Certification sanctions and discipline

TEA’s enforcement guidelines identify the following as grounds for disciplinary action:

• Conducting school or education activities in violation of law.
• Unworthiness to instruct or supervise the youth of the state.
• Code of Ethics violations.
• Failure to report or hindering a report of child abuse.
• Unlawful abandonment of a contract governed by the Texas Education Code.
• Failure to cooperate with a TEA investigation.
• Violating the security or integrity of state assessments.
• Committing one of the following sanctionable acts:
  • Any conduct constituting a felony criminal offense.
  • Indecent exposure.
  • Public lewdness.
  • Child abuse and/or neglect.
  • Possession of a weapon on school property.
  • Drug offenses occurring on school property.
  • Sale to or making alcohol or other drugs available to a student or minor.
  • Sale, distribution or display of harmful material to a student or minor.
  • Certificate fraud.
  • Serious state assessment testing violations.
  • Deadly conduct.
  • Conduct that involves soliciting or engaging in sexual conduct or a romantic relationship with a student or minor.
• Committing an act that would constitute a crime (even if there is not a criminal conviction), if the act relates directly to the education profession, as described in §249.16(b) of the Texas Administrative Code. Such crimes indicate a threat to the health, safety or welfare of a student or minor, parent of a student, fellow employee or professional colleague; interfere with the orderly, efficient or safe operation of a school district, campus or activity; or indicate impaired ability or misrepresentation of qualifications to perform the functions of an educator. They include but are not limited to:
  • Crimes involving moral turpitude.
  • Crimes involving any form of sexual or physical abuse or neglect of a student or minor or other illegal conduct with a student or minor.
  • Crimes involving any felony possession or conspiracy to possess, or any misdemeanor or felony transfer, sale, distribution or conspiracy to transfer, sell or distribute any controlled substance defined in the Texas Health and Safety Code, Chapter 481.
  • Crimes involving school property or funds.
  • Crimes involving any attempt by fraudulent or unauthorized means to obtain or alter any certificate or permit that would entitle any person to hold or obtain a position as an educator.
  • Crimes occurring wholly or in part on school property or at a school-sponsored activity.
  • Felonies involving driving while intoxicated (DWI).
  • Intentional failure to comply with the reporting, notification and confidentiality requirements specified in the Texas Code of Criminal Procedure, §15.27(a), relating to student arrests, detentions and juvenile referrals for certain offenses.

The Legislature has empowered SBEC to enforce the standards of conduct. The board is authorized to take actions affecting an educator’s certification after finding that an educator has violated a standard of conduct. SBEC only has power to sanction an educator’s certification that was granted by SBEC itself. The board cannot impose criminal penalties, fines or affect employment directly, though the loss of certification can certainly affect employment.  

The range of disciplinary actions that SBEC can take against an educator range from an uninscribed reprimand to full certification revocation. The range is determined by the severity of the misconduct. In order of increasing severity, an educator who has been found to have engaged in misconduct may receive:

• An uninscribed reprimand: A document stating that the educator has been reprimanded. A general statement describing the alleged misconduct is placed in the educator’s SBEC file, but no notice of the reprimand is made publicly, and no notice is placed on the educator’s virtual certificate maintained by SBEC. 
• An inscribed reprimand: A document stating that the educator has been reprimanded. A general statement describing the alleged misconduct is placed in the educator’s SBEC file, and a notice that the educator has been reprimanded is placed on the educator’s virtual certificate maintained by SBEC. The certificate notice states that the educator has been reprimanded and states the date of the reprimand, but it provides no details regarding the alleged misconduct. The notice is permanent and cannot be removed from the certificate.  
• A probated certificate suspension: Much like probation in the criminal system, with a probated suspension, the educator is suspended, but the suspension is probated, and the educator’s certification remains fully valid. Often the probation will entail certain action by the educator, such as attending a certain number of hours of additional training. Importantly, if SBEC receives notice of additional misconduct, the board may revoke the probation and enforce the original suspension without the full due process procedures normally required. Just as with a reprimand, a document setting out the alleged misconduct and the terms of the suspension and probation is kept in the educator’s SBEC file, and a notice of the probated suspension is permanently added to the educator’s virtual certificate.
• A certificate suspension for a set term: A suspension renders the educator’s certificate invalid for a set period of time—commonly one to five years, depending upon the seriousness of the misconduct. During the term of suspension, an educator is prohibited from working in any position requiring certification. At the end of the suspension, the educator must apply to be reinstated. Although the conduct leading to the suspension cannot be used as grounds to deny reinstatement, any separate and independent conduct that would lead SBEC to deny certification can result in a denial of reinstatement. Again, a document setting out the alleged misconduct and the terms of the suspension is kept in the educator’s SBEC file, and a notice of the suspension is permanently added to the educator’s virtual certificate.
• A permanent revocation of certification: When SBEC determines that an educator’s misconduct is so serious that the educator should never be allowed to work as an educator again, the board will permanently revoke the educator’s certification. In this case the educator normally is unable to reapply for reinstatement at any time.      

