ACCEPTED 03-15-00313-CV 6023524 THIRD COURT OF APPEALS AUSTIN, TEXAS 7/10/2015 3:56:40 PM JEFFREY D. KYLE CLERK

NO. 03-15-00313-CV _______________________________________________________________ RECEIVED IN 3rd COURT OF APPEALS IN THE COURT OF APPEALS AUSTIN, TEXAS 7/10/2015 3:56:40 PM THIRD SUPREME JUDICIAL DISTRICT AT AUSTIN, TEXAS JEFFREY D. KYLE ________________________________________________________________ Clerk

HERMENIA JENKINS, Appellant, v. CROSBY INDEPENDENT SCHOOL DISTRICT AND MICHAEL L. WILLIAMS, COMMISSIONER OF EDUCATION, Appellees. ________________________________________________________________ On Appeal from the 200th District Court of Travis County, Texas; Trial Court Cause No. D-1-GN-14-000619 ________________________________________________________________ BRIEF OF AMICUS CURIAE TEXAS ELEMENTARY PRINCIPALS AND SUPERVISORS ASSOCIATION

DANIEL A. ORTIZ State Bar No. 15323100 GIANA ORTIZ State Bar No. 24053824

The Ortiz Law Firm 1304 West Abram Street, Suite 100 Arlington, Texas 76013 817-861-7984 Telephone 817-861-8909 Facsimile [email protected] [email protected]

ATTORNEYS FOR AMICUS CURIAE TEXAS ELEMENTARY PRINCIPALS AND SUPERVISORS ASSOCIATION

IDENTITY OF PARTIES AND COUNSEL

Amicus curiae Texas Elementary Principals and Supervisors Association adopts the parties’ identity of parties and counsel to the order appealed from, and supplements as follows:

Attorneys for Amicus Curiae TEPSA:

Daniel A. Ortiz Giana Ortiz 1304 West Abram Street, Suite 100 Arlington, Texas 76013 817-861-7984 Telephone

IDENTITY OF BRIEFING PARTY

Pursuant to Texas Rule of Appellate Procedure 11(b), this amicus curiae brief is tendered on behalf of Texas Elementary Principals and Supervisors

Association.

