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UPON REASSIGNMENT

An employee may be employed under a probationary contract if the employee voluntarily accepts an assignment in a new professional capacity that requires a different class of certificate under Education Code Chapter 21, Subchapter B than the class of certificate held by the employee in the professional capacity in which the employee was previously employed.

This provision does not apply to an employee who is returned by the School to a professional capacity in which the employee was employed by the School before the School employed the employee in the new professional capacity. 

The employee is entitled to be employed in the original professional capacity under the same contractual status as the status held by the employee during the previous employment by the School in that capacity.

Education Code 21.102(a-1) [See 19 TAC 230.33 for list of certificate classes]

IN LIEU OF DISCHARGE, TERMINATION, OR NONRENEWAL

In lieu of terminating a term contract employee, or not renewing a term contract, the School may, with written consent of the employee, return the employee to probationary contract status.  Education Code 21.106(a)

AFTER BOARD PROPOSAL

Except as provided below, an employee may agree to be returned to probationary status only after receiving written notice that the Board has proposed discharge, termination, or nonrenewal. [See DF series]

AFTER NOTICE FROM SUPERINTENDENT

An employee may agree to be returned to probationary contract status after receiving written notice of the superintendent's intent to recommend discharge, termination, or nonrenewal.

Notice

The notice must inform the employee of the School’s offer to return the employee to probationary contract status, the period during which the employee may consider the offer, and the employee's right to seek counsel. The School must provide the employee at least three business days after the employee
receives the notice to agree to be returned to probationary contract status. This provision does not require a superintendent to provide notice of intent to recommend discharge, termination, or nonrenewal.
Education code 21.106(d)

NEW PROBATIONARY PERIOD

An employee returned to probationary status must serve a new probationary period as if the employee were employed by the School for the first time.  Education Code 21.106(c)

Adopted:          1/26/96
Amended:         9/26/97, 4/1/05, 4/5/13
Reviewed:        1/24/02

SUSPENSION WITHOUT PAY  

The Board may, for good cause as determined by the Board, suspend a contract employee without pay:

  1. pending discharge, or
  2. in lieu of termination.

The suspension may not extend beyond the end of the school year. 

Education Code 21.211(b)

Back-Pay

If no discharge occurs subsequent to a suspension without pay, the employee is entitled to back pay for the period of suspension.  Education Code 21.211(c)

GROUNDS FOR DISMISSAL

The Board may terminate a term contract and discharge an employee at any time for:

  1. Good cause as determined by the Board; or
  2. A financial exigency that requires a reduction in personnel.

Education Code 21.211(a)

Notice

Before any term contract employee is dismissed for good cause, the employee shall be given reasonable notice, in writing, of the charges against him or her and an explanation of the School's evidence set out in sufficient detail to fairly enable the employee to show any error that may exist.  Cleveland Bd. of Educ. v. Loudermill,  470 U.S. 532 (1985)

HEARING

If a term contract employee desires a hearing before an independent hearing examiner, the employee must file a written request with the commissioner of education not later than the 15th day after the date the employee receives notice of the proposed termination or suspension without pay.  The term contract employee must provide the School's Director of Human Resources with a copy of the request and must provide the commissioner with a copy of the notice.  Policy DFD contains the process for a contract employee to request a hearing before an independent hearing examiner.

The parties may agree in writing to extend by not more than ten days the deadline for requesting a hearing.

Education Code 21.251(a),.253 [See DFD]

FINANCIAL EXIGENCY

An employee who is protesting proposed action to terminate a term contract at any time on the basis of a financial exigency declared under Education Code 44.011 [see CEA] that requires a reduction in personnel must notify the Board in writing not later than the tenth day after the date the employee receives notice of the proposed action.  The employee is entitled to a hearing in the manner provided under Education Code 21.207 for nonrenewal of a term contract [see DFBB] or a hearing under Education Code Chapter 21, Subchapter F, as determined by the Board.  Education Code 21.159

DEFINITION OF "DAY"

The definition of "day" means calendar day unless otherwise defined in law or Board policy.

In computing any period of time prescribed or allowed by this policy, the day of the aggrieved act, event, or default after which the designated period of time begins to run is not to be included.  The last day of the period is to be included, unless it is a Saturday, Sunday, or legal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday or legal holiday.  Saturdays, Sundays and legal holidays shall not be counted for any purpose in any time period of five days or less in this policy (or applicable law).  The day on which a grievance is filed is not to be counted in calculating the designated period of time.  If a complaint is received by mail, the date of the filing is the date of the postmark. 

Texas Rules of Court, Part I, Rule 4. 

SUSPENSION WITH PAY

The employee may be suspended with pay pending the outcome of an investigation or the dismissal process. 

report by principal

The Principal must notify the Superintendent not later than the seventh business day after the date of an educator’s termination of employment or resignation following an alleged incident of misconduct described by Education Code 21.006(b) [see DP].  Education Code 21.006(b-2); 19 TAC 249.14(e)

NOTICE TO SBEC

The circumstances in which a certified employee's dismissal will be reported to the State Board of Educator Certification are contained in Board Policy DF.

Adopted:         7/13/79

Amended:       3/7/80, 9/9/83, 6/29/84, 11/9/84, 9/15/88, 1/26/90, 5/26/94, 11/17/95, 1/26/99, 1/24/02, 4/1/05, 4/5/13, 10/3/14, 11/21/14, 1/25/19

Reviewed:       5/24/96

DEFINITION OF "TEACHER"

As used in this policy, the term "teacher" means a principal, supervisor, classroom teacher, counselor, or other full-time professional employee who is required to hold a certificate issued under Subchapter B, Chapter 21, except the term does not include a superintendent, a professional licensed to provide direct services to students, or any employee who does not provide direct and regular services to students at the school.

DEFINITION OF "DAY"

The definition of "day" means calendar day unless otherwise defined in law or Board policy.

In computing any period of time prescribed or allowed by this policy, the day of the aggrieved act, event, or default after which the designated period of time begins to run is not to be included.  The last day of the period is to be included, unless it is a Saturday, Sunday, or legal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday or legal holiday.  Saturdays, Sundays and legal holidays shall not be counted for any purpose in any time period of five days or less in this policy (or applicable law).  The day on which a grievance is filed is not to be counted in calculating the designated period of time.  If a complaint is received by mail, the date of the filing is the date of the postmark. 

Texas Rules of Court, Part I, Rule 4. 

GROUNDS FOR NONRENEWAL

The Board may terminate a term contract for a financial exigency that requires a reduction in personnel.  Education Code 21.211(a) [See CEA]

EVALUATIONS

Before making a decision not to renew a term contract, the Board shall consider the most recent evaluations if the evaluations are relevant to the reason for the Board's action.  Education Code 21.203(a)

In the case of a classroom teachers, the School shall use the teacher's consecutive appraisals from more than one year, if available, in making employment decisions.  Education Code 21.352(e)

(See DNA and DNB)

REASONS FOR NONRENEWAL OF TEACHER CONTRACT

The recommendation to the Board and its decision not to renew a contract under this policy shall not be based on a teacher's exercise of Constitutional rights, or based unlawfully on an employee's race, color, religion, sex, national origin, disability, or age.

Reasons for proposed nonrenewal of a professional certified employee's contract, other than contracts issued in accordance with Education Code 30.024(b), shall be:

