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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:      

Download the forms

The forms on the following pages are provided to assist the School in processing employee grievances.

Exhibit A:         Employee Grievance Form — Level One

Exhibit B:         Response to Level One Grievance

Exhibit C:         Level Two Appeal Notice

Exhibit D:         Response to Level Two Appeal

Exhibit E:         Level Three Appeal Notice

Exhibit F:         Response to Level Three Appeal

Exhibit G:        Level Four Appeal Notice

PUBLIC SERVANTS

All School employees are "public servants" and therefore subject to Title VIII of the Penal Code, regarding offenses against public administration, including bribery and corrupt influence (Chapter 36), perjury and other falsification (Chapter 37), obstructing governmental operation (Chapter 38), and abuse of office (Chapter 39).  Penal Code 1.07(41), Title VIII  [See DBD and BBFA]

Educator ethics

Educators shall comply with standard practices and ethical conduct toward students, professional colleagues, school officials, parents, and members of the community and shall safeguard academic freedom.

The State Board for Educator Certification (SBEC) shall provide for the adoption, amendment, and enforcement of an educator’s code of ethics [see DH (EXHIBIT)].  SBEC is solely responsible for enforcing the ethics code for purposes related to certification disciplinary proceedings.

Education Code 21.041(b)(8); 19 TAC 247.1(b), (c)

electronic communication policy

“Electronic communication” means any communication facilitated by the use of any electronic device, including a telephone, cellular telephone, computer, computer network, personal data assistant, or pager.  The term includes e-mails, text messages, instant messages, and any communications made through a website, including a social media website or a social networking website.

TSBVI shall adopt a written policy concerning electronic communications between a school employee and a student enrolled in the School.

The policy adopted under this section must:

  1. Include provisions designed to prevent improper electronic communications between a school employee and a student;
  2. Allow a school employee to elect to not disclose to students the employee’s personal telephone number or e-mail address; and
  3. Include provisions instructing a school employee about the proper method for notifying appropriate local administrators about an incident in which a student engages in improper communications with the school employee.

Education Code 38.027

DRUG ABUSE PREVENTION

In compliance with Workers' Compensation Commission rules, the School shall provide a written copy of the local drug abuse policy to each employee:

  1. On or before the first day of employment; or
  2. Within 30 days after the date the local policy is adopted by the Board.

28 TAC 169.1(b)

TOBACCO USE and e-cigarettes PROHIBITED

The Board shall prohibit smoking, using tobacco products, or using e-cigarettes at a School-related or School-sanctioned activity on or off School property.

Enforcement

The Board shall ensure that School personnel enforce the policies at a School-related or School-sanctioned event on or off School property.

Education Code 38.006(1)(3) [See also FNCD and GKA]

IMMUNITY FROM INDIVIDUAL LIABILITY

The statutory immunity detailed below is in addition to and does not preempt the common law doctrine of official and governmental immunity.

Education Code 22.051(b)

“Professional Employees”

A professional school employee district is not personally liable for any act that is incident to or within the scope of the duties of the employee's position of employment and that involves the exercise of judgment or discretion, except in circumstances where, in disciplining a student, the employee uses excessive force or his or her negligence results in bodily injury to the student.

"Professional school employee " includes a superintendent; principal; teacher, including a substitute teacher or a teacher employed by a company that contracts with TSBVI to provide the teacher's services to the School; a supervisor; social worker; counselor; nurse; teacher's aide; a student in an education preparation program participating in a field experience or internship; a DPS-certified school bus driver, and any other person whose employment requires certification and the exercise of discretion.

TSBVI Employees

In addition to any other federal and state statutes limiting the liability of employees at the School, Sections 22.0511, 22.0512, 22.052, and 22.053, respectively, apply to professional employees and volunteers of the school.

Education Code 30.024(c)

Motor Vehicle Exception

Education Code Section 22.0511 does not apply to the operation, use, or maintenance of any motor vehicle.