SOURCE OF FEE PAID Pursuant to Texas Rule of Appellate Procedure 11(c), this amicus curiae brief is funded wholly by Texas Elementary Principals and Supervisors Association, by and through member contributions. Brief of Amicus Curiae TEPSA Page i TABLE OF CONTENTS Cases Page IDENTITY OF PARTIES AND COUNSEL ................................................. i TABLE OF CONTENTS ................................................................................ ii INDEX OF AUTHORITIES.......................................................................... iii INTEREST OF AMICUS CURIAE TEPSA ................................................... 1 STATEMENT OF THE CASE ...................................................................... 2 ISSUES PRESENTED.................................................................................... 2 STATEMENT OF FACTS ............................................................................. 2 SUMMARY OF ARGUMENT ...................................................................... 3 ARGUMENT ................................................................................................. 4 I. The Unique Role of Principal .................................................... 4 A. Principals Are Treated as Unique by the Legislature ...... 6 B. Principals Are Treated as Unique by the School Community ...................................................................... 9 II. “Principal” Is a Protected “Professional Capacity” ................. 10 III. Jenkins’ Contract is Not an “Administrator Contract” ............ 14 IV. The Commissioner’s Decision is Not Entitled to Deference ... 16 PRAYER ....................................................................................................... 17 CERTIFICATE OF SERVICE ..................................................................... 20 APPENDIX INDEX ..................................................................................... 21 Brief of Amicus Curiae TEPSA Page ii INDEX OF AUTHORITIES Cases Page French v. School Bd., 568 So. 2d 497 (Fla. Dist. Ct. App. 1990) ...................... 11 Joyce v. Spring-Ford Area Sch. Dist., 600 A.2d 1302 (Pa. Commw. Ct. 1991) .......................................................... 11 Murphy v. St. Paul Pub. Schs., 795 N.W.2d 30 (Minn. Ct. App. 2011) ............ 11 Pub. Util. Comm’n v. Gulf States Utils. Co., 809 S.W.2d 201 (Tex. 1991)........................................................................ 3, 17 Commissioner Decisions Barich v. Canadian Independent School District, Docket No. 106-R1-585 (Comm’r Educ. 1985) ........................................ 12, 14 Jenkins v. Crosby Independent School District, Docket No. 043-R10-1211 (Comm’r Educ. 2013) ........................ 12, 13, 15, 16 Lehr v. Ector County Independent School District, Docket No. 003-R3-0908 (Comm’r Educ. 2011) .............................. 3, 8, 13, 17 Pasqua v. Fort Stockton Independent School District, Docket No. 011-R3-1102 (Comm’r Educ. 2004) ............................................ 12 Ramos v. El Paso Independent School District, Docket No. 002-R10-900 (Comm’r Educ. 2002) ............................................ 12 Tuck v. Alief Indep. Sch. Dist., Docket No. 008-R10-1007 (Comm’r Decision 2012) ............................... 14, 15 Veliz v. Donna Independent School District, Docket No. 011-R3-999 (Comm’r Educ. 2000) .............................................. 12 Brief of Amicus Curiae TEPSA Page iii Wheeler v. Austin Independent School District, Docket No. 008-R3-1108 (Comm’r Educ. 2011) ............................................ 14 Statutes 19 TEX. ADMIN. CODE § 149.2001 ........................................................................ 8 19 TEX. ADMIN. CODE § 232.2 (b) ........................................................................ 8 19 TEX. ADMIN. CODE § 241.1 .............................................................................. 8 19 TEX. ADMIN. CODE § 242.1 .............................................................................. 8 TEX. EDUC. CODE § 11.201 ................................................................................... 6 TEX. EDUC. CODE § 11.201(a)) ............................................................................. 3 TEX. EDUC. CODE § 11.202 ........................................................................... 3, 6, 7 TEX. EDUC. CODE § 11.202(a)............................................................................... 3 TEX. EDUC. CODE § 11.253 ................................................................................... 7 TEX. EDUC. CODE § 21.046 ................................................................................... 8 TEX. EDUC. CODE § 21.201(1) .................................................... 10, 12, 14, 15, 16 TEX. EDUC. CODE § 21.202 ........................................................................... 10, 11 TEX. EDUC. CODE § 21.206 ................................................................................. 10 TEX. EDUC. CODE § 21.206(b) ............................................................................ 16 TEX. EDUC. CODE § 21.211 ................................................................................. 10 TEX. EDUC. CODE § 21.354 ................................................................................... 7 TEX. FAMILY CODE § 52.02(7) .............................................................................. 9 Rules Texas Rule of Appellate Procedure 38.1 .............................................................. 2 Board Policies Crosby Indep. Sch. Dist. Bd. Policy DP (Local) .................................................. 7 Crosby Indep. Sch. Dist. Bd. Policy FOE (Legal)................................................ 9 Brief of Amicus Curiae TEPSA Page iv INTEREST OF AMICUS CURIAE TEPSA Formed in 1917, the Texas Elementary Principals and Supervisors Association (“TEPSA”) consists of some 5,800 Pre-K-8th grade principals and supervisors working in the public schools of Texas. TEPSA provides support for its members by way of advocacy, legislative representation, and professional development. TEPSA members are the chief leaders in hundreds of public school districts across the state, in rural, urban, and suburban areas. The vast majority of TEPSA members serve as principals and assistant principals in public elementary schools. TEPSA is interested in this case because the ability of a school district to unilaterally transfer Texas public school principals to any position other than principal creates a career crisis, and economic detriment, from which TEPSA seeks to protect Texas public school principals. TEPSA further seeks to promote the legal rights of such principals throughout Texas. Each of the thousands of educators serving Texas public school children plays a vitally important role