  1. Deficiencies pointed out in observation reports, appraisals or evaluations, supplemental memoranda, or other communications of which the professional has notice, whether the communication was directed to such person.
  2. Failure to fulfill duties or responsibilities.
  3. Incompetency or inefficiency in the performance of duties.
  4. Inability to maintain discipline in any situation in which the employee is responsible for the oversight and supervision of students.
  5. Insubordination or failure to comply with official directives.
  6. Failure to comply with Board policies or administrative regulations.
  7. Excessive absences.
  8. Conducting personal business during school hours when it results in neglect of duties.
  9. Reduction in force because of decline in TSBVI enrollment, financial exigency, or a change in programs.
  10. Drunkenness or excessive use of alcoholic beverages; or possession, use, or being under the influence of alcohol or alcoholic beverages while on school property, while working in the scope of the employee’s duties, or while attending any school activity.
  11. The illegal possession, use, manufacture, or distribution of a controlled substance, a drug, a dangerous drug, hallucinogens, or other substances regulated by state statutes.
  12. Conviction of a felony, or any crime involving moral turpitude.
  13. Failure to report within seven days any arrest, indictment, conviction, no contest or guilty plea, or other adjudication for any misdemeanor offense contained in Texas Penal Code Title V or Title VI, classified as a crime “against the person” or a crime “against the family”, any felony offense, or any offense whether a misdemeanor or felony which involves either the use of or possession of, or related to, alcohol or any illegal drug.   [See Policy DBAA]
  14. Use of a computer, school mail, or any other means of communication in a manner that is harassing, offensive, or disruptive to school operations.
  15. Failure to meet the School's standards of professional conduct.
  16. Misappropriation of public funds.
  17. Theft of School property.
  18. Failure to comply with reasonable School requirements regarding advanced course work or professional improvement and growth.
  19. Disability, not otherwise protected by law, that prevents the employee from performing the essential functions of the job.
  20. Any activity, school-connected or otherwise, that because of the publicity given it or knowledge of it among students, faculty, and community, impairs or diminishes the employee's effectiveness in the School.
  21. Any breach by the employee of an employment contract or any reason specified in the  employee’s employment contract.
  22. Failure to maintain an effective working relationship or maintain good rapport with parents, the community, or colleagues.
  23. A significant lack of student progress attributable to the educator.
  24. Behavior that presents a danger of physical harm to a student or to other individuals.
  25. Assault on a person on school property or at a school-related function, or on an employee, student, or student’s parent regardless of time or place.
  26. Use of profanity in the course of performing any duties of employment, whether on or off school premises, in the presence of students, staff, or members of the public, if reasonably characterized as unprofessional.
  27. Falsification of records or other documents related to the School's activities.
  28. Falsification or omission of required information on an employment application.
  29. Misrepresentation of facts to a supervisor or other TSBVI official in the conduct of TSBVI business.
  30. Failure to fulfill the requirements for certification, including passing certification examinations required by state law for the employee’s assignment and the requirement to obtain visually handicapped endorsement within the required timeline.
  31. Failure to achieve or maintain “highly qualified” status as required for the employee’s assignment.
  32. Failure to fulfill the requirements of a deficiency plan under an Emergency Permit, a Special Assignment Permit, or a Temporary Classroom Assignment Permit.
  33. Abandonment of contract with the School.
  34. Any attempt to encourage or coerce a child to withhold information from the child's parent or from other School personnel.
  35. The solicitation, encouragement, insinuation, or consummation of an inappropriate written, verbal, or physical relationship with a student.
  36. Violation of the privacy rights of students under the federal Family Education Rights and Privacy Act (FERPA) and the Individual with Disabilities Act (IDEA).
  37. Any reason that makes the employment relationship void or voidable, such as a violation of federal, state, or local law.
  38. Reasons constituting good cause for dismissing the employee during the contract term.

NOTICE TO TEACHERS

Not later than the tenth day before the last day of instruction in a school year, the Board shall notify in writing each employee whose contract is about to expire whether the Board proposes to renew or not renew the contract.

The notice must be delivered personally by hand delivery to the employee on the campus.  If the employee is not present on the campus on the date that hand delivery is attempted, the notice must be mailed by prepaid certified mail or delivered by express delivery service to the employee’s address of record with the School.  Notice that is postmarked on or before the tenth day before the last day of instruction is considered timely for these purposes.

Failure to Provide Timely Notice

The Board's failure to give notice of a proposed renewal or nonrenewal constitutes an election to employ the teacher in the same professional capacity for the following school year.

Education Code 21.206

REQUEST FOR HEARING

If the teacher desires a hearing after receiving notice of the proposed nonrenewal, the employee shall notify the Board in writing not later than the 15th day after:

  1. The date the teacher receives hand delivery of the notice of proposed nonrenewals;
  2. or The date the notice is delivered to the teacher’s address of record with the School, if the notice is mailed by prepaid certified mail or delivered by express delivery service.

The Board shall provide for a hearing to be held not later than the 15th day after receiving written notice from the teacher requesting a hearing, unless the parties agree in writing to a different date.   The hearing shall be closed unless the employee requests an open hearing and shall be conducted in accordance with rules adopted by the School.

Education Code 21.207(a)

BOARD HEARING

At the hearing before the Board the teacher may: 

  1. Be represented by a representative of the teacher’s choice;
  2. Hear the evidence supporting the reason for nonrenewal;Cross-examine adverse witnesses; and
  3. Present evidence.

Education Code 21.207(c)

BOARD DECISION

To evaluate the evidence put before it, the Board shall use the preponderance of the evidence standard of review.  Whitaker v. Marshall Indep. Sch. Dist., Tex. Comm’r. of Educ. Decision No. 112-R1-598 (1998)

Following the hearing, the Board shall take the appropriate action and notify the employee in writing of that action within 15 days following the conclusion of the hearing.  Education Code 21.208

HEARING EXAMINER

The Board may use the process described at DFD.   Education Code 21.207(b)

NO HEARING

If the teacher fails to request a hearing, the Board shall take the appropriate action and notify the teacher in writing of that action not later than the 30th calendar day after the date the notice of proposed nonrenewal was sent.  Education Code 21.208

APPEALS

A teacher aggrieved by a decision of the Board to nonrenew a term contract may appeal to the commissioner for a review of the Board's decision.  Education Code 21.209

CONTRACTS NOT COVERED BY EDUCATION CODE CHAPTER 21

When the Board enters into a contract under Education Code 30.024(b) with any employee except for a teacher, as that term is defined in that subsection, that contract shall not be subject to the provisions of Education Code Chapter 21 or this policy.

Adopted:          1/13/81

Amended:        11/11/83, 6/29/84, 11/9/84, 7/12/85, 1/23/87, 5/29/87, 1/14/88, 6/1/89, 1/26/90, 11/30/90, 5/30/91, 9/27/91, 5/26/94, 11/17/95, 5/24/96, 3/21/97, 1/28/00, 7/26/02, 4/1/05, 4/5/13, 4/4/14, 10/3/14, 11/21/14

Reviewed:        

APPLICABILITY

This hearing process applies only if a teacher or other professional staff member serving under a probationary or term contract (see Policy DFBB) requests a hearing after receiving notice of a proposed decision to:

  1. Terminate a probationary or term contract before the end of the contract period, except as provided below; or
  2. Suspend without pay.

Exception

This hearing process before a hearing examiner does not apply to a decision to:

  1. Terminate a probationary contract at the end of the contract term.
  2. Not renew a term contract, unless a board has adopted this process for nonrenewals; or
  3. Terminate a probationary or term contract before the end of the contract period based on a financial exigency declared under Education Code 44.011 [see CEA] that requires a reduction in personnel, unless the board has decided to use this hearing process.
  4. The Board may use the hearing process before a hearing examiner as described in the following section and in Education Code 21.207(b) for nonrenewal of a term contract or termination of a probationary or term contract based on financial exigency.

Education Code 21.251

DEFINITION OF "DAY"

In computing any period of time prescribed or allowed by this policy, the day of the aggrieved act, event, or default after which the designated period of time begins to run is not to be included.  The last day of the period is to be included, unless it is a Saturday, Sunday, or legal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday or legal holiday.  Saturdays, Sundays and legal holidays shall not be counted for any purpose in any time period of five days or less in this policy (or applicable law).  Texas Rules of Court, Part I, Rule 4.  As used in this policy, the term "day", unless otherwise specified, means business days Monday-Friday unless one or more of those days is a legal holiday or is considered a school closure as defined annually by the Superintendent.

REQUEST FOR HEARING BEFORE A HEARING EXAMINER

Not later than the 15th day after the date the employee receives notice of one of the proposed contract actions listed above, the employee must file a written request with the Commissioner of Education for a hearing before a hearing examiner. The employee must provide the School with a copy of the request and must provide the Commissioner with a copy of the notice.  The Board designates the School's Director of Human Resources to receive the employee's copy of the request for a hearing.  The parties may agree in writing to extend by not more than ten days the deadline for requesting a hearing.

Education Code 21.253

ASSIGNMENT OF HEARING EXAMINER BY AGREEMENT

The parties may agree to select a hearing examiner from the list maintained by the Commissioner or a person who is not certified to serve as a hearing examiner, provided that person is licensed to practice law in Texas. If the parties agree on a hearing examiner, the parties shall, before the date the Commissioner is permitted to assign a hearing examiner, notify the Commissioner in writing of the agreement, including the name of the hearing examiner selected.

BY APPOINTMENT

If the parties do not select a hearing examiner by agreement, the Commissioner shall assign the hearing examiner not earlier than the sixth business day and not later than the tenth business day after the date on which the Commissioner receives the request for a hearing. When a hearing examiner has been assigned, the Commissioner shall notify the parties immediately.