Education Code 22.0511(a)-(b), 22.051; Hopkins v. Spring ISD, 756 S.W.2d 617 (Tex. 1987); Barr v. Bernhard, 562 S.W.2d 844 (Tex. 1978)

“Individuals”

In addition to the immunity described above [at Professional Employees], and under other provisions of state law, an individual is entitled to any immunity and any other protections afforded under the Paul D. Coverdell Teacher Protection Act of 2001 (20 U.S.C. Section 6731 et seq.), as amended. [See TEACHERS, below] Nothing in Education Code 22.0511(c) shall be construed to limit or abridge any immunity or protection afforded an individual under state law.  Education Code 22.0511(c)

“Teachers” (The Paul T. Coverdell Teacher Protection Act of 2001)

Except as provided in 20 U.S.C. Section 6736(b), no "teacher" in a school shall be liable for harm caused by an act or omission of the teacher on behalf of the school if:

  1. The teacher was acting within the scope of the teacher's employment or responsibilities to a school or governmental entity;
  2. The actions of the teacher were carried out in conformity with federal, state, and local laws (including rules and regulations) in furtherance of efforts to control, discipline, expel, or suspend a student or maintain order or control in the classroom or school;
  3. If appropriate or required, the teacher was properly licensed, certified, or authorized by the appropriate authorities for the activities or practice involved in the state in which the harm occurred, where the activities were or practice was undertaken within the scope of the teacher's responsibilities;
  4. The harm was not caused by willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious, flagrant indifference to the rights or safety of the individual harmed by the teacher; and
  5. The harm was not caused by the teacher operating a motor vehicle, vessel, aircraft, or other vehicle for which the state requires the operator or the owner of the vehicle, craft, or vessel to:
    1. Possess an operator's license; or
    2. Maintain insurance.

"Teacher" means:

  1. A teacher, instructor, principal, or administrator;
  2. Another educational professional who works in a school;
  3. An individual member of a school board (as distinct from the board); or
  4. A professional or nonprofessional employee who works in a school, and:
    1. In the employee's job, maintains discipline or ensures safety; or
    2. In an emergency, is called on to maintain discipline or ensure safety.

20 U.S.C. Section 6733, 6736(a)

DRUG AND ALCOHOL ABUSE PROGRAM

A board shall prohibit the use of alcoholic beverages at school related or school-sanctioned activities on or off school property.  Education Code 38.007(a)

Federal Drug-Free Workplace Act

The School receives federal grants and must agree to provide a drug-free workplace by:

  1. Publishing a statement notifying employees that the unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance is prohibited in the School’s workplace and specifying the actions that will be taken against employees for violations of the prohibition;
  2. Establishing a drug-free awareness program to inform employees about:
    1. The dangers of drug abuse in the workplace;
    2. TSBVI’s policy of maintaining a drug-free workplace;
    3. Available drug counseling, rehabilitation, and employee assistance programs; and
    4. The penalties that may be imposed on employees for drug abuse violations;
  3. Making it a requirement that each employee to be engaged in the performance of the grant be given a copy of the required statement;
  4. Notifying the employee in the required statement that as a condition of employment in the grant the employee will:
    1. Abide by the terms of the statement; and
    2. Notify the School of any criminal drug statute conviction for a violation occurring in the workplace no later than 5 days after the conviction;
  5. Notifying the granting agency within 10 days after receiving notice from an employee or otherwise receiving actual notice of a conviction;
  6. Imposing a sanction on, or requiring the satisfactory participation in a drug abuse assistance or rehabilitation program by, any employee who is convicted, as required by 41 U.S.C. section 81.04; and
  7. Making good faith effort to continue to maintain a drug-free workplace through implementation of the above requirements.

41 U.S.C. 8103(a)(1)

REPORT OF DRUG OFFENSES

A teacher, administrator, or other School employee is not liable in civil damages for reporting to a school administrator or governmental authority, in the exercise of professional judgment within the scope of the teacher's, administrator's, or employee's duties, a student whom the teacher suspects of using, passing, or selling, on school property any of the following substances:

  1. Marijuana or a controlled substance, as defined by the Texas Controlled Substances Act.
  2. A dangerous drug, as defined by the Texas Dangerous Drug Act.
  3. An abusable glue or aerosol paint, as defined by Health and Safety Code Chapter 485, or a volatile chemical, if the substance is used or sold for the purpose of inhaling its fumes or vapors.
  4. An alcoholic beverage, as defined by Section 1.04, Alcoholic Beverage Code.

Education Code 37.016

REPORT TO LOCAL LAW ENFORCEMENT

The Principal or person designated by the Principal is not liable in civil damages for making a good faith report, as required by law [see GRA] to the Austin Police Department when the Principal has reasonable grounds to believe that any of the following activities occur in School, on School property, or at a School-sponsored or School-related activity on or off school property, without regard to whether the activity is investigated by School security officers:

  1. Conduct that may constitute an offense listed in Section 508.149, Government Code; deadly conduct, as described by Penal Code 22.05; or a terroristic threat, as described by Penal Code 22.07.
  2. The use, sale, or possession of a controlled substance, drug paraphernalia, or marijuana, as defined by Chapter 481, Health and Safety Code.
  3. The possession of any of the weapons or devices listed in Penal Code 46.01(1)-(14) or (16) [see FNCG].
  4. Conduct that may constitute a criminal offense under Penal Code 71.02, Engaging in Organized Criminal Activity.
  5. Conduct that may constitute a criminal offense for which a student may be expelled under Section 37.007(a), (d), or (e).

Education Code 37.015

REPORT TO SBEC OF EDUCATOR MISCONDUCT

The Superintendent shall promptly notify in writing the State Board for Educator Certification (SBEC) by filing a report with SBEC not later than the seventh day after the Superintendent first learns about a criminal record or an alleged incident of misconduct, as described at DF, involving a certified educator.

Education Code 21.006; 19 TAC 249.14

DIETARY SUPPLEMENTS

Except as provided at Education Code 38.011(b), a School employee may not:

  1. Knowingly sell, market, or distribute a dietary supplement that contains performance-enhancing compounds to a primary or secondary education student with whom the employee has contact as part of the employee's duties; or
  2. Knowingly endorse or suggest the ingestion, intranasal application, or inhalation of a dietary supplement that contains performance-enhancing compounds by a primary or secondary student with whom the employee has contact as part of the employee's duties.

An employee who violates items 1 or 2, above, commits a Class C misdemeanor offense.

Education Code 38.011

Low-THC Cannabis

The School may not enact, adopt, or enforce a rule, ordinance, order, resolution, or other regulation that prohibits the possession of low-THC cannabis, as authorized by Health and Safety Code Chapter 487.  Health and Safety Code 487.201

Adopted:         3/7/80

Amended:       11/13/81, 9/10/82, 9/9/83, 7/17/87, 11/12/87, 1/26/90, 5/30/91, 1/29/93, 5/26/94, 9/29/95, 1/26/96, 9/24/99, 1/31/03, 3/26/04, 1/28/05, 5/25/05, 1/31/14, 5/31/19

Reviewed:

EDUCATORS’ CODE OF ETHICS

The Texas educator shall comply with standard practices and ethical conduct toward students, professional colleagues, school officials, parents, and members of the community and shall safeguard academic freedom.  The Texas educator, in maintaining the dignity of the profession, shall respect and obey the law, demonstrate personal integrity, and exemplify honesty.  The Texas educator, in exemplifying ethical relations with colleagues, shall extend just and equitable treatment to all members of the profession.  The Texas educator, in accepting a position of public trust, shall measure success by the progress of each student toward realization of his or her potential as an effective citizen.  The Texas educator, in fulfilling responsibilities in the community, shall cooperate with parents and others to improve the public schools of the community.  19 TAC 247.1

  1. Professional Ethical Conduct, Practices, and Performance.

    Standard 1.1 The educator shall not intentionally, knowingly, or recklessly engage in deceptive practices regarding official policies of the school district, educational institution, educator preparation program, the Texas Education Agency, or the State Board for Educator Certification (SBEC) and its certification process.