in our state’s future. Principals, not unlike superintendents, serve a uniquely crucial role: As the superintendent is the chief instructional leaders of the school district, the principal is the chief instructional leader of the school building. It takes a great deal of dedication, personal sacrifice, and devotion to service to become a principal. Those individuals who Brief of Amicus Curiae TEPSA Page 1 have succeeded in attaining the credentials and experience to become a principal should not be unilaterally demoted to a non-principal position without some form of notice and hearing. The title is not easily earned and should not be freely stripped away. STATEMENT OF THE CASE This is an appeal from a decision of the Texas Commissioner of Education (the “Commissioner”). This amicus curiae brief is presented to the Court advocating a reversal of the Commissioner’s decision by way of an appropriate and equitable interpretation of the statutes and case law. ISSUES PRESENTED Pursuant to Texas Rule of Appellate Procedure 38.1, TEPSA presents this brief not to raise additional issues but to advocate a position on issues raised by the parties. STATEMENT OF FACTS TEPSA adopts the parties’ statements of the facts to the extent such facts are undisputed. To the extent there exist disputed facts, TEPSA does not take a position on such facts unless otherwise noted herein. Brief of Amicus Curiae TEPSA Page 2 SUMMARY OF THE ARGUMENT Involuntarily stripping the principal of a principal’s title is tantamount to a public termination—the effect on the educator’s reputation and earning potential being swift and not easily reversed. TEPSA does not posit that Texas principals have a right to a principal’s position, but rather that Texas principals have a right to process before being stripped of that title. Because the principal’s role garners unique treatment both under the law and in the school district community, to strip the principal of the title and duties constitutes a deprivation of a property interest such that due process is required. First, the legislature treats a principal and a superintendent differently than any other person employed by a school district—but agency law has not abided by that distinction. Agency law through Commissioner’s decisions, reflects application of an arbitrary distinction between superintendent—as “sui generis” the educational leader and chief executive officer of the school district—and treats all other “administrators” as equal. E.g., Lehr v. Ector County Ind. Sch. Dist., Docket No. 003-R3-0908 (Comm’r Educ. 2011) (quoting TEX. EDUC. CODE § 11.201(a)). This distinction ignores the plain language of the statute which also identifies the principal’s role as sui generis on the campus—“the instructional leader of the school.” TEX. EDUC. CODE Brief of Amicus Curiae TEPSA Page 3 § 11.202(a). The principal, unlike any other person on a campus, has a statutorily defined role and attendant duties. TEX. EDUC. CODE § 11.202. Second, the principal’s visibility in the community is second only to that other unique role—the superintendent. Principal reassignments are public events and, thanks to the internet, follow the principal for the rest of her career. The courts’ duty of deference to agency decisions does not permit this Court to affirm the agency’s decision where, as here, it is inconsistent with the statute. See Pub. Util. Comm’n v. Gulf States Utils. Co., 809 S.W.2d 201, 207 (Tex. 1991). This Court should overturn the Commissioner’s decision in this case to apply fundamental principles of statutory construction. The notion that the legislature meant to treat a superintendent as beyond compare—but treat the principal as if she were any other “administrator”—is a fiction created by the Commissioner and which must be corrected by this Court. ARGUMENT I. The Unique Role of Principal The principal is the single chief instructional leader of each public school campus in Texas. The principal reports directly to the highest ranks in the school district—the superintendent(s) and the elected school board. The principal is charged with direction of all activities on a campus from custodial Brief of Amicus Curiae TEPSA Page 4 and maintenance services, to athletics, extracurricular activities, instruction, and testing. In this role, the principal performs a balancing act at all times— implementing policy promulgated by central administration, while maintaining high standards and morale on the campus. At times forced to choose sides (e.g., central office vs. teachers, parent vs. teacher, student vs. student, parent vs. parent, etc.), there are some battles a principal cannot win. The principal must make the most reasonable and intelligent choice with the information she has at that given moment, and face the fallout. For this reason, and because almost every reassignment will constitute a demotion for the principal, the position dictates some minimal process to insulate principals from the inherent political risks associated with the job. That is, when a principal is “reassigned” to a role of significantly less authority (as is any non-principal role), this information is not only reflected on the person’s work history but it is also a very public event. It makes the newspapers and television news, even in large cities. However, a demotion from a principal position—the chief instructional leader position—to assistant principal, attendance coordinator, or any other non-principal position has the same practical effect for the educator as a termination or nonrenewal without requiring the school districts to abide by the procedures set forth in the Texas Brief of Amicus Curiae TEPSA Page 5 Education Code. By permitting the school districts to circumvent those processes to avoid risks, or inconvenience, the Commissioner’s decision in effect condones the school district’s de facto termination or nonrenewal without the due process protections afforded Texas educators in the Texas Education Code. A. Principals Are Treated as Unique by the Legislature. Like superintendents, the role and duties of a principal are expressly set forth by statute. State law defines the job duties for superintendent and principal. TEX. EDUC. CODE §§ 11.201, 11.202. All other school positions are subject to being completely defined by the school district—through the superintendents and principals or their designees. There is no mystery as to the principal’s duties. The duties, and the role, are clearly stated in state law, and may be augmented by the school district. Specifically: a. The principal of a school is the instructional leader of the school and shall be provided with adequate training and personnel assistance to assume that role. b. Each principal shall: (2) shall not discriminate against qua1ify~ng cogenerators or qualifying small power producers. [**41] THE PUBLIC UTILITY REGULATORY ACT