Rejection

The parties may agree to reject a hearing examiner for any reason and either party is entitled to reject an assigned hearing examiner for cause. A rejection must be in writing and filed with the Commissioner not later than the third day after the date of notification of the hearing examiner's assignment. If the parties agree to reject the hearing examiner or if the Commissioner determines that one party has good cause for the rejection, the Commissioner shall assign another hearing examiner.

FINALITY OF DECISION

After the employee receives notice of the proposed contract action, the parties may agree in writing that the hearing examiner's decision be final and nonappealable on all, or some, issues.
Education Code 21.254

POWERS OF HEARING EXAMINER

The hearing examiner may issue subpoenas, administer oaths, rule on motions and the admissibility of evidence, maintain decorum, schedule and recess the proceedings, allow the parties to take depositions, or use other means of discovery, and make any other orders as provided by Commissioner rule.

CONDUCT OF HEARING

The hearing and any depositions must be held within the geographical boundaries of the regional education service center that serves the School.
Education Code 21.255

Schedule Restriction

A hearing before a hearing examiner may not be held on a Saturday, Sunday, or a state or federal holiday, unless all parties agree.

Education Code 21.257(c)

Private

A hearing before a hearing examiner shall be private unless the employee makes a written request for a public hearing.

Exception

If necessary to maintain decorum, the hearing examiner may close a hearing that an employee has requested be public.

Protection of witnesses

To protect the privacy of a witness who is a child, the hearing examiner may close the hearing to receive the testimony or order that the testimony be presented by procedures in Article 38.071, Code of Criminal Procedure.

Employee Rights

At the hearing, the employee has the right to:

  1. Be represented by a representative of the employee's choice;
  2. Hear the evidence on which the charges are based;
  3. Cross-examine each adverse witness; and
  4. Present evidence.

The hearing is not subject to the Administrative Procedure Act.

The hearing shall be conducted in the same manner as a trial without a jury in state district court. A certified shorthand reporter shall record the hearing.

Evidence

The Texas Rules of Civil Evidence shall apply at the hearing. An evaluation, or appraisal, of the teacher is presumed to be admissible at the hearing. The hearing examiner's findings of fact and conclusions of law shall be presumed to be based only on admissible evidence.

Burden of Proof

The School has the burden of proof by a preponderance of the evidence at the hearing.  Education Code 21.256

Costs

The School shall bear the cost of the services of the hearing examiner and certified shorthand reporter and the production of any original hearing transcript. Each party shall bear its costs of discovery, if any, and its attorney's fees.  Education Code 21.255(e)

RECOMMENDATION

Not later than the 60th calendar day after the date on which the Commissioner receives a request for a hearing before a hearing examiner, the hearing examiner shall complete the hearing and make a written recommendation. The recommendation must include findings of fact and conclusions of law.

The recommendation may include a proposal for granting relief, including reinstatement, back pay, or employment benefits. The proposal for relief may not include attorney's fees or other costs associated with the hearing or appeals from the hearing. The hearing examiner shall send a copy of the recommendation to each party, the Board President, and the Commissioner.

Waiver of Deadline

The parties may agree in writing to extend by not more than 45 calendar days the right to a recommendation by the date specified above.

Education Code 21.257

CONSIDERATION

The Board, or a designated subcommittee, shall consider the hearing examiner's record and recommendation at the first Board meeting for which notice can be posted in compliance with the open meetings laws.

ORAL ARGUMENT AND RECORDING

At the meeting, the Board or subcommittee shall allow each party to present an oral argument to the Board, or subcommittee. The Board by this written policy limits the amount of time for oral argument, provided equal time is allotted each party. A certified shorthand reporter shall record any such oral argument.

Legal Advice

The Board, or subcommittee, may obtain advice from an attorney who has not been involved in the proceedings.

Education Code 21.258, 21.260

DECISION

Not later than the 10th day after the date on which the meeting to consider the hearing examiner's recommendation is held, the Board, or subcommittee, shall announce its decision, which must include findings of fact and conclusions of law, and may include a grant of relief.

The Board or subcommittee may adopt, reject, or change the hearing examiner's conclusions of law, or proposal for granting relief.  A determination by the hearing examiner regarding good cause for the suspension of an employee without pay or the termination of a probationary or term contract is a conclusion of law and may be adopted, rejected, or changed by the Board or board subcommittee.

The Board may reject or change a finding of fact made by the hearing examiner:

  1. Only after reviewing the record of the proceedings; and
  2. Only if the finding of fact is not supported by substantial evidence.

The Board or subcommittee shall state in writing the reason for and legal basis for a change or rejection.

Education Code 21.257; .259

Recording

A certified shorthand reporter shall record the announcement of the decision. The School shall bear the cost of the reporter's services.  Education Code 21.260

RECORD OF PROCEEDINGS

The Commissioner shall consider the appeal solely on the basis of the local record and may not consider any additional evidence or issue. Education Code 21.301(c)

The record of the proceedings before the independent hearing examiner shall include:

  1. The transcripts of proceedings at the local level;
  2. All evidence admitted;
  3. All offers of proof;
  4. All written pleadings, motions, and intermediate rulings;
  5. A description of matters officially noticed;
  6. If applicable, the recommendation of the independent hearing examiner;
  7. The transcript of the oral argument before the board or board subcommittee;
  8. The decision of the board or board subcommittee; and
  9. If applicable, the board or board subcommittee's written reasons for changing the recommendation of the independent hearing examiner.

19 TAC 157.1072(e)

Adopted:          1/17/95
Amended:        4/1/05, 5/23/07, 4/5/13, 10/3/14
Reviewed:        1/26/99

RESIGNATION WITHOUT CONSENT (UNILATERAL RESIGNATION)

An educator employed under a probationary or term contract for the following school year may relinquish the position and leave TSBVI employment at the end of the school year without penalty by filing a written resignation with the Board or the Superintendent not later than the 45th day before the first day of instruction of the following school year.

A written resignation mailed by prepaid certified or registered mail to the Board President or the Superintendent at the post office address of the School is considered filed at the time of mailing.

Education Code 21.105(a), .160(a), .210(a) 

An unequivocal resignation filed not later than the 45th day before the first day of instruction of the following school year is effective upon filing with the School and the School cannot reject such a resignation.  The resignation cannot be withdrawn by the teacher based on an argument that the School has not accepted the resignation.  Fantroy v. Dallas Indep. Sch. Dist., Tex. Comm’r of Educ. Decision. No. 034-R9-0206 (Mar. 5, 2009); Garcia v. Miles Indep. Sch. Dist., Tex. Comm’r of Educ. Decision No. 055-Rl-503 (Nov. 30, 2006)

RESIGNATION WITH CONSENT

A contractual employee may resign, with the consent of the Board or the Superintendent, at any other mutually agreeable time.  Education Code 21.105(b), .160(b), .210(b)

SANCTIONS FOR ABANDONMENT OF CONTRACT

On written complaint by the School, the State Board for Educator Certification (SBEC) may impose sanctions against an employee who is employed under a contract for the following school year and who:

  1. Resigns;
  2. Fails, without good cause, to comply with the resignation deadline or the provision regarding resignation by consent; and
  3. Fails, without good cause, to perform the contract.

Education Code 21.105(c), 21.160(c), 21.210(c)

Acceptance or approval of a resignation indicates consent to abandonment of contract.  Quitman Indep. Sch. Dist. v. Wilkerson, Tex. Comm’r of Educ. Decision No. 142-TTC-698 (Dec. 2, 1999); Houston Indep. Sch. Dist. v. Johnson, Tex. Comm’r of Educ. Decision No. 054-TTC-1196 (Sept. 28, 1998)

SBEC shall not pursue sanctions against an educator who is alleged to have abandoned his or her contract unless the Board:

  1. Submits a written complaint within 30 calendar days after the effective date of the educator’s separation from employment from TSBVI. Unless the School and the educator have a written agreement to the contrary, the effective date of separation from employment is the first day that, without permission, the educator fails to appear for work under the contract.
  2. Renders a finding that good cause did not exist for the employee's resignation under Education Code 21.105(c)(2) (probationary contract) or 21.210(c)(2) (term contract). This finding constitutes prima facie evidence of the educator’s lack of good cause but is not a conclusive determination.
  3. Submits the following required attachments to the written complaint:
    1. The educator’s resignation letter, if any;
    2. The agreement with the educator regarding the effective date of separation from employment, if any;
    3. The educator’s contract; and
    4. Board meeting minutes indicating a finding of “no good cause.” If the Board does not meet within 30 calendar days of the educator’s separation from employment, the minutes may be submitted within 10 calendar days after the next Board meeting.

19 TAC 249.14(j)

REPORT TO SBEC

In addition to the reporting requirement under Family Code 261.101 and 261.401 [see FFG], the Superintendent must file a report with SBEC not later than the seventh day after the Superintendent first obtains or has knowledge of information indicating that an educator resigned and reasonable evidence supported a recommendation by the Superintendent to terminate the educator because he or she committed one of the acts specified at Education Code 21.006.

Before accepting the educator's resignation, the Superintendent shall inform the educator in writing that report will be filed that may result in sanctions against the employee's certificate.

The Superintendent shall notify the Board prior to filing a report of a resignation with SBEC.

Education Code 21.006(b), (c), (d); 19 TAC 249.14(d) [See DF, DH, DHB]

INVESTIGATION

The Superintendent shall complete an investigation of an educator that is based on reasonable cause to believe the educator may have abused or otherwise committed an unlawful act such as a romantic relationship or sexual contact with a student or minor, despite the educator’s resignation from TSBVI employment before completion of the investigation.  Education Code 21.006(b-1); 19 TAC 249.14(d)(3)(C)

REPORT BY PRINCIPAL

Each Principal must notify the Superintendent, and may be subject to sanctions for failure to do so, not later than the seventh business day after the date of an educator’s resignation following an alleged incident of misconduct described by Education Code 21.006(b) [see DP].  Education Code 21.006(b-2); 19 TAC 249,14(e)

Adopted:         1/11/80

Amended:       3/7/80, 1/26/90, 3/9/90, 5/26/94, 11/17/95, 1/24/02, 3/24/06, 4/5/13, 5/31/19

Reviewed:       1/26/99

BOARD AUTHORITY

The Board is charged with the responsibility of governance of the School; governance includes the making of responsible choices in managing the finances and personnel of the School.  Stidham v. Anahuac Indep. Sch. Dist., Tex. Comm’r of Educ. Decision No. 205-R2-687 (1990) (upholding reduction in force due to financial exigency)

The School is always free to change its organizational structure as it seeks to increase its efficiency.  Wasserman v. Nederland Indep. Sch. Dist., Tex. Comm’r of Educ. Decision No. 171-R1-784 (1988)

CONSIDERATION FOR OPEN POSITIONS

The Commissioner has held that, when a position is eliminated due to a necessary reduction in force, the School must transfer the employee to a different position if the teacher meets a School’s objective criteria for that position.  Objective criteria may include credentials, education, experience, applying for the position, and interviewing for the position.  The School need not offer a position to a teacher who refuses to apply and interview for an open position.  Amerson v. Houston Indep. Sch. Dist., Tex. Comm’r of Educ. Decision No. 022-R2-1202 (2003)

PROBATIONARY CONTRACT

A probationary contract employee may be discharged at any time for good cause as determined by the Board.  If the employee is protesting proposed action to terminate a probationary contract before the end of the contract period on the basis of a financial exigency declared under Education Code 44.011 [see CEA], the employee is entitled to a hearing in the manner provided under Education Code 21.207 for nonrenewal of a term contract [see DFBB] or a hearing under Education Code Chapter 21, Subchapter F (hearings before independent hearing examiner) [see DFD], as determined by the board.  Education Code 21.104(a), .1041, .159

The Board may terminate a probationary contract at the end of the contract period if in the Board’s judgment such termination will serve the best interests of the School.  Education Code 21.103(a)

A board may terminate a term contract and discharge a term contract employee at any time due to a financial exigency that requires a reduction in personnel.  Education Code 21.211(a)

An employee who is protesting proposed action to terminate a term contract at any time on the basis of a financial exigency declared under Education Code 44.011 [see CEA] that requires a reduction in personnel must notify the Board in writing not later than the tenth day after the date the employee receives notice of the proposed action.  The employee is entitled to a hearing in the manner provided under Education Code 21.207 for nonrenewal of a term contract [see DFBB] or a hearing under Education Code Chapter 21, Subchapter F (hearings before independent hearing examiner) [see DFD], as determined by the board.  Education Code 21.159

Financial Exigency

The Board may adopt a resolution declaring a financial exigency for the School.  Education Code 44.011  [See CEA]

Hearing Examiner

The independent hearing examiner process does not apply to a decision to terminate a probationary or term contract before the end of the contract period based on a financial exigency declared under Education Code 44.011 [see CEA] that requires a reduction in personnel, unless the Board has decided to use this hearing process.  Education Code 21.251

APPLICABILITY

This policy shall apply only to reductions in force of contractual employees when the reduction in force requires the termination of:

  1. A contract governed by Chapter 21 of the Education Code in the following circumstances:
    1. A probationary contract during the contract period,
    2. A term contract during the contract period, or
    3. A term contract at the end of the contract period.
  2. A contract not governed by Chapter 21 of the Education Code during the contract period.

This policy shall not apply to termination at any time of at-will employment (see TSBVI Board Policy DFFD); termination of a probationary contract at the end of the contract period; or termination at the end of a contract period of a contract not governed by Chapter 21 of the Education Code (see TSBVI Board Policy DCE). 

DEFINITIONS

Definitions used in this policy are as follows:

  1. "Financial exigency" shall mean any event or occurrence that creates a need for the School to reduce financial expenditures for personnel including, but not limited to, a decline in the School’s financial resources, a decline in enrollment, a cut in funding, or an unanticipated expense or capital need. 
  2. "Program change" shall mean any elimination, curtailment, or reorganization of a curriculum offering, program, or school operation.   The term shall include, but not be limited to, a change in curriculum objectives, a modification or reorganization of staffing patterns, a redirection of financial resources to meet the educational needs of the students, or a lack of student response to particular course offerings, legislative revisions to programs.

SCOPE OF REDUCTION

When a reduction in force is to be implemented, the Superintendent may assist the Board by making recommendations to the Board regarding the employment areas to be affected.  In determining affected employment areas, the Board may combine or coordinate employment areas, as defined below.

EMPLOYMENT AREAS

A reduction in force may be implemented in one, several, or all employment areas. Employment areas shall be defined as:

  1. Comprehensive Programs Instruction including but not limited to the sub-areas of Lead Teaching, Behavior Support, Self-Contained Instruction, Art Instruction, Music Instruction, Physical Education, other subject matter instruction and Instructional Substitute.  Each sub-area is a separate employment area.
  2. Comprehensive Programs Related Services including but not limited to the sub-areas of Occupational Therapy, Physical Therapy, Music Therapy, Educational Diagnostic Services, Psychological Services, Social Work Services, Orientation and Mobility Services, and Speech Language Therapy Services.  Each sub-area is a separate employment area.
  3. Short-Term Programs.
  4. Outreach Program including but not limited to the sub-areas of Education of Students with Visual Impairments, Education of Students Who Are Deafblind, Teacher Preparation, and Technology.  Each sub-area is a separate employment area.
  5. Administrative Positions including but not limited to Principal, Assistant Principal and Program Directors.

CRITERIA FOR DECISIONS

Using the following criteria, the Superintendent shall recommend to the Board employees within the affected employment area(s) for discharge or nonrenewal because of a reduction in force.

  1. Certification: Appropriate certification and/or endorsement for current or projected assignment.
  2. Performance: Effectiveness as reflected by appraisal records and other written evaluative information.
  3. If the Superintendent in his or her discretion decides that the documented performance differences between two or more reduction in force prospects are too insubstantial to rely upon, he or she may proceed to apply criteria 3 and, thereafter and to the extent needed, criterion 4.
  4. Seniority: Length of service at the School (this criterion does not require that the service be continuous).
  5. Professional Background: Professional education and work experience related to the current or projected assignment.

CONSIDERATION FOR AVAILABLE POSITIONS

After the Superintendent has identified the appropriate employees in the affected area(s), those employees shall be considered for other available positions for which they are qualified up to the date of a hearing requested in accordance with the provisions below.

NOTICE AND HEARING

After considering the Superintendent’s recommendation, and if no vacancies exist for which the identified employees are qualified, the Board shall determine the employees to be proposed for discharge or nonrenewal, as appropriate.  The Superintendent shall provide each employee written notice of the proposed action, including a statement of the reason(s) requiring such action and notice that the employee is entitled to a hearing.

