Reporting in the Age of Uncertainty:

Chapter 21

Amanda Moore

Walsh Gallegos Kyle Robinson & Roalson P.C.

Under Texas law, the “mission of the public education system…is to ensure that all Texas children have access to a quality education that enables them to achieve their potential and fully participate now and in the future in the social, economic, and educational opportunities of our state and nation.”1 Texas educators are expected to maintain “the dignity of the profession,” “respect and obey the law, demonstrate personal integrity, and exemplify honesty and good moral character.”2 Reporting educator misconduct may seem like a daunting task for many administrators, however, the law requires that school districts take the lead in ensuring

1 Tex. Educ. Code §4.001(a)

2 19 Tex. Admin. Code §247.1(b)

3 Tex. Educ. Code §21.006

4 Tex. Educ. Code §21.006(b)(3)

5 19 Texas Admin. Code §249.14(d)(3)(A) that this statutory mandate is met.

Reporting Educator Misconduct

Under Texas Education Code §21.006, school districts are required to report to the State Board of Educator Certification (SBEC) if an educator is terminated and there is evidence that the educator engaged in the following conduct:3

(A) abused or otherwise committed an unlawful act with a student or minor;

(A-1) was involved in a romantic relationship with or solicited or engaged in sexual contact with a student or minor;

(B) possessed, transferred, sold, or distributed a controlled substance, as defined by Chapter 481, Health and Safety Code, or by 21 U.S.C. Section 801 et seq.;

(C) illegally transferred, appropriated, or expended funds or other property of the school district, district of innovation, charter school, other charter entity, service center, or shared services arrangement;

(D) attempted by fraudulent or unauthorized means to obtain or alter a professional certificate or license for the purpose of promotion or additional compensation; or

(E) committed a criminal offense or any part of a criminal offense on school property or at a school-sponsored event.

When faced with a possible adverse employment action, educators may choose to resign a position instead of challenging a nonrenewal or termination. Some educators mistakenly believe that allegations of misconduct will cease to exist with the submission of a resignation. In cases that focus purely on employment performance, this belief would likely be a valid one. However, in cases where an educator resigns and there is evidence that the educator engaged in the misconduct referenced in Texas Education Code §21.006, the administration is still required to report the conduct to SBEC.4 In fact, before accepting the resignation, the school district is required to notify the certificate holder that “a report will be filed and that sanctions against his or her certificate may result as a consequence.”5 The report is not limited to misconduct with students, as it could also pertain to alleged violations of assessment instrument security procedures.6

IMPORTANT TIMELINES & RESPONSIBILITIES

The law is specific on which administrators are required to report educator misconduct. The phrase, “superintendent or director of a school district, district of innovation, open-enrollment charter school, regional education service center, or shared services arrangement” is referenced several times under the law as one of the individuals who are ultimately responsible for the submission of required reports.7

In addition to reports of misconduct, a superintendent is required to notify SBEC if the school district receives information that an “educator employed by or seeking employment by the school district” has a criminal record and the school district obtained this information by “a means other than the criminal history clearinghouse.”8

In cases where there is evidence that the educator abused a student or was involved in a romantic relationship, the school district is required to complete an investigation even if the educator resigned before the completion of the investigation.9

The timeline for these reports is extremely short and can be easily missed if not done promptly or correctly. The principal of a school district, district of innovation, or open-enrollment charter school campus must notify the administration within seven (7) business days of the educator’s

6 Tex. Educ. Code §21.006(b)(4) termination or resignation “following an alleged incident of misconduct” or if “the principal knew about an educator’s criminal record.”10 The superintendent or the director is then required to file a report with the State Board of Educator Certification within seven (7) business days after receiving the report from the principal.11 The report must be in writing and on a prescribed form.12

There are also certain instances where a report to SBEC is not required once an investigation is completed. School districts may need to consult with legal counsel, if necessary, to confirm this decision.13

Considering the timeframe mandated by the statute, some administrators may be inclined to report misconduct unless the school district is certain that a full investigation can take place within a short period of time. Much care should be taken in making sure that unsubstantiated allegations are promptly resolved. Comparable to other mandatory reporting requirements under the law, a superintendent or designated administrator who makes a good faith report “is immune from civil or criminal liability that might otherwise be incurred or imposed.”14

The penalty for failing to file a report under Chapter 21 is quite severe. SBEC is allowed to impose an administrative penalty of $500 to $10,000 against the responsible individual and it may limit the renewal of an educator’s certification until the penalty is paid.15 This penalty can apply to both the principal and the superintendent.16 In addition to any other applicable penalty, a person who fails to report an educator’s criminal record or alleged incident of misconduct with the “intent to conceal” may be charged with a state jail felony.17 Attempting to conceal information about an allegation is not advisable nor is it permitted under the law. Furthermore, SBEC “may revoke the certificate of an administrator” if it determines that an administrator employed an applicant for a certified position and the administrator was aware “that the applicant had been adjudicated for or convicted of having an inappropriate relationship with a minor.”18

An administrator should consult with the school district’s legal counsel regarding any compliance issues that may arise on any specific case. Due to the time constraints of the reporting process and the possible consequences of inaction, administrators should be prepared to act quickly once they receive notice of an allegation. Efficiency and knowledge of the reporting process will help to ensure fairness to those involved in the investigation, and compliance for those individuals responsible for reporting under the law.

7 Tex. Educ. Code §21.006(b)(b-1)(c-2); See also “Superintendent Reporting Requirements,” https://tea.texas.gov/texas-educators/investigations/ superintendent-reporting-requirements

8 Tex. Educ. Code §21.006(b)(1) (See also Tex. Educ. Code §21.009 - Administrators must also require that applicants complete “a pre-employment affidavit disclosing whether the applicant has ever been charged with, adjudicated for, or convicted of having an inappropriate relationship with a minor.”)

9 Tex. Educ. Code §21.006(b-1)

10 Tex. Educ. Code §21.006(b-2)(1)(2)

11 Tex. Educ. Code §21.006(c)

12 Tex. Educ. Code §21.006(c-1)(1)(2)

13 Tex. Educ. Code §21.006(c-2)(1)(2)

14 Tex. Educ. Code §21.006(e)

15 Tex. Educ. Code §21.006(i)

16 Id

17 Tex. Educ. Code §21.006(j)

18 Tex. Educ. Code §21.009(e)