[*213] No such rule prescribed under subsection (a) of In section 41A of the Public Utility Regulatory Act, the this section shall provide for a rate which exceeds the Texas legislature enacted similar provisions controlling

1 "Avoided costs" is defined by the substantive ru1es of the PUC as: The incremental costs to an electric utility of electric energy or capacity or both, which, but for the purchase from the qualifying facility or qualifying facilities, such utility would generate itself or purchase from another source. Tex. Pub. Util. Comm'n, 16 TEX. ADMIN. CODE § 23.66(a)(2) (West Sept. ^[1], 1988) (Arrangements Between Qualifying Facilities and Electric Utilities). 2 In referring to contractual agreements, the Court cited lS C.F.R. § 292.301fb){l), which is identical to§ 23.66(b)(2)(A), for the principle that "a qualifying facility and a utility may negotiate a contract setting a price that is lower than a full-avoided-cost rate." 461 U.S. at 416 (emphasis added). Thl!S, the full-avoided-cost rule sets the maximum rate that applies in the absenc.e of a FERC waiver. Nowhere in American Paper is there any indication that a utility and a QF may negotiate a rate that is above avoided cost. ^[3] All parties agree that the FERC regulations preempt a contrary interpretation by the PUC. The PUC and the Office of Public Utility Counsel (OPC) contend that the PUC has no authority under federal law to approve a rate in excess of avoided cost. GSU argues that the PUC is misinterpreting the FERC regulation. GSU' s interpretation is contrary to the stated purpose of PURPA. If GSU is given free rein to charge the public for QF purchases in excess of avoided cost, the revenue collected from the utility's customers will exceed the revenues that would h:Uve been collected if the utility had procured power from other sources. Such a free rein would permit a utility and willing cogenerator to circumvent the rule's protection of the general public by simply converting the transaction into contractual form. So long as the utility may freely pass~through excessive QF prices to the general public, there is no inherent motivation for either the utility or the cogenerator to protect ratepayers from rapidly escalating revenue requirements. This result is inconsistent with the congressional intent behind PURPA.

Giana Ortiz

Page 14 of 15 809 S.W.2d 201,[*213] ; 1991 Tex. LEXIS 42, **41

transactions between electric utilities and qualifying QF were not tied to its avoided cost but rather to a cogenerators. Section 4IA states in pertinent part: contractual rate, the PUC rejected GSU's request for an automatic pass-through under section 63 of PURA and (b) If an electric utility and a qualifying facility enter into limited GSU's recovery for those payments from its Texas an agreement providing for the purchase of capacity ... ratepayers to its avoided cost. the commission shall detennine whether: GSU contends that section 23.66(b)(2)(A) allows it to (1) the payments provided for in the agreement over the contractually agree to a rate in excess of its avoided cost. contract te~ are equal to or less than the utility's avoided Section 23.66(b)(2)(A) provides: costs as established by the commission and in effect at the tim~ the agreement was signed .... Nothing in ~s subsection:

PURA, § 41A(b)(J) (emphasis added). Section 41A of (A) shall limit the authority of any electric utility or any PURA requires an automatic determination that prices qualifying facility to agree to a rate for any pllrchase, or paid for power from a qualifying facility that are at or tenns or conditio~s relating to any purchase, which differ below avoided cost are just and reasonable. ^[4] The PUC's from the rate or terms· or conditions that would otherwise prohibition on prices in [*214] excess of avoided cost be required by this subsection. conforms to the requirement of PURA § 41A which obligates the PUC to approve an agreement between a QF GSU argues that pursuant to section 23.66(b)(2)(A), the and a utility so long as it detennines that payments "are avoided cost ceiling in Rule 23.66(e) applies only to equal to or less than the utility's avoided cost.". contracts that are initiated under the mandatory terms of the rule, as opposed to voluntarily negotiated contracts · [**42] RULE 23.66(e)(2) - THE AVOIDED COST between electric utilities like GSU and QFs. The PUC LIMITATION rejected this argument. I agree with the PUC.

