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.
For example: One common but not-required report is that an educator abandoned his employment contract with the district without good cause, which means the educator left before the end of the school year without being released by the district and did not have a good reason for doing so. SBEC regularly sanctions educators for contract abandonment.
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.
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.
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.