Both the Texas Education Code and SBEC rules establish mandatory penalties for certain actions taken by an educator. Included in these mandatory penalties are:

• Mandatory revocation of certification for engaging in or soliciting a romantic relationship with a student or minor.
• Mandatory minimum sanction of certificate suspension for any resolution of a felony-level criminal prosecution that involves a conviction, guilty or nolo contender plea, deferred adjudication or deferred prosecution that involves probation or community supervision.
• Mandatory minimum sanction of an inscribed reprimand for any resolution of a misdemeanor-level criminal prosecution that involves a conviction, guilty or nolo contender plea, deferred adjudication or deferred prosecution that involves probation or community supervision.
• Mandatory minimum sanction of a one-year suspension for any intentional violation of state-mandated test security or manipulation of test results.
• Mandatory one-year suspension of certification for contract abandonment unless one of the mitigating factors provided for in SBEC rules applies.

Once earned, an educator’s certificate cannot be sanctioned without due process. The disciplinary process is regulated by administrative rules and follows a particular pattern, moving from the initial report of an allegation to an investigation, a possible hearing and a possible SBEC determination regarding the appropriateness of a sanction. But to exercise her rights to due process, an educator must respond to a notice that an allegation has been made.

SBEC and the TEA staff conducting conduct the investigation and filing the possible formal complaint described below are only required to mail notice to the address in the educator’s SBEC file. It is critically important that all certified educators make sure that their addresses are up-to-date with SBEC. Failure to do so can result in your losing your right to defend yourself. SBEC can sanction an educator who fails to respond to a notice of investigation or complaint even if the reason she failed to respond is that she did not receive notice because her address was not up-to-date. 

Educators are entitled to legal representation through all phases of the disciplinary process. 

Report of alleged misconduct

Disciplinary investigations may be initiated based on information in virtually any form and from any source, including complaints from parents or even media publicity. Certain agencies are required to notify SBEC when allegations have been made against an educator, most notably the police and Child Protective Services (CPS). However, the educator’s employing school district is the most common source of reports instigating an investigation. 

A school district may report alleged misconduct and in some cases is required to report alleged educator misconduct. Reports are required with certain particularly serious allegations, mostly involving illegal activities and inappropriate activities involving students. Educators should know that state law requires that the superintendent report these allegations when an educator resigns to avoid termination or nonrenewal. That’s why it is unlikely a quick resignation will allow an educator to avoid an investigation into alleged wrongdoing.    

Situations in which school districts are required, under threat of penalty, to report educator misconduct to SBEC include:

• Any sexual conduct, abuse, neglect or unlawful conduct involving an educator and a student or minor.
• Possession, transfer or sale of a controlled substance.
• Illegal transfer, appropriation or expenditure of district funds or property.
• Attempt by fraudulent or unauthorized means to obtain or alter a professional certificate or license for the purpose of employment, promotion or additional compensation.
• Commission of a criminal offense or any part of a criminal offense on school property or at a school-sponsored event.
• Solicitation of sexual conduct or a romantic relationship with a student or minor.
• Violation of the assessment instrument security provisions as described in 19 Tex. Admin. Code §101.65(e),(g).

A report is required when the superintendent has reasonable cause to believe that misconduct has occurred and the educator either resigns or is terminated.

Districts may also report alleged misconduct even when it does not fall within one of the required report categories.

TEA prioritizes the severity of reported allegations based on the nature of the reports. Highest priority is given to allegations that present a risk to the health, safety or welfare of a student or minor, the parent of a student, or a professional colleague.

Upon receipt of an allegation of this type, investigative staff will “flag” the educator’s virtual certificate with a warning that an investigation is pending. Investigative warnings, like the certification itself, are viewable by the public, including potential employers, and normally remain on the educator’s certificate until the matter is concluded.

When the investigative staff intends to “flag” an educator’s virtual certificate, the investigator will notify the educator, so the educator has an opportunity to establish that no investigation is needed and that the warning should not be placed. This is not an opportunity to dispute the merits of the allegations—that comes later—but rather an opportunity to notify the investigative staff that a basic mistake has been made, such as mistaken identity.

The investigation

Once a report of alleged misconduct is received, a TEA investigator is assigned to the case. The investigator will mail notice to the educator and will typically begin requesting information from the educator’s district and all past districts where the educator has been employed. The investigator may also contact potential witnesses.

The investigation is not limited to the initial report. Sometimes an educator is cleared on the initial matter but sanctioned for unrelated actions uncovered during the investigation.

The rules require the investigator to provide an educator with an opportunity to “show compliance” with the rules and expectations—in other words, to informally tell his side of the story. This can either be done through an informal in-person conference or a written statement.

Prehearing settlement  

Once the investigator is satisfied that she has all the information she needs, she will either notify the educator that the investigation will be closed without pursuing any sanction, or she will offer the educator a settlement that includes some type of sanction that might be agreeable to the educator in order to avoid having an administrative hearing.

If SBEC and the educator cannot reach an agreement through informal conference, the matter will be turned over to a TEA attorney, who may file a formal complaint against the educator.

Formal complaint, hearing and board determination

If the investigation is not closed and no settlement is reached, a formal complaint can be filed against the educator. The complaint must state the specific allegations against the educator and the sanction sought. A copy of the complaint must be sent to the educator. Again, the copy is only sent to the address on file at SBEC, so it is critical that all educators keep this current.

Upon receiving a copy of the complaint, the educator has only a certain period of time to respond to the complaint with a formal answer. Failure to respond by the deadline can, again, result in the educator losing the right to defend herself, so it is very important not to ignore a complaint. The answer must also contain certain specific information and follow certain specific legal rules, so it is always a good idea for an educator to engage a competent attorney.  
 
Following a period where the two sides can request information from one another, called “discovery,” a hearing is held at the State Office of Administrative Hearings (SOAH) by an administrative law judge (ALJ). The hearing is basically a “mini-trial” in which witnesses are called, examined and cross-examined, and evidence is submitted by both parties for consideration by the ALJ.

After the hearing is concluded, the ALJ will prepare a document, named a “Proposal for Decision” (PFD). The PFD includes “findings of fact,” which are the ALJ’s determination of what occurred based on the testimony and evidence submitted, and “conclusions of law,” which are the ALJ’s determination of whether those facts represent a rules violation. The PFD will also include a recommendation as to whether a sanction should be assessed and, if so, what sanction would be appropriate. As implied by the name, the ALJ’s determination is not final—it is just her determination and recommendation to SBEC.

The PFD is later presented to SBEC, and both parties are provided an opportunity to make a presentation on what the board should do: either accept the ALJ’s findings and sanction recommendation, or reject it. The board then votes as to what the final outcome will be.

Although the board is legally limited in its ability to change the ALJ’s findings of fact, it is not unheard of for the board to reject the ALJ’s recommended sanction. There are also cases in which the ALJ has recommended no sanction but the board still decided to revoke the educators’ certification.      
 
After exhausting this process, an educator may appeal a sanction in court.