner of Education on

appeal in this case.

While some leeway is afforded in an administrative hearing concerning the

Rules of Evidence, what is not evidence cannot serve as substantial evidence. As

-)2.
noted in Mr. Vazquez's discussion of the Standard of Review as to statutory

construction, the Commissioner has held consistently that "[w]hile the Texas Rules

of Evidence do not apply to local hearings, they do apply when the record is

reviewed on appeal." Dunlap v. Breckenridge ISD, Docket No. 334-R1-692, pp. 8-

9 (Comm'r Educ. 1995); Gipson v. Ore City ISD, Docket No. 178-R1-690

(Comm'r Educ. 1992). Hearsay, properly objected to at the local hearing, is to be

rightfully excluded and cannot support a board's decision. Anderson v.

Jacksonville ISD, Docket No. 142-RI-397, p. 2 (Comm'r Educ. 1997).

More specifically, the Commissioner explained in Gipson, at p. 3:

Hearsay — As evidence that Petitioner failed to maintain an effective
working relationship, or maintain good rapport, with colleagues,
Respondent offered the testimony of Cornelia Wilson, a second year,
non-certified probationary teacher. Wilson testified that two students
said Petitioner referred to Cornelia Wilson, who was eight months
pregnant, as a "big-bellied b**** and a white Motherf***er."
Petitioner denied making the statement. The students were not
available for cross examination by Petitioner. The use of said
language in the presence of students is so damaging that Respondent's
failure to have the students testify is surprising. Because Cornelia
Wilson's testimony was objected to as hearsay, it will not be held to
be evidence of Respondent's cause for nonrenewal.

Further, in 2005, the Commissioner followed suit in Carnot v. North East

Independent School District, No. 066-R1-605, pp. 2-3 (Comm'r Educ. 2005):

23
 Hearsay

Petitioner argues that the Chronology of Events and a statement by
Petitioner's supervisor should not have been admitted into evidence
because they were hearsay. In both cases, the statements are hearsay
and should not have been admitted.

Perhaps the strongest statement to this effect came in a contemporaneous

decision issued by The Honorable Raymon L. Bynum, the Commissioner of

Education in 1981when the Term Contract Nonrenewal Act was enacted:

Regardless of the manner in which the local board of trustees
structures its hearings, however, §21.207(a) of the TCNA authorizes
the Commissioner of Education to review the decisions of local school
boards in nonrenewal cases on a substantial evidence basis. It is well-
established that when the legislature uses a word, such as "evidence,"
which has a settled legal significance, it is presumed to have been
used in that sense. [Citation omitted.]

In the present case, it is not necessary to define precisely what
"evidence" is, because it is clear what "evidence" is not: in Texas the
hearsay rule applies in administrative hearings, just as it does in court.
And it is a rule that forbids the reception of evidence rather than one
that merely goes to the weight of the evidence." (Citation omitted.]

... the . . . well-established rule in Texas [is] that hearsay evidence is
"[w]holly incompetent and without probative force, and can never
form the basis for establishing a cause of action , finding of fact, or
judgment of court, whether objected to or not.

Seifert v. Lingleville ISD, No. 174-R1 a-782, p. 3 (Comm. Educ., Jan. 1983).

In the thirty-one years since the Seifert decision, the hearsay rule has been

loosened in some respects. Section 2001.081 of the Government Code, discussed

below, allows some hearsay exceptions in hearings before state agencies under

24
certain circumstances with regard to facts that are not reasonably susceptible of

proof. In addition, the courts have held that unobjected to hearsay can have some

probative value.

The present case, however, does not involve an evidentiary hearing before a

state agency, does not involve facts not reasonably susceptible of proof, and does

not involve unobjected to hearsay.

"Susceptible" is defined as:

capable of submitting to an action, process, or operation