Decision of the commissioner



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DOCKET NO. 021-R10-1001

DOCKET NO. 045-R10-102

EVA FENTER § BEFORE THE

§

§

V. § COMMISSIONER OF EDUCATION



§

QUINLAN INDEPENDENT §

SCHOOL DISTRICT § THE STATE OF TEXAS
DECISION OF THE COMMISSIONER

Statement of the Case

Petitioner, Eva Fenter, appeals the action of Respondent, Quinlan Independent School District, concerning her grievance. Joan Stewart is the Administrative Law Judge appointed by the Commissioner of Education to preside over this case. Petitioner is represented by Daniel A. Ortiz, Attorney at Law, Arlington, Texas. Respondent is represented by Mark P. Tilley, Attorney at Law, Austin, Texas. The Administrative Law Judge issued a Proposal for Decision recommending that Petitioner’s appeals be denied in part and dismissed in part. Exceptions and replies were timely filed and considered.



Findings of Fact

The following Findings of Fact are supported by substantial evidence:

1. Petitioner, at all times relevant to this Petition, was employed by Respondent as an intermediate school librarian.

2. Petitioner is certified to work as a librarian in the public schools in the State of Texas.

3. Petitioner received an employee appraisal from Respondent on or about May 24, 2001.

4. Respondent issued a professional growth plan to Petitioner on August, 17, 2001.

5. Petitioner’s job duties are to check out books; check in books; shelve books; collect book fines; assist teachers; assist with A/R program as needed (testing); assist with book fair; enter every book in the library computer system; book inventory; provide positive feedback/climate to students/teachers; and keep library neat and organized.

Discussion

Performance Appraisal

Petitioner argues that Respondent administered a performance appraisal in violation of the school laws of Texas. Petitioner asserts that the performance appraisal was in violation of section 21.351, which is in subchapter H of the Texas Education Code and 19 Tex. Admin. Code section 150.1003. This appeal, at its most essential level, requests the Commissioner to define the term “librarian” as synonymous with the term “teacher” wherever the term “librarian” is found within the Texas Education Code.

Petitioner cites section 21.201, which is in subchapter E, of the Texas Education Code to support her argument. Section 21.201 provides in pertinent part as follows:

SUBCHAPTER E. TERM CONTRACTS


21.201 Definitions
In this subchapter:


  1. “Teacher” means a superintendent, principal, supervisor, classroom teacher, counselor, or other full-time professional employee who is required to hold a certificate issued under Subchapter B or a nurse. The term does not include a person who is not entitled to a probationary, continuing, or term contract under Section 21.002, an existing contract, or district policy.

Petitioner argues that because the definition of “teacher” in subchapter E would include librarians, and because the term “teacher” in subsequent subchapters F and G must logically include librarians, then librarians and other “professional employees required to hold a certificate under subchapter B or a nurse” are included in the definition of “teacher” in subchapter H. Thereby, under Petitioner’s theory, librarians and all other “professional employees” must be treated exactly like teachers under the appraisal process in Chapter 21, subchapter H of the Texas Education Code, and 19 Tex. Admin. Code section 150.1001 et seq.

Petitioner argues that “librarians” are “classroom teachers” for the purposes of appraisals and growth plans. Petitioner’s argument fails because Chapter 21, subchapter H, although it follows subchapters E, F, and G sequentially in the statute, is not a progression of the concept of a Subchapter E teacher contract. A hearing held under the statutory authority of Subchapter F, must be in regard to a teacher contract. A Subchapter G appeal to the Commissioner of Education regarding the outcome of a Subchapter F hearing is in regard to a teacher contract. Subchapter H does not pertain to teacher contracts. Subchapter H is entitled “APPRAISALS AND INCENTIVES.” The statutory provisions of Subchapter H deal with teacher appraisals and incentives. The definition of the term “teacher” in Subchapter E does not apply as a definition for the term “teacher” as it is utilized in Subchapter H. Librarians and “other professionals” with Chapter 21 contracts are not “teachers” as that term is used in Subchapter H. Therefore, the statutory and rule provisions regarding teacher appraisals are only applicable to classroom teachers. These provisions are inapplicable to librarians and “other professional employees” that hold Chapter 21 contracts.



Professional Growth Plan

Petitioner argues that the professional growth plan issued to Petitioner by Respondent is in violation of the school laws of Texas, violating 19 Tex. Admin. Code section 150.1004, and section 21.404 of the Texas Education Code. 19 TAC section 150.1004 by its own terms only applies to teachers. This rule is a mandatory provision that is applicable when a “teacher” is designated as a “teacher in need of assistance.” In Petitioner’s response to the professional growth plan, which was submitted by Petitioner as Exhibit B in the local record, Petitioner states as follows:


“I have had teaching duties taken away from me in the library. I no longer have an opportunity to teach library skills, about books, about authors as I once did. …My main responsibility is to check out/in books”....

By her own words Petitioner has provided substantial evidence that she is not a teacher. Petitioner is not a teacher, and therefore 19 Tex. Admin. Code section 150.1004 is inapplicable to Petitioner’s professional growth plan.

Petitioner additionally argues that the professional growth plan administered by Respondent violates section 21.404 of the Texas Education Code, which provides as follows:
Each classroom teacher is entitled to at least 450 minutes within each two-week period for instructional preparation, including parent-teacher conferences, evaluating students’ work, and planning. A planning and preparation period under this section may not be less than 45 minutes within the instructional day. During a planning and preparation period, a classroom teacher may not be required to participate in any other activity.

Petitioner again argues that librarians are “classroom teachers” for the purposes of appraisals and growth plans, in that the overriding purpose of the appraisal and growth plan is to inform the employee of perceived deficiencies and to allow the supervisor to work with them while they remediate their performance. This argument fails.

Section 5.001(2) of the Texas Education Code provides as follows:
“Classroom Teacher” means an educator who is employed by a school district and who, not less than an average of four hours each day, teaches in an academic instructional setting or a career and technology instructional setting. The term does not include a teacher’s aide or a full-time administrator.

The Commissioner has further clarified the definition of “classroom teacher” to mean “an individual who teaches the Texas Essential Knowledge and Skills. See 19 Tex. Admin. Code Section 153.1022.” Baggett v. El Paso Independent School District, Docket No. 081-R3-300 (Comm’r Educ. 2002). Petitioner argues in her First Amended Petition for Review that her “responsibilities consist solely of clerical work, i.e., checking in and out books, shelving books, and keeping the library neat and organized.” Exhibit 8 in the local record details Petitioner’s job description.


Librarian Responsibilities:


  1. Check out books

  2. Check in books

  3. Shelve books

  4. Collect book fines

  5. Assist teachers

  6. Assist with A/R program as needed (testing)

  7. Assist with book fair

  8. Enter every book into the library computer system

  9. Book inventory

  10. Provide a positive atmosphere that facilitates learning

11. Provide positive feedback/climate to students/teachers

12. Keep library neat and organized

Librarians are valued and important professional members of the educational community; however, a librarian is not a “classroom teacher” unless he or she meets the requirements of section 5.001(2) of the Texas Education Code and 19 Tex. Admin. Code section 153.1022. Substantial evidence supports Respondent’s determination that Petitioner is not a classroom teacher and that section 21.404 of the Texas Education Code does not apply to the administration of her professional growth plan.

Section 21.405

The parties have agreed that Petitioner’s claims under section 21.405 of the Texas Education Code, in relation to the Petitioner’s professional growth plan, are now moot.



Restriction of Duties

Petitioner argues that Respondent has wrongfully restricted her job duties as a librarian in violation of 19 Tex. Admin. Code section 230.311. The heading of Section 230.311 is “Chapter 230, Professional Educator Preparation and Certification; Subchapter J, Certification Requirements for Educators Other than Classroom Teachers and Educational Aides; Rule 230.311, Learning Resources Specialist.” This section of has nothing to do with either the determination or restriction of a librarian’s duties. A librarian’s duties are not established by the school laws of Texas. Petitioner does not state a claim upon which relief can be granted concerning a librarian’s duties and therefore does not invoke the jurisdiction of the Commissioner on this issue.



Exhaustion of Remedies

Petitioner argues that Respondent never asserted that she wasn’t entitled to the protections afforded to teachers until the Level III hearing before the board of trustees. There is no statute or rule that requires the exhaustion of remedies prior to appearing before the board of trustees. Respondent’s local policy does not require the exhaustion of remedies prior to appearing before its board of trustees.



Conclusion

A librarian is not a classroom teacher, unless he or she meets the requirements of section 5.001(2) of the Texas Education Code and 19 Texas Admin. Code section 153.1022. There is substantial evidence to support the Respondent’s finding that the Petitioner is a librarian and not a classroom teacher. The school laws of Texas were not violated in the administration of Petitioner’s appraisal. The school laws of Texas were not violated in the administration of Petitioner’s professional growth plan. Rule 230.311 does not prescribe or restrict a librarian’s duties. A school district is not required to exhaust its defenses prior to the hearing before the board of trustees unless required to do so by local policy. The parties have agreed that Petitioner’s claims under section 21.405 of the Texas Education Code are now moot.





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