Pursuant to its obligation under PURA § ! 6(g), the PUC In a seemingly innocuous statement purporting to interpret enacted rules governing the recovery of fuel costs and Rule 23.66(d), ·the majority states that "Rule 23.66(e)'s agreements between electric utilities and QFs: The PUC avoided-cost [**44] rules ... do not apply to voluntary limited a utility's recovery of purchased power payments contracts arranged outside the requirements of Rule to a QF to that utility's "avoided cost." Tex. Pub. Util. 23.66(d)." S.W.2d at . Although Rule 23.66(d) does Comm'n, 16 TEX. ADMIN..CODE §§ 23.23(b)(4){A), require utilities to purchase power when a QF makes it 23.66(e) (West Sept. ^[1], 1988). In pertinent part, section available, the language of the rule does not support the 23.66(e) states: majority's contention that "th~ avoided-cost limit applies only to compelled purchases."ld. at . The conclusion that (1) Rates for purchases of energy and capacity from any the avoided-cost rules do not apply to voluntary contracts qualifying facility shall be just and reasonable to the is without foundation. PURA simply does not distinguish consumers of the electric utility and in the public interest, between voluntary and involuntary agreements. and sha11 not discriminate against qualifying cogeneration Subsection 23.66(b)(2) in no way provides that rule 23.66 and small power production facilities. does not apply to a "negotiated" rate. It merely makes clear that the parties can negotiate a rate other than the avoided (2) Rates for purchases of energy and capacity from any cost. See, e.g., 16 TEX. ADMIN. CODE § qualifying facility shall not exceed avoided cost; .... 23.66(d)(l)(F)(iv) (West Sept. ^[1], 1988) (when purchasing capacity parties can negotiate for price lower than avoided (3) Rates for purchases satisfy the requirements of cost). Nothing in rule 23.66 provides that the utility may paragraph (1) of this subsection if they equal avoided cost. recover an amount greater than the avoi~ed cost from the ratepayers. The PUC interprets this rule to mean that only if a utility's purchased power payments to the QF equal avoided costs Further, the court's construction ~ould effectively destroy or are lower than the avoided costs may those rates be the avoided cost rule. The court's interpretation allows the deemed just and reasonable and in the public interest. utility and QF freedom to agree on a rate as provided [**43] Because GSU's purchased power payments to the [**45] for in section 23.66(b)(2)(A) to trump the rule that

4 Section 41A(c) requires the PUC to certify that the agreement meets the avoided cost limitation of subsection (b)(l). Subsection (c) provides that "in setting the electric utitlity's rates for a period during which the certification is effective, the regulatory authority sha11 consider paymenlS made under the agreement to be reasonable and necessary operating expenses of the electric utility.".

Giana Ortiz

Page JS of 15 809 S.W.2d 201,[*214] ; 1991 Tex. LEXIS 42, **45

rates for purchases shall not exceed avoided costs (Rule would hold that the PUC correctly interpreted Rule 23.66 23.66(e)(2)), yet still requires the agreed rate to ''be just to limit GSU's recovery to its avoided [**47] costs. and reasonable," as is required [*215] in Rule 23.66(e)(l). There is no logical reason to interpret Rule CONCURRING AND DISSENTING OPINION 23.66(2)(a) to trump Rule 23.66(e)(2), yet be subject to the Oscar H. Mauzy, Justice requirement of Rule 23.66(e)(J). Further, the very avoided cost limitation of Section 23.66(e)(2) which GSU asserts This utility case presents two issues involving the to be inapplicable to "negotiated contracts" contains respective burdens of shareholders and ratepayers. In explanatory language referring to "estimates of avoided disposing of both issues, the majority heeds the complaints costs over the specific term of the contract or other legally of the utility company, but fails to recognize the burdens Senforceable obligation." Thus, the drafters of section borne by the ratepayers. I dissent from part II of the 23.66 envisioned the application of an avoided cost majority opinion, and concur only in the result of part III. standard to negotiated contracts. AS to the first issue, I agree with Justice Gonzalez that To allow GSU to pass on the costs of prOduction from the Rule 23.66(e) prohibits a utility from recovering venture even if they exceed the avoided cost rule allows purchased 'power payments in excess of the utility's utilities to make a complete end run around the rule and in avoided cost. Nothing in either the language or the history the process completely eviscerate it. In other words, GSU of that rule suggests that its tenns are inapplicable to is restricted from raising its rates by the avoided cost rule negotiated contracts. Certainly, a utility may contract for a so it sells its plants to a joint venture in which it maintains rate which is lolver than its incremental cost; but the an ownership interest. GSU the°: repurchases the governing federal statute explicitly prohibits the. adoption electricity [**46] at a higher rate than its avoided cost of a rate which exceeds the utility's incremental cost. 16 a.nd, because of the majority's opinion, is allowed to pass U.S.C. § 824a-3(b)(l988). Thus, Rule 23.66(e)(2) should through that extra expens·e to its Texas ratepayers while be read to mean exactly what it says: that a utility's creating windfall earnings for GSU's investors. GSU is purchase rate "shall not exceed avoided -cost." See having its cake and eating it too. It receives management A1nerican Paper Inst.. Inc. v. An1e1ican Elec. Po1i er Sen1.

fees, a percentage of the price that is. paid to the ventu·re, Caro.. 461 U.S. 402, 416. 103 S.ct. 1921, [**481 1930, and it receives a profit when that verY same energy is sold 76 L.Ed.2d 22. 35 (1983)("[A] qualifying facility and a at higher rates as a result of the production costs that are utility may negotiate a contract setting a price that is lo1ver passed through to ratepayers even though those costs are than a full avoided cost rate.")(emphasis added). in excess of the avoided cost rule. This is exactly the type of activity that is prohibited by the avoided cost rule. As to the allocatiQn of proceeds from asset sales, I agree that the Commission should have considered factors other An agency's interpretation of its own regulations should than the relative contributions to depreciation. I would be given deference by the courts. See United States i•. emphasize, however, that the Commission's discretion in Larimzoff431 U.S. 864. 872-73. 97 S.Ct. 2150. 53 L.Ed.2d this context is sharply limited. By shouldering the main 48 11977); Calverl v. Kadane. 427 S. W2d 605. 608 (Tex. financial burdens associated with utilities, and by 1968): Lloyd A. Frv Roofing Co. v. State, 541 S. W2d 639. assuming the risk of loss, ratepayers establish valid 644 !Tex. Civ. App. -- Dallas 1976. writ refd n.r.e.). In my interests in utility assets. Those interests must be taken opinion, the PUC's interpretation of its rules is not into account whenever such assets are sold; any failure to arbitrary, capricious nor plainly erroneous. Accordingly, I do so will necessarily rise to an abuse of discretion.

Giana Ortiz APPENDIXB 2004 TX Educ. Agency LEXIS 17 Copyright (c) 2004 Texas Education Agency June 15, 2004; June 15, 2004 DOCKET NO. Oll-R3-1102 Reporter: 2004 TX Educ. Agency LEXIS 17 IPAUL PASQUA ; v. ; FORTSTOCKTON INDEPENDENT SCHOOL DISTRICT Core Terms reass~gnment, constructive discharge, high school principal, middle school, .fair dealing, good faith, grievance, exhaust, resign, school district Panel: [*1] ROBERT SCOTT, CHIEF DEPUTY COMMISSIONER BY DESIGNATION Opinion DECISION OF THE DESIGNEE OF THE COMMISSIONER Statement of the Case Petitioner, Paul Pasqua, appeals the action of Respondent, FortStock/011 Independent School District, concerning his grievance. Joan Stewart was initially appointed as the Administrative· Law Judge to -preside over this cause. Subsequently, Christopher Maska was appointed substitute Administrative La\v Judge. 'Petitioner is represented by Sam D. Sparks, Attorney at Law,· San Angel~, Texas. Respondent is represented by Shellie Hoffman Ctow, Attorney at- Law, Austin, Te{Cas. The Administrative Law Judge issued a Proposal for Decision recommending that Petitioner's appeal be denied. No exceptions were filed. · Findings of Fact After due consideration of the record and matters officially noticed, it is concluded that the following Findings of Fact are supported by substantial evidence and are the Findings of Fact that can best support Respondent's decision: 1. For eleven years, Petitioner, Paul Pasqua, served as a high school principal for Respondent, FortStockton Independent School District. ^[2]. On April 8, 2002, Petitioner received a two-year contract. The [*2] contract was entitled "Two-Year Tenn Contract for Certified Administrator Position as Assigned." The contract provides: 2. The board will pay Employee in twelve installments an annual salary according to the compensation plan adopted by the Board, but in no event less than the 2001/2002 annual salary. ^[4]. Employee. shall be subject to assignment and reassignment of positions or duties, additional duties, changes in responsibilities or work, transfers, or reclassification at any time during the contract term.· 3. On August 19, 2002, after the completion of the first day of the 2002-2003 school year, Petitioner was called lo the Superintendent's office and was assigned to the position of assistant middle school principal. ^[4]. Petitioner filled the position of assistant middle school principal until his resignation on November 6, 2002. 5. Petitioner received full compensation until he resigned. ^[6]. Board members did not conduct a meeting without posting notice to decide whether Petitioner should be reassigned. Giana Ortiz Page 2 of 4 2004 TX Educ. Agency LEXIS 17, *4 7. Petitioner did not file a timely grievance concerning the lack of evaluations. ^[8]. Petitioner failed to raise a constructive discharge argument before the board of trustees. [*3] Discussion Petitioner contends that Respondent demoted him by reassigning him from high school principal to assistant middle school principal, constructively terminated his contract, failed to evaluate him, and violated the Open Meetings Act. Respondent denies these allegations, alleges that Petitioner failed to exhaust administrative remedies, and argues that the case is moot. Mootness Respondent contends that this -case is moot because Petitioner has resigned from his contract. However, Petitioner alleges that Respondent's actions amount to constructive discharge. If Petitioner were correct as to the constructive discharge claim, relief could be grri.nted. Based on this allegation, the case is not moot. Contract Petitioner contends that his reassignment from high school principal to assistant middle school principal was a demotion which resulted in constructive discharge. Petitioner also contends that his property rights in his contract were violated. The Commissioner's jurisdiction over such claims must be based upon Texas Education Code section 7.057 la): (2) actions or decisions of any school district board of trustees that [*4] violate: (B) a provision of a written employment contract between the ~chool district and a sChool district employee, if a violation causes or would cause monetfily harm. Petitioner had a property interest in his tt?rm contract during the contract's term. The issues are whether the contract was violated and did this result or would it result in monetary harm. For eleven years, Petitioner served as a high school principal for Respondent. On April 8, 2002, Petitioner received a two-year contract The contract was entitled ''Two-Year Term Contract for Certified Administrator Position as Assigned." The contract provides: 2. The board will pay Employee in twelve installments an annual salary according to the compensation plan adopted by the Board, but in no event Jess than the 2001/2002 annual salary. ^[4]. Employee shall be subject to assignment and reassignment of positions or duties, additional duties, changes in responsibilities or work, transfers, or reclassification at any time during the contract term. On August 19, 2002, after the completion of the first day of the 2002-2003 school year, Petitioner was called to the Superintendent's office and was assigned to [*5] the ·position of assistant.middle school principal. Petitioner filled this position until November 6, 2002, when he resigned. Propertv Right Petitioner's contract is not a contract for the position of high school principal. It is a contract for a certified administrator position as assigned. Assistant middle school principal is a certified administrator position. 19 Tex. Admin. Code ch. 241. The Commissioner has held that the professional capacity of administrator is to be broadly interpreted for reassignment purposes. Carpenter v. Wichita Falls Independent School District, Docket No. 247-R3-491 (Comm'r Educ. 1993). While Petitioner was not assigned to the assistant principal position until after he had completed his first day of the new school year as a high school principal, the contract itself allows Petitioner to be Giana Ortiz Page 3 of 4 2004 TX Educ. Agency LEXIS 17, *5 reassigned as long as compensation is not reduced from that in the 2001-2002 school year. Petitioner did not lose any compensation. Petitioner's reassignment did not violate his contract. Good Faith Petitioner contends that the timing of the reassignment was unfair and that he should have been given a chance to remediate if his perfonnance were questioned. [*6] Petitioner alleges that if Respondent had notified him at the beginning of the summer that he would be reassigned for the next school year that he could have sought other high school principal positions. During that time frame, districts would still be looking to fill principal positions and Petitioner could still represent that his position with Respondent was high school principal. Petitioner's argument is that Respondent owe~ Petitioner a duty of good faith and fair dealing . However, in Texas th~re is no duty of good faith and fair dealing in the employment context. Citv of' Midland v. O'Brvallf. 18 S. W.3d 209. 216 !Tex. 2000). Further, even if a cause of action for good faith and fair dealing existed, the only damages in the present case would be lost earnings capacity or loss of reputation. The Commissioner lacks jurisdiction over an employment contract case based on such damages. Smith v. Nelson. 53 S. W.3d 792. 795 (Tex.· App.-Austin 2001, pet. denied), Constructive Discharge It has been held that "A constructive discharge occurs when the employer makes conditions so intolerable that a reasonable person in the employee's [*7] position would have felt compelled to resign." Jett v. Dallas Indep. Sch. Dist.. 798 F.2d 748. 755 (5th Cir. 1986) aff'd in part 109 S.Ct. 2702 (}989). Petitioner has failed to exhaust a administrative remedies as to this issue. Petitioner did not make constructive discharge argument before the board of trustees. This is not surprising because the board hearing occurred on October 28, 2002 and Petitioner did not resign until November 6, 2002. But even assuming that Petitioner-had exhausted administrative remedies he would not prevail. The record does not support a finding that Respondent made Petitioner's working conditions intolerable. While Petitioner's anger at being reassigned is understandable, being assigned to position of less prestige does not by itself constitute constructive discharge. Evaluations Petitioner notes that be was not formally evaluated during the 1999-2000 and 2000-2001 school years. While this could be related to a violation of Texas Education Code sections 21.354 and 39.054, Petitioner should ha:ve brought a grievance as to those events under the district's [*8] grievance policy. Wittman v. Nelson. JOOS. lV.3d 356. 360 (Tex. App.-San Antonio 2002 pet. denied). Respondent limited Petitioner's presentation concerning evaluations to arguments as to how he exhausted local remedies. TR. ^[4]. Even if Petitioner were correct that the failure to provide evaluations violated the school laws of this state, the Commissioner could not as a result order the requested relief of reinstatement and back pay. Open Meetings Act Petitioner contends that board members violated the Open Meetings Act by agreeing to the reassignment of Petitioner outside of a properly called meeting. Tex. Gov't Code§ 551.041. The record is scant as to this issue. Petitioner's representative's allegations taken alone do not constitute a violation of the Open Meetings Act. Tr. 16-17. However, the superintendent's testimony was that he made the decision himself without board approval. Tr. 24. The record does not support a finding that a vi~lation occurred. Even if a violation occurred it would not result in the vote on Petiti.oner's grievance being overturned. A discussion that was not properly conducted according to the Open Meetings Act does not result [*9] in voiding a vote at a properly called meeting on the same subject. Hill v. Palestine !11dep. Selz. Dist.. 113 S. W.3d 14. 17 (Tex. App.-Tyler 2000, pet denied). Conclusion Respondent did not violate Petitioner's contract by reassigning Petitioner. Petitioner's contract allowed for the reassignment. Petitioner failed to exhaust administrative remedies as to his constructive termination and evaluation claims. Respondent did not violate the Open Meetings Act. Petitioner's appeal should be denied. Conclusions of Law Giana Ortiz Page 4 of 4 2004 TX Educ. Agency LEXIS 17, *9 After due consideration of the record, matters officially noticed, and the foregoing Findings of Fact, in my capacity as Designee of the Commissioner of Education, I make the following Conclusions of Law: 1. The Commissioner has jurisdiction to hear this cause under Texas Education Code section 7.057 except as specified in Conclusions of Law Nos. ^[2], 6-8. 2. Because Petitioner failed to exhaust administrative remedies as to his constructive discharge and evaluation claims, the Commissioner lacks jurisdiction over these claims. 19 Tex. Ad1nin. Code § 157.1056(a) [*10] 3. As pied, this caSe is not moot. ^[4]. Assistant middle school principal is a certified administrator position. 19 Tex: Adrnin. Code ch .. 241. 5. Petitioner's reassignment did not violate ·his contract. ^[6]. There is not a duty of good faith and fair dealing in the employment law context. ^[7]. The Commissioner lacks jurisdiction over Petitioner's good faith and fair dealing claim. 19 Tex. Atbnbz. Code § I 57. 10561a /. 8. Even if there were a duty of good faith and fair dealing in the employment context, jurisdiction would not exist under Texas Education Code section 7.057fa)(2)fB) be~ause the Commissioner lacks jurisdiction on a claim of lost earnings capacity or loss of reputation. 19 Tex. Ad1ni11. Code § 157. /056fa). 9. Members of Respondent's board of trustees did not violate the Open Meetings Act as they did not preapprove Petitioner's reassignment outside of a properly called meeting. Tex. Gov't Code§ 551.041 10. Even if members of Respondent's board of trustees had violated the Open Meetings Act by preapproving Petitioner's reassignment outside of a properly [*11] ·Called meeting, this does not result in the board's vote to deny Petitioner's grievance being declared void. 11. Petitioner's appeal should be denied. ORDER After due consideration of the record, matters officially noticed and the foregoing Findings of Fact and Conclusions of Law, in my capacity as Designee of the Commissioner of Education, it is hereby ORDERED that Petitioner's appeal be, and is hereby, DENIED. SIGNED AND ISSUED this 15th day of JUNE, 2004. Giana Ortiz APPENDIX C Crosby ISD 101906 PERSONNEL POSITIONS DP (LOCAL) PRINCIPAL In addition to the minimal certification requirement, the principal QUALIFICATIONS shall have at least: