EMPLOY: Board could reject examiner’s ruling
Continued from A1
In his recommendation, which was signed July 13, the hearing examiner said the district can breach a contract only because of good cause, such as poor performance or financial exigency.
William Sterling Jr. wrote that the district “acted arbitrarily, capriciously and unlawfully when it applied its arbitrary and capricious program change reason for discharge of Decierdo’s contract.”
The examiner’s recommendation was that the board should change its policies and keep Decierdo.
The school board on Monday must decide whether to accept or reject the recommendation; the case could be appealed to the Texas Education Agency and eventually be heard in court.
The district disagrees with the recommendation, said Mel Waxler, the district’s general counsel.
“To us this case is not about an individual,” Waxler said. “To us this case is about a superintendent’s right to recommend and a board’s authority to eliminate positions organizationally that no longer fit in the organizational structure of the district.”
The ruling could have statewide implications, said Decierdo’s attorney, Robert Notzon, because other districts — including Houston, Dallas, Round Rock, Pflugerville, Georgetown and Manor — have policies similar to Austin’s.
But Texas Education Agency spokeswoman Debbie Ratcliffe said, “It is too early to tell whether this could have implications beyond Austin.”
The Austin school board “could accept the hearing examiner’s recommendation, modify it or reject it,” Ratcliffe said. The board’s action could prompt an appeal to the state education commissioner, “so it’s hard to say what the implications are yet,” she said.
District officials will meet with Notzon on Wednesday to try to hammer out an agreement before Monday’s school board meeting. If they reach an agreement, the district could bypass the examiner’s recommendation altogether, Waxler said. But the school board would still need to approve any agreement next week, he said.
Louis Malfaro, president of Education Austin, which represents about 4,000 of the district’s teachers and other employees, said the examiner’s recommendation is good news. Although Education Austin supported budget cuts and eliminating positions, the organization was against laying off any employees.
“It’s a positive thing that the Texas Education Agency is upholding the sanctity of the employment contract and saying you can’t arbitrarily decide you don’t need someone anymore after entering into a legally binding employment contract with them,” Malfaro said.
“This is going to throw a monkey wrench in other districts’ policies,” he said. “There are districts all over the state that have policies similar to AISD, and this hearing examiner’s reading of the law is you can only break contract for two reasons. Under the (recommendation), you can’t get rid of someone because you’re getting rid of the program.”
Decierdo’s position was among those that an independent consulting firm recommended the district cut in a financial efficiency study.
Last summer, incoming Superintendent Meria Carstarphen asked trustees to approve reorganizing toplevel administrative jobs. Carstarphen got permission to eliminate 12 jobs and add six, but school board members delayed voting on a request to cut Decierdo’s position.
In 2008, Decierdo alleged that she was being mistreated and discriminated against by her supervisor.
In 2009, she filed grievances citing discrimination and retaliation after she was disciplined for alleged misconduct. There was a hearing before the school board, and the board last fall sided with administrators.
Being included among the recent job cuts continues the retaliation, Notzon said.
Notzon also said that Decierdo is considering suing the district next month, alleging race discrimination, retaliation and a hostile work environment.
Those allegations will also be discussed during Wednesday’s meeting.
“If we’re going to achieve any resolution, it’s not going to be piecemeal. It would address all issues,” Waxler said, adding that the district’s decision to terminate Decierdo was “not personal.”