    Standard 1.2 The educator shall not knowingly misappropriate, divert, or use monies, personnel, property, or equipment committed to his or her charge for personal gain or advantage.

    Standard 1.3 The educator shall not submit fraudulent requests for reimbursement, expenses, or pay.

    Standard 1.4 The educator shall not use institutional or professional privileges for personal or partisan advantage.

    Standard 1.5 The educator shall neither accept nor offer gratuities, gifts, or favors that impair professional judgment or to obtain special advantage. This standard shall not restrict the acceptance of gifts or tokens offered and accepted openly from students, parents, or other persons or organizations in recognition or appreciation of service.

    Standard 1.6 The educator shall not falsify records, or direct or coerce others to do so.

    Standard 1.7 The educator shall comply with state regulations, written local school board policies, and other applicable state and federal laws.

    Standard 1.8 The educator shall apply for, accept, offer, or assign a position or a responsibility on the basis of professional qualifications.

    Standard 1.9 The educator shall not make threats of violence against school district employees, school board members, students, or parents of students.

    Standard 1.10 The educator shall be of good moral character and be worthy to instruct or supervise the youth of this state.

    Standard 1.11 The educator shall not intentionally or knowingly misrepresent his or her employment history, criminal history, and/or disciplinary record when applying for subsequent employment.

    Standard 1.12 The educator shall refrain from the illegal use or distribution of controlled substances and/or abuse of prescription drugs and toxic inhalants.

    Standard 1.13 The educator shall not be under the influence of alcohol or consume alcoholic beverages on school property or during school activities when students are present.

    Standard 1.14 The educator shall not assist another educator, school employee, contractor, or agent in obtaining a new job as an educator or in a school, apart from the routine transmission of administrative and personnel files, if the educator knows or has probable cause to believe that such person engaged in sexual misconduct regarding a minor or student in violation of the law.

  2. Ethical Conduct Toward Professional Colleague

    Standard 2.1 The educator shall not reveal confidential health or personnel information concerning colleagues unless disclosure serves lawful professional purposes or is required by law.

    Standard 2.2 The educator shall not harm others by knowingly making false statements about a colleague or the school system.

    Standard 2.3 The educator shall adhere to written local school board policies and state and federal laws regarding the hiring, evaluation, and dismissal of personnel.

    Standard 2.4 The educator shall not interfere with a colleague’s exercise of political, professional, or citizenship rights and responsibilities.

    Standard 2.5 The educator shall not discriminate against or coerce a colleague on the basis of race, color, religion, national origin, age, gender, disability, family status, or sexual orientation.

    Standard 2.6 The educator shall not use coercive means or promise of special treatment in order to influence professional decisions or colleagues.

    Standard 2.7 The educator shall not retaliate against any individual who has filed a complaint with the SBEC or who provides information for a disciplinary investigation or proceeding under this chapter.

  3. Ethical Conduct Toward Students.

    Standard 3.1 The educator shall not reveal confidential information concerning students unless disclosure serves lawful professional purposes or is required by law.

    Standard 3.2 The educator shall not intentionally, knowingly, or recklessly treat a student or minor in manner that adversely affects or endangers the learning, physical health, mental health, or safety of the student or minor.

    Standard 3.3 The educator shall not intentionally, knowingly, or recklessly misrepresent facts regarding a student.

    Standard 3.4 The educator shall not exclude a student from participation in a program, deny benefits to a student, or grant an advantage to a student on the basis of race, color, gender, disability, religion, national origin, age, sex, disability, family status or sexual orientation.

    Standard 3.5 The educator shall not intentionally, knowingly, or recklessly engage in physical mistreatment, neglect, or abuse of a student or minor.