Adopted:       5/14/83
Amended:      5/29/87, 9/27/91, 11/18/94, 11/17/95, 5/24/96, 3/21/97, 1/24/02, 5/28/03, 4/5/13
Reviewed:    

EMPLOYEE FREE SPEECH

TSBVI employees do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. However, neither an employee nor anyone else has an absolute constitutional right to use all parts of a school building or its immediate environs for unlimited expressive purposes. When a public employee makes statements pursuant to his or her official duties, the employee is not speaking as a citizen for First Amendment purposes, and the Constitution does not insulate the communications from employer discipline.  Garcetti v. Ceballos, 547 U.S. 410 (2006); Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969)

WHISTLEBLOWER PROTECTION

The TSBVI Board of Trustees or its agents shall not suspend or terminate the employment of, or take other adverse personnel action against, an employee who in good faith reports a violation of law by a district or another public employee to an appropriate law enforcement authority. A "report" is made to an "appropriate law enforcement authority" if the authority is a part of a state or local governmental entity or the federal government that the employee in good faith believes is authorized to:

  1. Regulate under or enforce the law alleged to be violated in the report; or
  2. Investigate or prosecute a violation of criminal law.

Gov't Code 554.002

A supervisor who suspends or terminates the employment of or takes an adverse personnel action against an employee for reporting a violation of law shall be subject to civil penalties.

Gov't Code 554.008

Definitions

“Employee” means an employee or appointed officer who is paid to perform services for TSBVI.  It does not include independent contractors.  Gov’t Code 554.001(4)

“Law” means a state or federal statute, an ordinance of a local governmental entity, or a rule adopted under a statute or ordinance.  Gov’t Code 554.001(1)

A "good faith" belief that a violation of the law occurred means that:

  1. The employee believed that the conduct reported was a violationof law; and
  2. The employee's belief was reasonable in light of the employee's training and experience. Wichita County v. Hart, 917 S.W.2d 779 (Tex. 1996)

A "good faith" belief that a law enforcement authority is an appropriate one means:

  1. The employee believed the governmental entity was authorized to:
    1. Regulate under or enforce the law alleged to be violated in the report, or
    2. Investigate or prosecute a violation of criminal law; and
  2. The employee's belief was reasonable in light of the employee's training and experience. Tex. Dept. of Transp. v. Needham, 82 S.W.3d 314 (Tex. 2002)

WHISTLEBLOWER COMPLAINTS

An employee who alleges a violation of whistleblower protection may sue the School for injunctive relief, actual damages, court costs, and attorney's fees, as well as other relief specified in Government Code 554.003. 

Initiate Grievance

Before suing, an employee must initiate action under the School’s grievance policy or other applicable policies concerning suspension or termination of employment or adverse personnel action. The employee must invoke the School’s grievance procedure not later than the 90th day after the date on which the alleged suspension, termination, or other adverse employment action occurred or was discovered by the employee through reasonable diligence. 

Legal Action

If the TSBVI Board of Trustees does not render a final decision before the 61st day after grievance procedures are initiated, the employee may elect to:

  1. Exhaust the School's grievance procedures, in which case the employee must sue not later than the 30th day after the date those procedures are exhausted to obtain relief under Government Code Chapter 554; or
  2. Terminate School grievance procedures and sue within the time lines established by Government Code 554.005 and 554.006. Gov't Code 554.005, 554.006 [See DGBA regarding grievance procedures]

Burden of Proof

If the employee brings a lawsuit, the employee has the burden of proof unless the suspension, termination, or adverse personnel action occurred within 90 days after the employee reported a violation of law, in which case the suspension, termination, or adverse personnel action is presumed, subject to rebuttal, to be because the employee made the report.

Affirmative Defense

It is an affirmative defense to a whistleblower suit that TSBVI would have taken the action against the employee that forms the basis of the suit based solely on information, observation, or evidence that is not related to the fact that the employee made a report protected under the whistleblower law.

Gov’t Code 554.004

Notice of Rights

The TSBVI Board of Trustees shall inform its employees of their rights regarding whistleblower protection by posting a sign in a prominent location in the workplace. The design and content of the sign shall be as prescribed by the attorney general.  Gov’t Code 554.009

RIGHT TO REPORT A CRIME

A TSBVI employee may report a crime witnessed at the school to any peace officer with authority to investigate the crime. TSBVI may not adopt a policy requiring a school employee to refrain from reporting a crime witnessed at the school or to report a crime witnessed at the school only to certain persons or peace officers. Education Code 37.148

PROTECTION FROM DISCIPLINARY PROCEEDINGS

For purposes of the following provisions, “disciplinary proceeding” means discharge or suspension of a professional employee, or termination or nonrenewal of a professional employee’s term contract. [See DGC regarding immunity] Education Code 22.0512(b)

INSTRUCTIONAL MATERIALS AND TECHNOLOGICAL EQUIPMENT

The TSBVI Board of Trustees may not require an employee who acts in good faith to pay for a textbook, electronic textbook, or technological equipment that is damaged, stolen, misplaced, or not returned. An employee may not waive this provision by contract or any other means.

Exception

TSBVI may enter into a written agreement with an employee whereby the employee assumes financial responsibility for electronic instructional material or technological equipment usage off school property or outside of a school-sponsored event in consideration for the ability of the employee to use the electronic instructional material or technological equipment for personal business.

The written agreement shall be separate from the employee’s contract of employment, if applicable, and shall clearly inform the employee of the amount of the financial responsibility and advise the employee to consider obtaining appropriate insurance. An employee may not be required to enter into such an agreement as a condition of employment.

Education Code 31.104(e); 19 TAC 66.107(c), .1319(d)

Breaks for Nursing Mothers—Nonexempt Employees

TSBVI provides nonexempt employees a reasonable break to express breast milk, each time an employee needs to express breast milk for her nursing child, for one year after the child’s birth. TSBVI shall provide a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.

TSBVI is not required to compensate the employee receiving reasonable break time for any work time spent for such purpose.

29 U.S.C. 207(r)

Right to Express Breast Milk

A TSBVI employee is entitled to express breast milk at the employee's workplace. Gov’t Code 619.002

TSBVI supports the practice of expressing breast milk and makes reasonable accommodations for the needs of employees who express breast milk.

TSBVI shall provide a reasonable amount of break time for an employee to express breast milk each time the employee has need to express the milk. TSBVI shall provide a place, other than a multiple user bathroom, that is shielded from view and free from intrusion from other employees and the public where the employee can express breast milk.

TSBVI may not suspend or terminate the employment of, or otherwise discriminate against, an employee because the employee has asserted the employee's rights under Government Code Chapter 619. Government Code Chapter 619 does not create a private or state cause of action against the School.

Government Code Ch. 619

Charitable Contributions

The TSBVI Board or a TSBVI employee may not directly or indirectly require or coerce any TSBVI employee to:

  1. Make a contribution to a charitable organization or in response to a fund-raiser; or
  2. Attend a meeting called for the purpose of soliciting charitable contributions.

The TSBVI Board or TSBVI employee may not directly or indirectly require or coerce any TSBVI employee to refrain from the same acts.

Education Code 22.011

PROTECTION OF NURSES

The School may not suspend, terminate, or otherwise discipline or discriminate against a nurse who refuses to engage in an act or omission relating to patient care that:

  1. Would constitute grounds for reporting the nurse to the Board of Nurse Examiners under Occupations Code Chapter 301, Subchapter I;
  2. Constitutes a minor incident, as defined at Occupations Code Section 301.419; or
  3. Would violate Occupations Code Chapter 301 or a rule of the Board of Nurse Examiners, if the nurse notifies the district at the time of the refusal that this is the reason for refusing to engage in the act or omission.

Occupations Code 301.352(a)

 

Adopted: 1/11/80

Amended: 11/11/83, 1/26/90, 3/25/94, 11/18/94, 11/17/95, 5/28/03, 5/25/05, 11/16/07, 1/26/18

Reviewed: 3/30/99

POLITICAL PARTICIPATION

The Board, or any School employee, may not directly, or indirectly, require, or coerce, any teacher to refrain from participating in political affairs in his, or her, community, state, or nation.

Education Code 21.407(b)

ASSOCIATION MEMBERSHIP

The Board, or any School employee, may not directly, or indirectly, require, or coerce, any teacher to join any group, club, committee, organization, or association.

Education Code Chapter 21 does not abridge the right of an educator to join or refuse to join any professional association or organization.

Education Code 21.407(a), 21.408

LABOR ORGANIZATIONS

An individual may not be denied employment by the School because of the individual's membership or nonmembership in a labor organization.

Gov't Code 617.004

"Labor organization" means any organization in which employees participate that exists, in whole, or in part, to deal with one or more employers concerning grievances, labor disputes, wages, hours of employment, or working conditions.

Gov't Code 617.001

COLLECTIVE BARGAINING PROHIBITED

The Board may not enter into a collective bargaining contract with a labor organization regarding wages, hours, or conditions of employment of School employees; nor shall it recognize a labor organization as the bargaining agent for a group of employees.

Gov't Code 617.002

STRIKES PROHIBITED

School employees may not strike or engage in an organized work stoppage against the School. However, the right of an individual to cease work shall not be abridged if the individual is not acting in concert with others in an organized work stoppage.

Gov't Code 617.003(a), (c)

 

PENALTIES

Any employee who participates in a strike or organized work stoppage shall forfeit all reemployment rights and any other rights, benefits, or privileges he or she enjoys as a result of public employment or former public employment.

Gov't Code 617.003(b)

Adopted: 1/11/80

Amended: 6/29/84, 9/27/90, 3/25/94, 11/17/95, 5/28/03

Reviewed: 3/30/99

PRIVILEGES TO EMPLOYEE ORGANIZATIONS

TSBVI may distinguish among associations on the basis of proportionate membership if it ensures that any distinguishing policies and customs are reasonable and not coercive.

San Antonio Federation of Teachers v. San Antonio ISD, Comm. of Ed. Dec. 77-R105 (1980)

Adopted: 5/8/81

Amended: 6/29/84, 1/26/89, 3/25/94, 11/17/95, 5/28/03

Reviewed: 3/30/99

PURPOSE OF POLICY

The purpose of this policy is to provide employees an orderly process for the prompt and equitable resolution of complaints.  The Board intends that, whenever feasible, complaints be resolved at the lowest possible administrative level.  Informal resolution and mediation shall be encouraged but shall not extend any deadlines in this policy without mutual written consent.

EMPLOYMENT POLICY

TSBVI’s employment policy provides each employee with the right to present grievances individually or collectively concerning wages, hours of employment, or conditions of work to supervisors and the Board in accordance with the procedures of this and related policies.  Employees shall not communicate with a Board member on issues pending a hearing or an appeal related to the employee.

This policy may not restrict the ability of an employee to communicate directly with a member of the Board regarding a matter that is not a complaint or grievance.

This policy shall govern all issues or complaints not otherwise covered by any other specific policies or laws.  Educ. Code 11.1513.

OTHER REVIEW PROCESSES

Some topics are governed by other review processes which may offer alternative options as follows:

  1. Procedures and information regarding sexual harassment and other illegal discrimination (based on sex, race, color, religion, national origin, age or disability and retaliation) by other employees are found at DIA and information regarding federal nondiscrimination is found at DAA.
  2. An employee's dismissal or nonrenewal may be the subject of a grievance under this policy only if the School does not otherwise provide for a review of the matter.
  3. Grievances regarding suspension without pay of a contractual employee are governed under the DF series.
  4. Grievances regarding termination of an employment contract governed by Chapter 21 of the Education Code are governed under the DF series.
  5. Grievances regarding instructional materials are governed by Board Policy EF.

DEFINITIONS

Complaint or Grievance

A grievance is a step by step process that an employee must follow to get his or her complaint addressed. In this process the formal complaint moves from one level of authority to progressively higher levels. (See Level One, Two, and Three in this policy)

The terms "complaint" and "grievance" shall have the same meaning, and within this policy may be used interchangeably.  A complaint or grievance under this policy may include, but shall not be limited to, any of the following:

  1. Grievances concerning an employee's wages, hours, or conditions of work, or the termination or discipline of any employee except that the term “grievance” does not include a proposed or actual termination of an employee under contract.
  2. Specific allegations of unlawful discrimination in employment on the basis of sex (including allegations of sexual harassment), race, religion, national origin, age, or disability.
  3. Specific allegations of unlawful discrimination or retaliation on the basis of the employee's exercise of constitutional rights.
  4. Whistleblower complaints.

Grievant

The employee, employees, or organization filing a grievance.

Respondent

The person or persons against whom a grievance may be, or has been brought.

Termination

Termination is a complete severance of the employment relationship between employer and employee.

Demotion

For contract employees, demotion is a voluntary or involuntary assignment to a lower pay grade.

For classified employees, demotion is a change from one classification to another classification title in a salary group with a lower minimum salary rate.

Discipline

Any negative action imposed upon an employee for violation of directives or School rules, policies, or regulations.

Representative

At all levels of the grievance process, the employees(s) filing the grievance may be represented at the employee’s own expense by a fellow employee, attorney, or person or organization that does not claim the right to strike.

Response

At Levels One, Two, and Three, “response” shall mean a written communication to the employee from the appropriate administrator.   Responses may be hand-delivered, sent by electronic communication to the employee’s e-mail address of record, or sent by U.S. Mail to the employee’s mailing address of record. Mailed responses shall be timely if they are postmarked by U.S. Mail on or before the deadline.

Days

The definition of "day" means calendar day unless otherwise defined in law or Board policy.

In computing any period of time prescribed or allowed by this policy, the day of the aggrieved act, event, or default after which the designated period of time begins to run is not to be included.  The last day of the period is to be included, unless it is a Saturday, Sunday, or legal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday or legal holiday.  Saturdays,

Sundays and legal holidays shall not be counted for any purpose in any time period of five days or less in this policy (or applicable law).  The day on which a grievance is filed is not to be counted in calculating the designated period of time.  If a complaint is received by mail, the date of the filing is the date of the postmark. 

Texas Rules of Court, Part I, Rule 4.  

Any extension to the stated timelines in this policy shall be considered on a case by case basis as stated in the Timelines section of this policy.

Immediate Supervisor

The principal, director, administrator, or other line supervisor in the employee’s chain of command who has responsibility for direct supervision of the employee and has the authority to initiate action on the employee.

Board

The term “Board” or “Board of Trustees” shall mean the Governing Board of the Texas School for the Blind and Visually Impaired (TSBVI) or a subcommittee of the Board consisting of at least five members.

Record of Proceedings

An appeal of the Board’s decision to the Commissioner when applicable shall be decided based on a review of the record developed at the Board hearing.  “Record” includes, at a minimum, an audible electronic recording or written transcript of all oral testimony or argument.  Education Code 7.057(c), (f)

It is the School’s responsibility to make and preserve the evidence and record of the proceedings before the Board.  If the School fails to create and preserve the record without good cause, all substantial evidence issues that require missing portions of the record for resolution shall be deemed against the School.  The record shall include:

  1. a tape recording or a transcript of the hearing at the local level.  If a tape recording is used, the tape recording must be complete, audible, and clear; and each speaker must be clearly identified.
  2. All evidence admitted;
  3. All offers of proof;
  4. All written pleadings, motions, and intermediate rulings;
  5. A description of matters officially noticed;
  6. If applicable, the decision of the hearing examiner;
  7. A tape recording or transcript of the oral argument before the Board; and
  8. The decision of the Board.

19 TAC 157.1073(d)

NOTIFICATION FOR EMPLOYEES

The Director of Human Resources shall be responsible for informing all employees of TSBVI's employee complaints and grievances policies and for responding to any employee questions or inquiries about the policies.

Employees shall be provided with a copy of this policy and instructed in proper procedures for filing complaints and grievances during new employee orientation.  Grievances and complaints may be subject to public disclosure pursuant to the Public Information Act or the Freedom of Information Act.

Gov’t Code; 552, 5 U.S.C. Sec 552

TIMELINES

The amount of time for filing and decision making under this policy is intended to provide for a prompt, yet thorough, review and resolution of grievances.  Parties must adhere to this timeline in order to ensure the benefits of participating in this process.  However, should the Director of Human Resources determine that special circumstances or the nature of the grievance are such that additional time will allow for a more meaningful, well-supported resolution of the matter, then the Director may grant an extension of a specific amount of time.  The Director shall deliver written notice of the extension of time to all parties and the Superintendent.

If the grieving employee does not submit a written request to move the grievance forward within the specified time period and is not granted an extension prior to the passing of that deadline, it will be assumed the employee is satisfied and the grievance will be discontinued.

If the immediate supervisor or the next-level supervisor fails to deliver a written response or decision within the specified time period and is not granted an extension of time prior to the passing of that deadline, the grievance will automatically advance to the next level of review.

The Director of Human Resources shall record and maintain the timeline associated with each grievance.

Untimely Filings

All time limits shall be strictly followed unless modified by mutual written consent.

If a complaint form or appeal notice is not timely filed, the complaint may be dismissed, on written notice to the employee, at any point during the complaint process. The employee 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.

Audio Recording

The employee shall be permitted to make an audio recording of a conference or hearing under this policy at which the substance of the employee’s complaint is discussed.  The employee shall notify all attendees present that an audio recording is taking place.  The School is not required to provide equipment for the employee to make the recording.  Education Code 11.171(b)

If an audio recording is made by the employee of the administrator or supervisor hearing the grievance, a copy of the recording shall be maintained with the Level One, Level Two, and Level Three records.

GENERAL PROVISIONS:

Right to Representation

  1. A School employee, or a group of employees, may be represented in a grievance presentation at any level through an attorney, or through any other person, or organization that does not claim the right to strike.
  2. The supervisor, Superintendent, or Board hearing the complaint at any level may be assisted by the Human Resources Director, School Attorney or other member of the administration.
  3. Each party shall pay for its own costs related to the grievance process.
  4. TSBVI cannot deny an employee’s representative, including an attorney, the right to represent the employee at any stage of the grievance procedure, so long as the employee designates the representative and the representative does not claim the right to strike.  Lubbock Prof’l Firefighters v. City of Lubbock, 742 S.W.2d 413 (Tex. App.—Amarillo 1987, writ ref’d n.r.e.); Sayre v. Mullins, 681 S.W.2d 25 (Tex. 1984).
  5. TSBVI should meet with employees or their designated representatives at reasonable times and places to hear grievances concerning wages, hours of work, and conditions of work.  The right to present grievances is satisfied if employees have access to those in a position of authority to air their grievances.  However, that authority is under no legal compulsion to take action to rectify the matter.  Atty. Gen. Op. H-422 (1974); Corpus Christi Indep. Sch. Dist. v. Padilla, 709 S.W.2d 700 (Tex. App.—Corpus Christi, 1986, no writ)
  6. Telephone Representative:  TSBVI’s grievance policy provides for representation and  permits an employee’s representative to represent the employee through a telephone conference call at any formal grievance proceeding, hearing, or conference at which the employee is entitled to representation according to the policy.  This provision applies to grievances under Education Code 11.171(a).
  7. Scheduling Conferences: TSBVI shall make reasonable attempts to schedule conferences at a mutually agreeable time. If the employee fails to appear at a scheduled conference, TSBVI may hold the conference and issue a decision in the employee’s absence.

Education Code 11.171(a), (c)

Freedom from Retaliation

No retaliation of any kind shall be taken at any level against any employee for filing a grievance or participating as a witness or representative in the processing of a grievance under this policy. Retaliation means instigating, implementing or condoning adverse treatment of a person because he/she:

  1. reports a violation (whether perceived or actual) of state or federal laws, rule or regulation, or school policy regarding discrimination or any form of harassment;
  2. provides information related to such violation (e.g., complaint of discrimination or harassment); or
  3. assists or participates in an investigation of such violation.

Grievances shall not be referred to in an employee’s personnel file unless so requested by the employee or ordered by the hearing officer if necessary for the execution of the decision.

Whistleblower Complaints

Employees who allege adverse employment action in retaliation for reporting a violation of law to an appropriate authority shall first initiate a complaint under policy DG within the time specified by law and may be made directly to the Superintendent or designee beginning at level 3. Timelines under policy may be shortened to allow the Board to make a final decision within 60 calendar days from initiation of complaint.  In all such cases, if there is a conflict between federal and/or state case and/or statutory law and this policy, federal case and/or statutory law, followed by state case and/or statutory law, shall take precedence over this policy, in the order named.  Gov’t Code 554.006

Complaints Against Supervisors About Violation of Law

This policy permits an employee to report a grievance against a supervisor to a different supervisor if the employee alleges that the supervisor violated the law in the workplace or unlawfully harassed the employee, or retaliated.

Complaints alleging a supervisor’s violation of law may be made to the Superintendent beginning at Level II.  A complaint alleging a violation of law by the Superintendent may be made directly to the Board beginning at Level III.

Complaints Against Other Employees

With rare exceptions, most employee complaints about other employees must be addressed as a supervisory issue and not the grievance process.

Requests for exceptions should be addressed to the Superintendent and will be decided by the Superintendent on a case-by-case basis.

Complaints of sexual harassment (regardless of whether against a supervisor or against another employee) will always be handled by this grievance process and do not require exception approval by the Superintendent.

Costs Incurred

Each party shall pay its own costs incurred in the course of the complaint.

Complaint and Appeal Forms

Complaints and appeals under this policy shall be submitted in writing on a form provided by the School.

Copies of any documents that support the complaint should be attached to the complaint form. If the employee does not have copies of these documents, they may be presented at the Level One conference. After the Level One conference, no new documents may be submitted by the employee or the administration unless the employee or the administration did not know the documents existed before the Level One conference.

A complaint or appeal form that is incomplete in any material aspect may be dismissed but may be refiled with all the required information if the refiling is within the designated time for filing.

Consolidating Grievances

All grievances arising out of an event, or related series of events, must be addressed in one grievance. An employee is precluded from bringing separate or serial grievances concerning events about which the employee has previously complained.  When the Superintendent determines that two, or more, individual grievances are sufficiently similar in nature and remedy to permit their resolution through one proceeding, he/she may consolidate the grievances.

 PROCEDURAL RULES

Filing Grievances

An employee having a complaint shall initiate the complaint process with the Human Resources Director within ten days of the time the employee first knew, or should have known, of the event, or series of events, causing the complaint. The Human Resources Director shall explain to the employee the process of bringing the complaint as follows:

INFORMAL PROBLEM SOLVING CONFERENCE

Prior to the time the employee files a Level One Complaint, the employee and the supervisor(s) shall attempt to resolve the problem informally (here titled the "informal problem solving conference").

Within five days of initiating the complaint process with the Human Resources Director, the employee shall contact the employee's direct supervisor and request a conference to attempt to resolve the complaint orally with the supervisor.  The supervisor must schedule the conference to occur within five days of the employee’s request for an informal problem solving conference.

The supervisor to whom the employee brings the complaint shall summarize both the employee's complaint and the supervisor's determination in writing and present it to the employee within ten days of the conference, subject to the exception below (see TIMELINES).

If the complaint is a complaint of sexual harassment, the employee may seek resolution either with the Human Resources Director, School Division Director, Principal, or the Superintendent.   The Human Resources Director may direct the employee to the appropriate supervisor or administrator to bring the complaint.

A grievant may withdraw his/her grievance at any time along the process.

FORMAL GRIEVANCE

Level One: Immediate Supervisor and/or Higher Level Administrators

If the employee is not satisfied with the results of the informal problem solving conference, a written

grievance may be filed with the Director of Human Resources

within ten days from the time the supervisor notifies the employee in writing of the summary/outcome of the informal problem solving conference.

The written grievance must contain all of the information requested in the grievance form Exhibit A: Employee Complaint Form-Level One (Policy DGBA-E.).  The written grievance must include the administrator’s written response from the informal problem solving conference.

Any grievance that is incomplete when filed shall be returned to the grievant who shall then have five days to refile the grievance.  If the grievance is refiled without containing all necessary information, or is incomplete in any material manner, it may be dismissed.

The Human Resources Director, with input from the administration, will designate the supervisor to hear the complaint at this level based on the nature of the complaint and any other relevant factors. The Human Resources Director will notify the designated supervisor of the complaint and provide the supervisor with a copy of the grievant’s Level One Complaint Form.

The designated supervisor will conduct a conference with the grievant within five days of receiving the Level One Complaint Form. At the grievance Level I conference, the supervisor shall discuss the grievance with the grievant(s), the grievant(s) representative, if any, take any evidence, either documentary, oral, or both, and respond in writing within ten days after the meeting.

The respondent shall deliver a copy of the written response by completing the Response to Level One Complaint Exhibit B (Policy DGBA-E) to the grievant in person or by certified mail or return receipt requested. Copies will also be provided to the grievant’s representative and to the Director of Human Resources.

Level Two:  Appeal to a Principal or Division Director

If the employee is not satisfied with the response to the Level One Complaint, the employee may appeal the outcome to the employee's Principal or Division Director in accordance with the Level One grievance procedure.  The Director of Human Resources shall inform the grievant as to which supervisor the grievant may appeal. The same time lines as those for the Level One Complaint shall apply. This appeal must be completed on Exhibit C Level Two Appeal Notice (Policy DGBA-E.). 

The Principal or Division Director must respond to the grievant in writing, completing the Response to Level Two Appeal (Exhibit D, Policy DGBA-E) within ten days after the meeting.

Level Three: Appeal to Superintendent [or Designee]

If the decision of the Level Two respondent does not satisfy the grievant, the grievant may file a written notice of appeal with the Director of Human Resources within ten days of the date upon which the Level Two decision was delivered to the employee, officially requesting a Level Three hearing with the Superintendent.  This appeal must be completed on Exhibit E Level Three Appeal Notice (Policy DGBA-E.).  Upon receipt of the appeal, the HR Director shall notify the Superintendent.

The Superintendent may designate another administrator at the second tier of the School’s administration to address the grievance if the exigencies of the Superintendent’s duties or other compelling reasons prevent the Superintendent from addressing the grievance.

The Director of Human Resources shall provide to the Superintendent (or designee) the written complaint, any supporting records, and the completed Level Two Response Form (Exhibit D Policy DGBA-E).

The Superintendent or designee shall conduct a meeting with the grievant within five days to hear the grievant’s appeal.  The Superintendent may, but is not required to, take testimony and accept evidence supporting the grievant or the Level One supervisor’s decision(s).

The Superintendent or designee must respond to the grievant in writing, completing the Response to Level Three Appeal (Exhibit F, Policy DGBA-E) within ten days after the meeting.

The Superintendent or designee shall deliver a copy of the response to the grievant by either hand, e-mail, or certified mail, return receipt requested. Copies shall also be provided to the grievant’s representative and to the Human Resources Director.

Level Four: Appeal to the Board

If the outcome with the Superintendent is not to the employee's satisfaction, the employee may appeal the decision of the Superintendent to the Board by providing the Superintendent with written notification of the intent to appeal to the Board, completing Level Four Appeal Notice, (Exhibit G, Policy DGBA-E).  The grieving employee must file this notice of appeal to the Superintendent within fifteen calendar days of receiving the Superintendent’s response.

Upon receipt of such written notification, the Superintendent, in consultation with the Board President, shall place the employee’s complaint on the agenda of the next regularly scheduled Board meeting for which the deadline for submission of the agenda to the Texas Register in accordance with the requirements of the Texas Open Meetings Act has not passed, in which case the matter shall be placed on the following regularly scheduled meeting.

The Superintendent shall inform the employee of the date, time, and place of the Board meeting.

Procedures for appeals to the Board as described in this policy shall be provided to the grievant by the Superintendent’s office upon request.

The Board shall electronically record any open or closed session of the grievance hearing. Presentations shall be limited to twenty minutes per side unless extended by the Board President.

At the regularly scheduled meeting, the Board shall listen to the complaint, but is not required to respond or take any action on the matter.

If the complaint involves the appointment, employment, evaluation, reassignment, duties, discipline, or dismissal of the employee bringing the complaint, it shall be heard by the Board in closed meeting,

unless the employee bringing the complaint requests it to be heard in public. However, if the complaint constitutes a complaint or charge against another TSBVI employee, it shall be heard in closed meeting

unless an open hearing is requested in writing by the employee against whom the complaint or charge is brought.

The Board may determine that additional information is needed to arrive at a decision. The Board will inform the grievant and the Superintendent as to the information needed, and postpone a decision to the next scheduled or specially called session of the Board. The Board may at its own discretion postpone a decision to a later date.

A decision by the Board to take no action upholds the administrative decision of the Superintendent.  Announcing the Board’s decision in the employee's presence constitutes communicating the decision.

If the Board does make a decision, the Board may, at its own discretion, issue a written response at a later date.

There will be no further appeal or re-hearing within the grievance process of the Texas School for the Blind and Visually Impaired.

APPEAL TO THE COMMISSIONER

A person may appeal the decision of the Board to the Commissioner of Education if the person is aggrieved by an action or decision of the Board that violates the school laws of Texas or violates a provision of a written employment contract between the School and the School employee, if such violation causes or would cause monetary harm to the employee. Educ. Code 7.057

MEDIATION ALTERNATIVE

As an alternative to the process presented above, an employee complaint may be addressed through voluntary mediation under the following conditions:

  1. All parties to the complaint must agree to participate in the mediation.
  2. The mediation will be conducted by a neutral individual who has completed training in mediation as an alternative dispute resolution technique.
  3. Costs associated with alternative mediation will be paid by the School.
  4. Any party to the complaint who is not satisfied with the mediation process or outcome may return to the grievance process described above.
  5. The Superintendent shall have the right to participate in or review any agreements reached in mediation before they are considered final.

LEGAL REFERENCES

United States Constitution

The School shall take no action abridging the freedom of speech or the right of the people to petition the Board for redress of grievances.  U.S. Const. Amend. I, XIV

The Board may confine its meetings to specified subject matter and may hold nonpublic sessions to transact business.  But when the Board sits in public meetings to conduct public business and hear the views of citizens, it may not discriminate between speakers on the basis of the content of their speech or the message conveyed.  Rosenberger v. Rector & Visitors of Univ. of Virginia, 515 U.S. 819, 828 (1995); City 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)  [See DG]

Texas Constitution

Employees 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 purposes, by petition, address, or remonstrance.  Tex. Const. Art. I, Sec. 27

There is no requirement that the Board negotiate or even respond to complaints.  However, the Board must stop, look, and listen and must consider the petition, address, or remonstrance.  Prof’l Ass’n of College Educators v. El Paso County Cmty. [College] District, 678 S.W.2d 94 (Tex. App.—El Paso 1984, writ ref’d n.r.e.)

Federal Laws

Section 504

Because TSBVI receives federal financial assistance, directly or indirectly, and employs 15 or more persons, the School’s grievance procedures incorporate appropriate due process standards that provide for the prompt and equitable resolution of complaints alleging any action prohibited by Section 504 of the Rehabilitation Act of 1973.  34 C.F.R. 104.7(b), .11

Americans with Disabilities Act

Because TSBVI employs 50 or more persons, the School adopted and published 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 C.F.R. 35.107, .140

Title IX

Because TSBVI receives federal financial assistance, , the School  adopted and published grievance procedures providing for prompt and equitable resolution of employee complaints alleging any action prohibited by Title IX of the Education Amendments of 1972.  34 C.F.R. 106.8(b); North Haven Bd. of Educ. v. Bell, 456 U.S. 512 (1982)

STATE LAWS

Wages, Hours, Conditions of Work

The prohibition against collective bargaining and strikes [see DGA] does not impair the right of employees to present grievances concerning their wages, hours of employment, or conditions of work, either individually, collectively, or through a representative that does not claim the right to strike.  Gov’t Code 617.005 Lubbock Prof’l Firefighters v. City of Lubbock, 742 S.W.2d 413 (Tex. App.—Amarillo 1987, writ ref’d n.r.e.)  The term “conditions of work” should be construed broadly to include any area of wages, hours or conditions of employment, and any other matter that is appropriate for communications from employees to employer concerning an aspect of their relationship.  Atty. Gen. Op. JM-177 (1984); Corpus Christi Fed. of Teachers v. Corpus Christi Indep. Sch. Dist., 572 S.W.2d 663 (Tex. 1978)

FINALITY OF GRADES

An examination or course grade issued by a classroom teacher is final and may not be changed unless the grade is arbitrary, erroneous, or not consistent with the School’s grading policy applicable to the grade, as determined by the board. 

A board’s determination regarding classroom grades is not subject to appeal.  Education Code 28.0214

APPRAISALS

Employees may present grievances regarding the appraisal process and shall receive a written response. The Board has the authority to review the educational judgment of an appraiser regarding denial of credit and may award credit if the appraiser's educational judgment was clearly erroneous, or an abuse of discretion.  Navarro v. Ysleta ISD, Comm. of Ed. Dec. 007-R-8-988 (1994) (violation of procedural rules, faulty data used, or flawed observation reports timely rebutted by teacher); 19 TAC 149

COMPLAINTS RELATED TO VETERAN’S EMPLOYMENT PREFERENCE

Appeal of Decision Related to Hiring or Reduction in Force

An individual entitled to a veteran's employment preference under Government Code Chapter 657 who is aggrieved by a decision of the School relating to hiring the individual, or relating to retaining the individual if the School reduces its workforce, may appeal the decision by filing a written complaint with the TSBVI Board of Trustees. 

Response to Complaint

When the TSBVI Board of Trustees receives a written complaint pursuant to the paragraph above, the Board shall respond to the complaint not later than the 15th business day after the Board receives the complaint.  The President of the Board may appoint a subcommittee of the Board, consisting of five or more Board members, to consider the written complaint and respond.  The Board may render a different hiring decision than the decision that is the subject of the complaint if the Board determines that the veteran's preference was not applied.  Government Code 657.010(a),(b)

Adopted:         4/20/83

Amended:       9/9/83, 2/14/86, 9/26/86, 1/14/88, 9/15/88, 11/30/90, 9/27/91, 5/28/92, 1/29/93, 3/25/94, 11/18/94, 5/26/95, 8/1/97, 1/24/02, 5/28/03, 5/25/04, 11/16/07, 10/3/14, 11/21/14, 8/9/18

Reviewed: