John Mark Fetchin v. Lionel Meno, in His Capacity as Commissioner of Education Central Education Agency And Lewisville Independent School District

Fetchin TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN ON REMAND NO. 03-94-00680-CV John Mark Fetchin, Appellant v. Lionel Meno, in his Capacity as Commissioner of Education; Central Education Agency; and Lewisville Independent School District, Appellees FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT NO. 93-04263, HONORABLE W. JEANNE MEURER, JUDGE PRESIDING Appellee Lewisville Independent School District ("LISD") terminated appellant John Mark Fetchin's employment at the end of the 1990-91 school year. Fetchin appealed his termination to appellee Lionel Meno, the Commissioner of Education ("the Commissioner"), who upheld LISD's decision. Fetchin sought judicial review of the Commissioner's decision, and the district court affirmed. Fetchin appeals, and we will affirm the judgment. PROCEDURAL BACKGROUND This cause comes to us on remand from the Texas Supreme Court. In our prior opinion, we held that Fetchin had not properly brought the administrative record to this Court for review because it was transmitted as part of the transcript and not as part of the statement of facts. See Fetchin v. Meno, 922 S.W.2d 549, 551-52 (Tex. App--Austin 1995), rev'd, 916 S.W.2d 961 (Tex. 1996). On that basis, we affirmed the district court's judgment. Id. Fetchin appealed to the Texas Supreme Court, which reversed our judgment on the basis that Fetchin had properly presented the administrative record for our review. Fetchin v. Meno, 916 S.W.2d 961, 962 (Tex. 1996). The court relied on its opinion in Nueces Canyon Consolidated Independent School District v. Central Education Agency, 917 S.W.2d 773, 776 (Tex. 1996), which was released the same day and held that an appellant may bring an administrative record to this Court either by means of the transcript or as an exhibit to the statement of facts. Fetchin, 916 S.W.2d at 962. Accordingly, the supreme court remanded this cause to us to consider Fetchin's single point of error. THE CONTROVERSY During the 1990-91 school year, Fetchin's principal, Cathy Bryce, received several complaints from parents about Fetchin's teaching methods. Additionally, Fetchin received a less than average teaching evaluation. As a result, a professional growth plan was prepared for Fetchin in November 1990, offering suggestions on how to improve his classroom performance. In March 1991, approximately three and one-half months after the implementation of the plan, LISD's superintendent recommended that Fetchin's employment be terminated. LISD's Board of Trustees accepted that recommendation and, on appeal, the Commissioner affirmed the termination. Fetchin then sought judicial review in district court, which affirmed the Commissioner's decision. By one point of error, Fetchin argues that the Commissioner erred in affirming his termination. Specifically, Fetchin challenges the Commissioner's findings that LISD: (1) gave Fetchin adequate notice of his teaching deficiencies; (2) gave Fetchin a meaningful opportunity to correct the deficiencies; (3) properly terminated Fetchin for "repeatedly" violating official policies and directives; and (4) gave Fetchin due process of law. DISCUSSION By his point of error, Fetchin essentially complains of two things: (1) that the Commissioner's underlying findings of fact do not support one of the Commissioner's ultimate findings that Fetchin was terminated for good cause, and (2) the Commissioner's order is erroneous because LISD did not afford Fetchin due process of law before terminating his employment. We will consider each argument in turn. As a threshold matter, we note that this appeal is governed by the substantial-evidence standard of judicial review because the Education Code does not specify otherwise. See Administrative Procedure Act, Tex. Gov't Code Ann. § 2001.174 (West 1996); Tex. Educ. Code Ann. § 13.115(c) (West 1991). Good Cause for Termination A teacher employed under a continuing contract has a property interest in his or her employment and may be discharged only for good cause. Tex. Educ. Code Ann. § 13.107 (West 1991). The Texas Education Code sets forth the grounds on which a continuing-contract teacher may be discharged for cause. Id. §§ 13.109-.110. (1) LISD gave four independent statutory grounds for terminating Fetchin's employment: (1) repeated failure to comply with official directives and established school board policy; (2) repeated and continuing neglect of duties; (3) failure to comply with such reasonable requirements as the board of trustees of the employing school district may prescribe for achieving professional improvement and growth; and (4) for good cause, namely the failure to meet the accepted standards of conduct for the profession as generally recognized and applied in similarly situated school districts throughout Texas. Id. §§ 13.109(4) & (6), 13.110(2) & (7). In his final order, the Commissioner affirmed LISD's decision and made ultimate findings that LISD properly terminated Fetchin's employment under statutory grounds one and three listed above. On appeal to this Court, Fetchin argues that the Commissioner erred in finding that Fetchin's termination was proper under statutory ground one, i.e., that he repeatedly failed to comply with official policies and directives. Fetchin does not argue that the Commissioner's underlying fact findings are unsupported by substantial evidence, but rather argues that the underlying findings do not support the Commissioner's ultimate finding that he was properly terminated under statutory ground one. Fetchin argues first that he did not repeatedly violate official directives and policies and second that he was not given an adequate time and meaningful opportunity to correct his teaching deficiencies. We reject Fetchin's argument for two reasons. First, even if correct, Fetchin's point of error cannot warrant a reversal of the Commissioner's order because Fetchin has not challenged the Commissioner's ultimate finding on statutory ground three, which independently supports Fetchin's termination. In his administrative appeal to the Commissioner, Fetchin had the burden to challenge the Board's four reasons for terminating him. The Commissioner, in affirming the LISD Board, determined that Fetchin had not carried his burden on statutory grounds one and three. In seeking judicial review before the district court and this Court, Fetchin has the burden to show that both statutory grounds relied on by the Commissioner are invalid; we must affirm the Commissioner's order if one statutory basis for termination is valid even though the other may be erroneous. (2) Fetchin has not challenged the evidentiary or legal support for the Commissioner's ultimate finding on statutory ground three, and that ground independently supports the Commissioner's order. Secondly, we believe that the Commissioner's ultimate finding on statutory ground one was properly drawn from the unchallenged findings of fact. We will briefly summarize the Commissioner's findings on this issue. In November 1990, Bryce informed Fetchin that his teaching was deficient in a number of respects, with one specific problem being that Fetchin's students were intimidated by his sarcastic sense of humor and attempted use of negative reinforcement as a teaching tool. Bryce gave Fetchin a "professional growth plan" that called for Fetchin to maintain a more supportive learning environment by using encouragement, positive reinforcement, and praise, especially with reluctant students. The plan required Fetchin to greet students at the door with a smile and then monitor students by circulating among them to answer questions and provide feedback while they were completing work assignments. Although these plan requirements could have been immediately implemented, three months elapsed and Fetchin still failed to perform adequately. Fetchin continued to be sarcastic to students, did not greet his students with a smile, and failed to provide a supportive, positive, and encouraging learning environment. Fetchin's principal monitored his performance on numerous occasions over the three-month period and warned him on several occasions that he was not complying with the requirements of his growth plan. Furthermore, Fetchin's continuing poor performance was evidenced by the fact that the school received twenty-one parent complaints about Fetchin after he received his growth plan. We believe that these findings fully support the Commissioner's ultimate finding that Fetchin repeatedly failed to follow official directives as outlined in his professional growth plan. The plan outlined simple changes, such as smiling and circulating among the students, that could have been implemented immediately. Not only did Fetchin fail to make the required changes immediately, he failed to do so within three months. Given the simple and reasonable requirements of Fetchin's growth plan, his failure to comply for three months qualifies as a repeated failure to follow the plan directives. Fetchin argues in response that LISD failed to give him an adequate opportunity to remedy these deficiencies. Fetchin cites a decision of the Commissioner for the proposition that a teacher must be given an opportunity to remedy deficiencies before being terminated for cause. See Tex. Comm'r of Educ., Tyler v. Galveston Indep. Sch. Dist., Docket No. 132-R1b-783 (November 13, 1984). Fetchin further argues that three months is too short a time to have an adequate opportunity to do so. We disagree. The remediation requirement ensures that a continuing-contract teacher cannot be terminated unless "the teacher has been advised of the deficiencies and either cannot or will not overcome them." Id. The school district must assist the teacher in correcting deficiencies that "the teacher could reasonably be expected to overcome." Id. Fetchin would have us hold, as a matter of law, that three months is too short a time to remedy any deficiencies. Though three months may be insufficient time in some cases, it was ample time in Fetchin's case. Whether a period of time is adequate to remedy deficiencies must necessarily be evaluated in the context of the deficiencies at issue. Simple problems may require only a short time to correct, whereas more complex problems may require a longer time. In the Tyler proceeding, the Commissioner found that the school district had given a teacher insufficient time to remedy her deficiencies because, over five months, the teacher made good progress in correcting her deficiencies and showed significant improvement. In addition, Tyler's remedial plan called for extensive changes to her method of preparing lesson plans, required new procedures outlined in a teacher's guide, and so on. By way of contrast, the remediation required in this case was simple and Fetchin gave little indication that he was truly attempting to follow his growth plan. Three months was ample time for Fetchin to make progress in smiling, greeting students, circulating among the students, and eschewing sarcasm in favor of a more positive learning environment. The record shows that LISD gave Fetchin ample notice of these problems in November 1990 and provided the growth plan as a tool to assist Fetchin in correcting them. Fetchin's principal monitored him and warned him several times that he was not complying with the simple requirements of his growth plan. Given the problems at issue and the solutions proposed in this case, we hold that LISD gave Fetchin ample opportunity to remedy his deficiencies. Accordingly, the Commissioner did not err in determining that LISD had good cause for terminating Fetchin. Due Process of Law Fetchin's second complaint is that LISD failed to accord him due process of law before terminating his employment. A continuing-contract teacher has a property interest in his or her employment and must receive due process before being terminated. Findeisen v. North East Indep. Sch. Dist., 749 F.2d 234, 237 (5th Cir. 1984), cert. denied, 471 U.S. 1125 (1985); see Grounds v. Tolar Indep. Sch. Dist., 856 S.W.2d 417, 418 (Tex. 1993) (teacher who may be terminated only for cause has property interest under federal constitution). Specifically, Fetchin contends that LISD failed to give him adequate time to remedy his teaching deficiencies after receiving his professional growth plan in November 1990. Therefore, Fetchin argues that the Commissioner erred in affirming his termination because it violated his constitutional rights. (3) See Tex. Gov't Code Ann. § 2001.174(2)(A) (West 1996). We reject Fetchin's argument because, although the opportunity to remedy deficiencies may be required to terminate a teacher for good cause, it is not constitutionally required as a matter of due process of law. The Education Code specifies the pretermination procedure to which continuing contract teachers are entitled: (1) Prompt notice of the proposed termination, including the grounds therefor and, in the case of termination for failure to perform assigned duties, copies of all evaluations and memoranda concerning the teacher's fitness; (2) A public hearing at which the teacher may be represented by counsel, present evidence, and cross-examine witnesses; and (3) Notification in writing of the Board's decision. Tex. Educ. Code Ann. § 13.111-.114 (West 1991). These protections provide all the process of law that a continuing-contract teacher is due. Swanson v. Houston Indep. Sch. Dist., 800 S.W.2d 630, 632 (Tex. App.--Houston [14th Dist.] 1990, writ denied); see also Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542-46 (1985) (discussing minimum process due tenured government employee under federal constitution). The record clearly indicates that Fetchin was accorded due process of law before his employment was terminated. Accordingly, we hold that the Commissioner's order did not violate Fetchin's constitutional rights. For the foregoing reasons, we overrule Fetchin's sole point of error. CONCLUSION Having overruled Fetchin's sole point of error, we affirm the judgment of the district court. Mack Kidd, Justice Before Justices Powers, Kidd and B. A. Smith Affirmed Filed: July 31, 1996 Do Not Publish 1. This cause is governed by the version of the Education Code in effect at the time Fetchin's employment was terminated in 1991. See Act of May 20, 1971, 62nd Leg., R.S., ch. 405, § 2, 1971 Tex. Gen. Laws 1449, 1476-77, amended by Act of June 30, 1984, 68th Leg., 2nd C.S., ch. 28, art. III, part A, § 1, 1984 Tex. Gen. Laws 150, 150 (Tex. Educ. Code Ann. §§ 13.109-.110, since repealed). The Code has subsequently been amended and reenacted with different numbering. See Act of May 27, 1995, 74th Leg., R.S., ch. 260, § 1, 1995 Tex. Gen. Laws 2207 et seq. Throughout this opinion we cite to the 1991 version of the Code. 2. In the case of original agency action, such as the grant or revocation of a license or permit, we ordinarily remand to the agency if we determine that any ultimate finding is invalid because we must measure the order "by what it says"; we cannot speculate whether the agency would have reached the same decision under the remaining ultimate findings that support the order. See Morgan Drive-Away, Inc. v. Railroad Comm'n, 498 S.W.2d 147, 152 (Tex. 1973). In this case, however, the Commissioner acted only as an appellate body reviewing Fetchin's administrative appeal from the decision of the LISD Board of Trustees. See Tex. Educ. Code Ann. § 13.115(a) (West 1991). In such a situation, we review the agency's order in the same manner as a trial-court judgment and will affirm it if it is proper on any independent ground. 3. Fetchin does not specify which constitution, Texas or federal, that he contends was violated; however, we find the distinction irrelevant to our analysis. erefore, Fetchin argues that the Commissioner erred in affirming his termination because it violated his constitutional rights. (3) See Tex. Gov't Code Ann. § 2001.174(2)(A) (West 1996). We reject Fetchin's argument because, although the opportunity to remedy deficiencies may be required to terminate a teacher for good cause, it is not constitutionally required as a matter of due process of law. The Education Code specifies the pretermination procedure to which continuing contract teachers are entitled: (1) Prompt notice of the proposed termination, including the grounds therefor and, in the case of termination for failure to perform assigned duties, copies of all evaluations and memoranda concerning the teacher's fitness; (2) A public hearing at which the teacher may be represented by counsel, present evidence, and cross-examine witnesses; and (3) Notification in writing of the Board's decision. Tex. Educ. Code Ann. § 13.111-.114 (West 1991). These protections provide all the process of law that a continuing-contract teacher is due. Swanson v. Houston Indep. Sch. Dist., 800 S.W.2d 630, 632 (Tex. App.--Houston [14th Dist.] 1990, writ denied); see also Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542-46 (1985) (discussing minimum process due tenured government employee under federal constitution). The record clearly indicates that Fetchin was accorded due process of law before his employment was terminated. Accordingly, we hold that the Commissioner's order did not violate Fetchin's constitutional rights. For the foregoing reasons, we overrule Fetchin's sole point of error. CONCLUSION Having overruled Fetchin's sole point of error, we affirm the judgment of the district court. Mack Kidd, Justice Before Justices Powers, Kidd and B. A. Smith Affirmed Filed: July 31, 1996 Do Not Publish 1. This cause is governed by the version of the Education Code in effect at the time Fetchin's employment was terminated in 1991. See Act of May 20, 1971, 62nd Leg., R.S., ch. 405, § 2, 1971 Tex. Gen. Laws 1449, 1476-77, amended by Act of June 30, 1984, 68th Leg., 2nd C.S., ch. 28, art. III, part A, § 1, 1984 Tex