    Standard 3.6 The educator shall not solicit or engage in sexual conduct or a romantic relationship with a student or minor.

    Standard 3.7 The educator shall not furnish alcohol or illegal/unauthorized drugs to any person under 21 years of age unless the educator is a parent or guardian of that child or knowingly allow any person under 21 years of age unless the educator is a parent or guardian of that child to consume alcohol or illegal/unauthorized drugs in the presence of the educator.

    Standard 3.8 The educator shall maintain appropriate professional educator-student relationships and boundaries based on a reasonably prudent educator standard.

    Standard 3.9 The educator shall refrain from inappropriate communication with a student or minor, including, but not limited to, electronic communication such as cell phone, text messaging, e-mail, instant messaging, blogging, or other social networking communication. Factors may be considered in assessing whether the communication in inappropriate include, but are not limited to:

    1. The nature, purpose, timing, and amount of the communication;
    2. The subject matter of the communication;
    3. Whether the communication was made openly or the educator attempted to conceal the communication;
    4. Whether the communication could be reasonably interpreted as soliciting sexual contact or a romantic relationship;
    5. Whether the communication was sexually explicit; and
    6. Whether the communication involved discussion(s) of the physical or sexual attractiveness or the sexual history, activities, preferences, or fantasies of either the educator or the student.

19 TAC 247.2

Adopted: 3/7/80
Amended: 6/1/89, 3/30/99, 3/26/04, 1/26/18
Reviewed: 11/17/95

EMPLOYEE-STUDENT RELATIONS

A TSBVI employee has the responsibility to maintain high professional standards in relationships with students. While an employee is encouraged to establish and maintain a positive rapport and interest in the students, an employee must maintain a professional relationship with students.  An employee may not develop inappropriate personal relationships with students or relate to or interact with students in ways that are incompatible with the employee’s job responsibilities.  Inappropriate fraternization, dating, inappropriate physical contact, borrowing or loaning money or belongings, buying or selling items (except for school approved fund raising projects), disclosing sensitive personal or confidential information about self, other staff, or students, is prohibited.

A TSBVI employee may not have contact with students after the employee’s regularly scheduled work hours, including but not limited to visits in homes, going out to eat, attendance at community functions, and shopping trips, unless the date and time of each specific activity or regularly scheduled activity, is approved by the student's parent, the Principal and the Superintendent.

Students may not reside in the home of a TSBVI employee unless approved by the Superintendent, Principal, parent, and local school district.

ELECTRONIC COMMUNICATION WITH STUDENTS

Permitted Electronic Communications

Teachers and other approved staff members may communicate with students through the use of electronic media within the scope of the individual’s professional responsibilities.  For example, a teacher may set up a social networking page for his or her class that has information related to class work, homework, and tests.  Parents will always be permitted to join or become a member of such a page.  A staff member may also contact a student individually through electronic media to communicate about items such as homework or upcoming tests and copy the parent or principal.

Prohibited Electronic Communications

Staff members may not communicate electronically with students outside the scope of the staff member’s professional responsibilities.  Examples of communications may include text messages, email, phone calls, and social networking (e.g. Facebook).  In addition, staff members may not post information about students, including photographs, on non-school Internet sites.  (e.g. a personal Facebook page)

Parent Choice

Parents may submit a written request to the Principal if they prefer that their child not receive any one-to-one electronic communications from a staff member.  In this case, this information will be included on a student’s one-page Student Information Summary.

EMPLOYEE-FAMILY RELATIONS

An employee is prohibited from performing paid or unpaid work for a student’s parent or guardian unless the performance of the work has been approved in writing by the Superintendent and the Principal. The Superintendent and the Principal will approve such work only when, in their sole judgment, the TSBVI employment responsibilities of the employee will not conflict with the employee's responsibilities to the student’s parent or guardian. The Superintendent or the Principal may withdraw approval for such work at any time after determining that a conflict is likely to or has occurred. 

A TSBVI employee must maintain a professional relationship with families of TSBVI students at all times. While an employee is encouraged to establish and maintain a professional rapport and interest in the families of TSBVI students, employees shall avoid developing personal relationships with family members that extend beyond educational issues.

STAFF TRAINING

The Superintendent shall ensure that each employee receives a copy of this policy at the beginning of each school year and that each new employee receives training concerning this policy as a part of New Employee Orientation.

Adopted:         7/31/79
Amended:        3/7/80, 5/25/88, 11/15/96, 3/21/97, 11/22/02, 11/9/12, 9/20/13, 1/26/18
Reviewed:

SEARCHES - GENERAL RULE

Citizens, including School employees, have a right to be free from unreasonable searches and seizures. U. S. Const. Fourth Amendment; Tex. Const. Fourth Amendment; Tex. Const. Art. I, Sec. 9

The Superintendent may authorize the search of an employee or an employee's property if:

  1. There are reasonable grounds to believe that the search will turn up evidence that the employee is guilty of work-related misconduct; and
  2. The search is reasonably related in scope to the circumstances that justified the interference in the first place.

O'Connor v. Ortega, 480 U.S. 709,107 S. Ct. 1492 (1987); New Jersey v. T. L. O., 469 U.S. 325 (1985)

In addition, the Superintendent may authorize a search of an employee's workplace for non-investigatory, work-related purposes, or if there are reasonable grounds to believe that the search will turn up evidence that the employee is guilty of work-related misconduct.  O'Connor v. Ortega, 480 U.S. 709 (1987)

The Superintendent shall develop procedures under which an employee, an employee's property or an employee's workplace may be searched.  (See Procedure A.2.4.4 – Procedure for Employee Searches)

Drug/Alcohol Testing

Blood, urine, and breath tests of public employees to determine drug use are searches under the Fourth Amendment of the U.S. Constitution.  Skinner v. Railway Labor Executives Ass'n, 489 U.S. 602 (1989)

Random Drug Testing

The School may conduct drug tests, without a warrant and without individualized suspicion, when the test serves special governmental needs that outweigh the individual’s privacy expectation.  Skinner v. Railway Labor Executives Ass’n, 489 U.S. 602 (1989); Nat’l Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989)

Safety Sensitive Position

Random alcohol and drug testing of employees in “safety sensitive” positions may be permissible when the intrusiveness of the search is minimal and the Board is able to demonstrate that the drug-testing program furthers its interest in ensuring the physical safety of students. “Safety-sensitive” positions include those that involve the handling of potentially dangerous equipment or hazardous substances in an environment including a number of children.  Aubrey v. Sch. Bd. of LaFayette Parish, 148 F.3d 559 (5th Cir. 1998)

TESTING OF DRIVERS

The School shall conduct testing, in accordance with federal regulations, of commercial motor vehicle operators for use of alcohol or a controlled substance that violates law or federal regulation.  49 U.S.C. 31306; 49 CFR Part 382

The following testing requirements apply to every School employee who operates a commercial motor vehicle ("driver") and is subject to commercial driver's license requirements in accordance with federal regulations.

PROCEDURES

The Superintendent shall develop procedures to implement the drug and alcohol testing required under this policy.  (See Procedure A.2.4.3 Alcohol and Controlled Substance Testing and Procedure 0.6.1 Use of School Vehicles)

TESTING REQUIREMENTS

Commercial Motor Vehicle Defined

A commercial motor vehicle is defined as a motor vehicle used to transport passengers or property that:

  1. Has a gross combination weight rating of 26,001 or more pounds inclusive of a towed unit with a gross vehicle weight rating of more than 10,000 pounds; or
  2. Has a gross vehicle weight rating of 26,001 or more pounds; or
  3. Is designed to transport 16 or more passengers, including the driver.

49 CFR 382.107

Testing Procedures

The School shall ensure that all alcohol or controlled substances testing conducted under 49 CFR Part 382 complies with the procedures set forth in 49 CFR Part 40.  49 CFR 382.105

U.S. Department of Transportation (DOT) test must be completely separate from non-DOT tests in all respects.  DOT tests must take priority and must be conducted and completed before a non-DOT test is begun.  49 CFR 40.13

Tests Required

Required testing includes pre-employment, post-accident, random, reasonable suspicion, return-to-duty and follow-up testing.  No driver shall refuse to submit to a post-accident alcohol or controlled substances test, a random alcohol or controlled substances test, a reasonable suspicion alcohol or controlled substances test, or a return-to-duty or follow-up alcohol or controlled substances test.  The

School shall not permit a driver who refuses to submit to such tests to perform or continue to perform safety-sensitive functions.  49 CFR 382.211, .309

Education and Treatment

The School is not required to provide an evaluation by a substance abuse professional or any subsequent recommended education or treatment for an employee who has violated a drug and alcohol regulation of the U.S. Department of Transportation (DOT).

However, if the School offers an employee an opportunity to return to a safety-sensitive duty following a violation, the School must, before the employee again performs that duty, ensure that the employee receives an evaluation by a substance abuse professional and that the employee successfully complies with the professional’s evaluation recommendations. I49 C.F.R. 40.289

Return-to-Duty Testing

If the School permits an employee who has violated a DOT drug and alcohol regulation to return to safety-sensitive functions, the School must ensure that the employee takes a return-to-duty test.  This test cannot occur until after the substance abuse professional has determined that the employee has successfully complied with prescribed education and/or treatment.  The employee must have a negative drug test result and/or an alcohol test with an alcohol concentration of less than 0.02 before resuming performance of safety-sensitive duties.

The School is not required to return an employee to safety-sensitive duties because the employee has met the condition described in the preceding paragraph.  Return-to-duty is a personnel decision that the Superintendent has the discretion to make, subject to legal requirements. 49 CFR 40.305 (a)-(b)

Educational Materials

The School shall provide educational materials that explain the federal requirements and the School's policies and procedures with respect to meeting these requirements and shall ensure that a copy of these materials is distributed to each driver prior to the start of alcohol and controlled substances testing under this policy and to each driver subsequently hired or transferred into a position that requires driving a commercial motor vehicle.  Written notice to representatives of employee organizations of the availability of this information shall also be provided.  The materials shall include detailed discussion of at least the legally required items. 49 CFR 382.601

REPORTS

Because the School is required by federal safety regulations to conduct alcohol and drug testing of an

employee who holds a commercial driver's license, the School shall report the following information to the Department of Public Safety:

  1. A valid positive result on an alcohol or drug test and whether the specimen producing the result was a dilute specimen.
    "Valid positive result" means an alcohol concentration of 0.04 or greater on an alcohol confirmation test, or a result at or above the cutoff concentration levels listed in 49 CFR 40.87 on a confirmation drug test.
    “Dilute specimen” means a specimen with creatinine and specific gravity values that are lower than expected for human urine.
  2. A refusal to provide a specimen for an alcohol or drug test.
  3. An adulterated specimen or substituted specimen, as defined at 49 CFR 40.3, on an alcohol or drug test.

For purposes of this requirement, the term "employee" includes applicants for employment subject to pre-employment testing.

Transp. Code 644.251-.252;49 CFR 40.3

Adopted:         5/26/95

Amended:       3/22/96, 3/21/97, 1/28/00, 5/25/04, 1/27/06, 9/25/15, 5/31/19

Reviewed:       5/24/96

PROHIBITION AGAINST ILLEGAL AND FRAUDULENT ACTS AGAINST TSBVI

School officers and employees are strictly prohibited under the law and under this policy from engaging in any illegal, improper, or dishonest, acts and/or practices that may involve the School.

Officers and employees who engage in such acts are subject to immediate termination of employment.

PURSUING LEGAL REMEDIES

The School shall pursue available legal remedies against persons or entities, including School officers and employees who engage in fraudulent acts against the School.  Remedies include, but are not limited to, terminating employment, requiring restitution, and forwarding of information regarding suspected fraud to the appropriate authorities for criminal prosecution.

SCOPE OF PROHIBITED ACTS

Within this policy, illegal, improper and/or dishonest acts and/or practices include, but are not limited to:

  1. Theft.
  2. Fraud.
  3. Embezzlement.
  4. Bribery, rebate, and "kick-back."
  5. Misappropriation, misapplication, destruction, removal, or concealment of property.
  6. Conflicts of interest.

ADMINISTRATIVE RESPONSIBILITY

Administrators of all School departments shall be responsible for identifying potential areas of risk within their respective departments in which fraudulent activities might occur and for implementing reasonable measures to prevent such fraudulent activities.

DUTY TO REPORT FRAUD

A state agency appropriated funds by the Texas Legislature, shall use appropriated funds to assist with the detection and reporting of fraud involving state funds by waste and abuse involving state resources directly to the State Auditor's Office.  This shall include, at a minimum, the State Auditor's Office fraud hotline information and a link to the State Auditor's Office website for fraud reporting.  (Current General Appropriations Act, Article IX, Sec. 7.09)  See link and hotline below.

Any officer or employee who has reason to suspect that any person, including a school officer or employee, is engaging in any type of fraudulent activity against the School including theft, fraud, embezzlement, bribery, rebate, kick-back, misappropriation, misapplication, destruction, and removal or concealment of School property or conflict of interest (see Policy DHD), shall report the suspected fraudulent activity to the Superintendent in person, by phone, in writing, or by email.  The individual reporting should state the individual(s), School department(s) or other entities involved; describe the fraud, waste, or abuse that is being reported, and any other detail that might assist the Superintendent or the State Auditor.  As much detail as possible should be provided so that appropriate action can be taken.  The individual reporting may choose to report anonymously, or provide a phone number or email address at which the reporter can be contacted for more information.  In no event shall any TSBVI officer, or employee, take any retaliatory action against the person making the report.

The School officer or employee also has the option to report suspected waste, fraud, or abuse of state resources directly to the Texas State Auditor’s Office by:

  1. accessing the link found under “Report Fraud” (on the home page of TSBVI’s website or on the School’s Intranet page,
  2. calling 1-800-TX-AUDIT,
  3. by emailing ,
  4. linking to https://sao.fraud.texas.gov/reportfraud,
  5. faxing to 512/936-9812 or
  6. writing:
    State Auditor's Office
    ATTN:  Investigations and Audit Support 
    P.O. Box 12067 
    Austin, TX 78711. 

The officer or employee reporting any type of fraudulent activity against the School to the State Auditor may make the report anonymously.

INVESTIGATION OF REPORTS

Reports of fraudulent activities shall be investigated in accordance with procedures developed and implemented by the Superintendent.  To the extent possible, the Superintendent shall investigate anonymous reports in the same manner as reports from a named person.

SUPERINTENDENT’S REPORT TO STATE AUDITOR AND TO THE BOARD OF TRUSTEES REGARDING SUSPECTED FRAUDULENT ACTIVITIES

If the Superintendent has reasonable cause to believe, which is more than mere suspicion and based on particular facts which support the belief, that money received from the State by TSBVI or a TSBVI contract may have been lost, misappropriated, or misused, or that other fraudulent or unlawful conduct has occurred in relation to the operation of TSBVI, the Superintendent shall report the reason and basis for the belief to the state auditor and to the TSBVI Board of Trustees.  The state auditor may investigate the report or may monitor any investigation conducted by TSBVI.  Gov't. Code §321.022, 811.101-.102

The report to the state auditor should include a description of the incident, the estimated value of the loss, the identity of all persons who may have involvement or knowledge relating to the loss, and a description of such involvement or knowledge, a description of the evidence, and the name and telephone number of the agency employee responsible for resolving the incident.

Adopted:         1/24/97

Amended:       1/23/98, 1/26/99, 9/25/15, 6/1/18

Reviewed: