School Law - Practical Legal Issues - Educational Laws & Policies - Procedural Due Process - Employment Law - Labor Law - Professor William Allan Kritsonis

1. PRAIRIE VIEW A&M UNIVERSITY
PUBLIC SCHOOL LAW
ADMN 5023
William Allan Kritsonis, PhD
Professor
THE EMPLOYMENT RELATIONSHIPS
Submitted
By
Kendl Graham, James Mable, Brent Watson
July 13, 2009
INTRODUCTION

2. Employment Relationships is the relationship that exist between an employer and
the employee, it’s a relationship that is created by an employment contract. It is through
the employment relationship, however defined, that reciprocal rights and obligations are
created between the employee and the employer. The employment relationship has been,
and continues to be, the main vehicle through which workers gain access to the rights and
benefits associated with employment in the areas of labour law and social security. It is
the key point of reference for determining the nature and extent of employers.
For the purpose of this report, we will present five cases that relate to
Employment Relationships and the importance of the employment contract.
Case One
Court of Appeals of Texas,
San Antonio.
NORTH EAST INDEPENDENT SCHOOL DISTRICT, Appellant,
v.
John KELLEY, Appellee
No. 04-08-00162-CV.
LITIGANTS
Plaintiff’s-Appellant: John Kelly
Defendant-Appellees: North East Independent School District
BACKGROUND
Former school teacher filed suit against school district asserting claims for breach
of contract, quantum meriut, declaratory relief, and injunctive relief, after Commissioner
of Education denied his grievance seeking an additional day's pay. School district filed
plea to the jurisdiction, and parties filed competing motions for summary judgment. The
County Court at Law No. 7, Bexar County, David Rodriguez, J., granted summary
judgment to teacher. District appealed.
FACTS
Kelley was employed by the District pursuant to a written one-year probationary
contract. The contract provided that Kelley would be employed "on a 10-month basis for
the school year 2000-01, according to the hours and dates set by the district as they exist
or may hereafter be amended." The District adopted a teacher salary schedule that was
based on 187 working days and a work schedule that required teachers to work 187 days

3. during the 2000-2001 school year. The District required Kelley to attend a graduation
ceremony in addition to the 187 days he was required to work. Kelley filed a grievance
seeking an additional day's pay and appealed the District's decision to the Commissioner
of Education.
The Commissioner of Education concluded that Kelley's contract required him
*444 to work only 187 days; therefore, the contract did not require Kelley to work an
additional day by attending the graduation ceremony. The Commissioner also concluded,
however, that the District did not violate the contract by requiring Kelley to work an
additional day; instead, Kelley's claim would be a claim for quantum meruit over which
the Commissioner had no jurisdiction. Therefore, the Commissioner dismissed the appeal
for lack of jurisdiction.
Kelley then proceeded on two fronts. First, Kelley filed the underlying lawsuit in
Bexar County alleging claims for breach of contract, quantum meruit, declaratory relief,
and injunctive relief and requesting attorney's fees and costs. Kelley also filed an
administrative appeal of the Commissioner's decision in Travis County.
In the Bexar County lawsuit, the District filed a plea to the jurisdiction. The
parties also filed competing motions for summary judgment. The district court in Travis
County abated its case pending the outcome of the Bexar County lawsuit. The trial court
in Bexar County subsequently granted summary judgment in favor of Kelley, awarding
him: (1) damages for his breach of contract claim; (2) declaratory relief that the District
violated the contract; and (3) injunctive relief prohibiting the District from "illegal
conduct (as occurred in this case) in the future." The Bexar County trial court also
awarded Kelley attorney's fees and costs.
DECISION
The District contends that required Kelley to appeal the Commissioner's decision
to a district court in Travis County; therefore, the Bexar County court did not have
jurisdiction to consider Kelley's breach of contract claim. See Section 7.057(d) provides:
A person aggrieved by an action of the agency or decision of the commissioner may
appeal to the district court in Travis County. Kelley responds that the Bexar County court
had jurisdiction because the Commissioner dismissed his appeal for lack of jurisdiction.
Kelley's assertion ignores the basis for the dismissal by the Commissioner as stated in the
Commissioner's written decision. The Commissioner dismissed the appeal based on his
conclusion that the only claim available to Kelley was a quantum meruit claim. Any
complaint by Kelley that he had viable breach of contract claim had to be appealed to the
district court in Travis County pursuant to section 7.057. No other court had jurisdiction
to *445 consider the breach of contract claim. Similarly, a declaratory judgment action
seeking to determine whether the District's actions violated the contract could not be
brought in Bexar County because such a claim challenges the Commissioner's decision
that no such complaint existed Because the Bexar County court was without jurisdiction
to consider Kelley's breach of contract and declaratory judgment claims, it also was
without jurisdiction to award Kelley attorney's fees based on the judgment it entered on

4. those claims.
DICTA
Kelley contends that because he pled a quantum meruit claim in the alternative,
we can affirm the trial court's judgment on that basis. A party may recover under quantum
meruit only when there is no express contract covering the services rendered.
Accordingly, the trial court necessarily rejected the quantum meruit claim in
granting relief on the breach of contract claim. Because the existence of Kelley's quantum
meruit claim hinges on the non-existence of his breach of contract claim, and his breach
of contract claim is within the exclusive jurisdiction of the Commissioner under appeal in
Travis County, the Bexar County trial court was required to abate that claim until the
appeal of the administrative proceedings was concluded.
IMPLICATIONS
The trial court's judgment is reversed. Kelley's claims for breach of contract and
declaratory judgment are dismissed. The *446 cause is remanded to the trial court with
instructions to abate its proceedings with regard to Kelley's quantum meruit and
injunction claims pending the final resolution of Kelley's appeal of the Commissioner's
decision in Travis County.
Case Two
Court of Appeals of Texas,
Houston (14th Dist.).
GALVESTON INDEPENDENT SCHOOL DISTRICT, Appellant,
v.
Brent JACO, Appellee.
No. 14-08-00271-CV.
LITIGANTS
Plaintiff’s –Appellant: GALVESTON INDEPENDENT SCHOOL DISTRICT
Defendant-Appellees: Brent Jaco
BACKGROUND
Employee athletic director brought action against employer school district,
alleging the district took adverse personnel action against him in violation of the Texas
Whistleblower Act. District sought dismissal of action in plea to jurisdiction. The 56th
District Court, Galveston County, Lonnie Cox, J., denied plea. District appealed.

5. FACTS
Brent Jaco was employed by the District as Director of Athletics and
Extracurricular Activities. On or about November 9, 2005, Jaco learned that a student on
the Ball High School football team was in violation of a University Interscholastic
League ("UIL") rule regarding parent residency. Jaco discussed the possible UIL
violation with school officials, and with the District's approval, he submitted a written
report to the UIL on November 9, 2005 regarding the violation. As a result of the
violation, Ball High School's football team was barred from participating in the playoffs.
On December 16, 2005, the District reassigned Jaco to the position of athletic
trainer. On January 6, 2006, Jaco appealed the transfer through the District's
administrative grievance process. After a hearing, the District reinstated Jaco's job *479
position as Director of Extracurricular Activities, but not Director of Athletics. Thereafter,
the District did not offer Jaco his previous position of Director of Athletics or Director of
Extracurricular Activities for the 2006-07 school year. Instead, on May 1, 2006, the
District offered Jaco a term contract as a teacher.
On April 4, 2006, Jaco filed suit against the District, alleging violations under the
Texas Whistleblower's Act.The District initially filed a no-evidence and traditional
summary-judgment motion, which the trial court denied, and we dismissed the District's
interlocutory appeal for want of jurisdiction. The District then filed a plea to the
jurisdiction in which it asserted that (a) the District's actions do not constitute an adverse
employment act, (b) the UIL rule is not a law, and (c) the UIL is not an "an appropriate
law enforcement authority" as that term is used in Code. The trial court denied the plea,
and this interlocutory appeal ensued.
In three issues, the District challenges the trial court's denial of its plea to the jurisdiction,
arguing that (a) the pleadings and evidence show no waiver of immunity from suit, (b)
Jaco admitted he did not report a violation of law to an appropriate law enforcement
agency, and (c) Jaco admitted he never suffered a material adverse employment action.
Although the District argued for the first time in its reply brief that Jaco admits he failed
to exhaust his administrative remedies, we do not have jurisdiction to consider grounds
outside those raised in the plea to the jurisdiction.
DECISION
Because jurisdiction is a question of law, the trial court's ruling on a plea to the
jurisdiction is subject to de novo review. In a suit against a governmental unit, the
plaintiff must affirmatively demonstrate the trial court's jurisdiction by alleging a valid
waiver of immunity. To determine if the plaintiff has met that burden, "we consider the
facts alleged by the plaintiff and, to the extent it is relevant to the jurisdictional issue, the
evidence submitted by the parties. (stating that the plaintiff has the burden to plead facts
affirmatively showing that the trial court has subject-matter jurisdiction). We do not
consider the merits of the plaintiff's case, but focus instead on the pleadings and the
evidence pertinent to the jurisdictional inquiry. We construe the pleadings liberally in
favor of conferring jurisdiction. Nevertheless, a waiver of immunity must be clear and

6. unambiguous. Thus, we determine whether the plaintiff has pleaded a claim for which a
governmental unit has waived immunity by reading the pleadings broadly *480 and the
alleged waiver narrowly. If the pleadings do not contain sufficient facts to affirmatively
demonstrate the trial court's jurisdiction but do not affirmatively demonstrate incurable
defects in jurisdiction, the issue is one of pleading sufficiency, and the plaintiff should be
afforded the opportunity to amend. If, on the other hand, the pleadings affirmatively
negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without
allowing the plaintiff an opportunity to amend
In its first issue, the District argues that the trial court's denial of its plea is erroneous
because the District's substantive arguments, addressed here in its second and third issues,
are jurisdictional. The District contends in its second issue that the trial court erred in
denying its plea to the jurisdiction because "Jaco admits he did not report a violation of
law to an appropriate law enforcement agency, which is fatal to his assertion of a waiver
of governmental immunity and, generally, his claim." This statement encompasses the
District's three subsidiary arguments that (a) Jaco admits he did not make a "report," (b)
the UIL's parental residency rule is not a "law," and (c) the UIL is not the appropriate
agency to which a violation should be reported. The District argues in its third issue that
no adverse employment action occurred because it merely changed Jaco's title and he
accepted a contract as a teacher the following year. Before reaching the merits of these
arguments, we must first determine if they raise jurisdictional issues.
Although the District attempts to analogize a claim under the Whistleblower Act
to a claim under the Texas Tort Claims Act ("the TTCA"), there are significant
differences between the two. The TTCA creates a statutory scheme in which immunity to
suit and immunity to liability are coextensive. Consequently, the elements of a TTCA
claim can be considered jurisdictional, because evidence that challenges an element of
the claim necessarily challenges the trial court's subject-matter jurisdiction. A party
therefore can demonstrate the trial court's lack of jurisdiction over a TTCA claim by
establishing that the claim lacks merit.The Whistleblower Act, however, the waiver of
immunity from suit is broader than the waiver of immunity from liability.
In this case the court reached this conclusion even though it held that Brent could not
prevail on the merits because he did not suffer an adverse personnel action.
DICTA
The Court of Appeals, Eva M. Guzman, J., held that school athletic director was a
public employee who alleged a violation of the Whistleblower Act in manner as to
establish district's waiver of immunity. Affirmed.
IMPLICATIONS
The trial court concludes that the District has failed to raise a jurisdictional issue;
It was affirm the trial court's denial of its plea to the jurisdiction.
Case Three

7. Court of Appeals of Texas,
El Paso.
Marcelino FRANCO, Appellant,
v.
YSLETA INDEPENDENT SCHOOL DISTRICT, Appellee.
No. 08-07-00160-CV.
LITIGANTS
Plaintiffs- Appellants: Marcelino FRANCO
Defendant- Appellee: YSLETA INDEPENDENT SCHOOL DISTRICT
BACKGROUND
After school principal brought action asserting claims against school district for
alleged violations of the Texas Whistleblower Act, asserting that he was indefinitely
suspended from his job after he reported asbestos hazards to school district officials, the
school district moved to enforce a settlement agreement. No action was taken on the
motion, and the school district then moved for summary judgment, asserting that
principal breached the agreement by failing to dismiss the action. The 34th Judicial
District Court, El Paso County, granted the motion and entered summary judgment in
favor of the school district. School principal appealed.
FACTS
An enforceable contract is formed when the following essential elements are
satisfied between the parties to an agreement: (1) an offer; (2) an acceptance in strict
compliance with the terms of the offer; (3) a meeting of the minds; (4) each party's
consent to the terms; and (5) execution and delivery of the contract with the intent that it
be mutual and
binding.
In determining enforceability of a purported contract, whether the parties have
come to a “meeting of the minds,” and therefore acceptance of the offer, is measured
objectively according to what the parties said and did, and the parties' subjective thoughts
and beliefs do not control.
A genuine issue of material fact existed as to whether school principal formed a
binding settlement agreement with school district to release his whistleblower claims, or
whether board of trustees' approval of the settlement was an unmet condition precedent to
the formation of the agreement, and thus, summary judgment for school district was
precluded in the principal's whistleblower case.
The doctrine of “substantial performance” applies in breach of contract actions,

8. and allows a party who has only substantially performed its contract obligations to
recover for the opposing party's breach.
DECISION
The District focuses the arguments in its brief on evidence that it has substantially
performed its obligations as outlined in the March 27 letter, and that Mr. Franco has
breached the agreement by not dismissing the lawsuit. The doctrine of substantial
performance applies in breach of contract actions, and allows a party who has only
substantially performed its contract obligations to recover for the opposing party's breach.
DICTA
The court of appeals, David Wellington Chew, C.J. held that a triable issue existed
as to whether school principal formed a binding settlement agreement with the district to
release his claims. Reversed and remanded.
IMPLICATIONS
A settlement agreement is a contract, and is governed by principles generally
applicable under contract law. See Kosty v. S. Shore Harbour Cmty. Ass'n, Inc., 226
S.W.3d 459, 464 (Tex.App.-Houston [1st Dist.] 2006, pet. denied). An enforceable
contract is formed when the following essential elements are satisfied between the
parties to the agreement: (1) an offer; (2) an acceptance in strict compliance with the
terms of the offer; (3) a meeting of the minds; (4) each party's consent to the terms; and
(5) execution and delivery of the contract with the intent that it be mutual and binding.
Copeland v. Alsobrook, 3 S.W.3d 598, 604 (Tex.App.-San Antonio 1999, pet. denied).
Whether the parties have come to a “meeting of the minds,” and therefore acceptance of
the offer, is measured objectively according to what the parties said and did. Id. The
parties' subjective thoughts and beliefs do not control. Id. When the “meeting of the
minds” element is contested, it is a question for the fact finder.
Case Four
Court of Appeals of Texas,
Beaumont.
Jamie WILSON, Appellant
v.
WEST ORANGE-COVE CONSOLIDATED INDEPENDENT SCHOOL DISTRICT
AND O.T. Collins, Appellees.
No. 09-08-00068-CV.
LITIGANTS

9. Plaintiffs- Appellants: Jamie WILSON
Defendant- Appellee: WEST ORANGE-COVE CONSOLIDATED INDEPENDENT
SCHOOL DISTRICT AND O.T. Collins
BACKGROUND
Appellant, Jamie Wilson was employed by West Orange-Cove Consolidated
Independent School District (“District”) as an assistant principal under a two-year term
contract of employment. On or around March of 2007 Wilson was reprimanded for
unethical conduct by Superintendent O.T. Collins. Wilson appealed the reprimand
through Level IV of the district's grievance policy, but did not pursue an administrative
appeal of the School Board's final decision to the Commissioner of Education.
FACTS
Wilson was reprimanded for allegedly viewing, during school hours, a videotaped
deposition that Collins gave in an unrelated lawsuit that was then pending against the
District. After the reprimand was given to Wilson, a copy was placed in her personnel
file.
The Commissioner of Education is authorized to review claims in which the
person “is aggrieved by” ... the “ school laws of this state”; or actions or decisions by a
school board that violate either school laws of the state or a provision of a written
employment contract between a school district and an employee of the district if the
violation would cause the employee to suffer monetary harm. TEX. EDUC.CODE ANN.
§ 7.057(a) (Vernon 2006). The term “ school laws of this state” is defined to include all
statutes contained in Titles 1 and 2 of the Education Code and “rules adopted under those
titles.”
DECISION
Wilson's declaratory judgment action also sought a declaration that her state
constitutional rights were violated. A declaratory judgment that the school district
violated Wilson's constitutional rights would serve no purpose. Such a declaration would
neither work to enjoin the school district from further suspending Wilson, nor would it
mandate reinstatement under her employment contract because she no longer has an
employment contract with the district. A judgment in the underlying case would have no
practical legal effect upon the parties; it would do no more than attempt to “avoid an
event which [has] already passed beyond recall.” Houston Indep. Sch. Dist., 617 S.W.2d
at 767.Wilson made no other claims and sought no other relief against the defendants;
therefore, the controversy between the parties has ceased to exist.
DICTA
Appeal of school district's former employee regarding trial court's dismissal of

10. action seeking declaratory and injunctive relief against district was moot. Former
employee no longer had employment contract with the district, and thus any injunction
prohibiting further suspension or order for reinstatement under employment contract was
no longer possible relief. Also, a declaratory judgment that the school district violated
former employee's constitutional rights would serve no purpose.
IMPLICATIONS
Ms. Wilson’s claim of a violation of her constitutional right’s in my opinion are
null and void because her evaluations reflect that her performance as a teacher are below
expectation which was the basis for her contract to be nonrenewable.
Case Five
Court of Appeals of Texas,
Beaumont.
Nora Kathryn CONROY, Appellant
v.
NACOGDOCHES INDEPENDENT SCHOOL DISTRICT, Appellee.
No. 09-05-362 CV.
LITIGANTS
Plaintiffs-Appellant: Nora Kathryn CONROY
Defendants-Appellee: NACOGDOCHES INDEPENDENT SCHOOL DISTRICT
BACKGROUND
At the time Conroy filed her petition, she had been employed as a special
education diagnostician by NISD for three years. In November 2002, Conroy and sixteen
other special education staff members at NISD filed and signed a complaint with the TEA
reporting violations of state and federal law in the NISD special education program. The
TEA conducted an initial investigation of the special education program. In January 2003,
the TEA sent NISD Superintendent Dr. Tony Riehl a letter advising him of the allegations
contained in the complaint and directing the district to take corrective action. In March
2003, in a letter to the United States Department of Education's Office of Civil Rights,
Conroy again complained of violations of state and federal regulations in the special
education program. Twelve of the original sixteen signatories to the TEA complaint also
signed this letter.
In August 2003, NISD's Special Education Director Debbie Walker informed
Conroy she would be transferred from the elementary school to the high school for the

11. 2003-2004 school year. Conroy had previously told Walker that Conroy did not want to
go to the high school and Conroy's specialization was in working with very young
children. In October 2003, while working at the high school, Conroy received a directive
from High School Principal Elizabeth Ballenger instructing her to follow the admission,
review, and dismissal procedures. Conroy brought suit against NISD under the Texas
Whistleblower Act alleging her transfer to the high school and the October 2003 directive
were retaliation for her reports to the TEA and U.S. Department of Education.
FACTS
Appellant Nora Kathryn Conroy, a diagnostician employed in the Nacogdoches
Independent School District's special education department, filed suit against the school
district under the Whistleblower Act. Conroy appeals the trial court's final order granting
NISD's no-evidence motion for summary judgment. NISD cross-appeals the trial court's
order denying NISD'S motion to transfer venue. We affirm the trial court's judgment as
modified.
DECISION
For Conroy to prevail on her claim, she must establish (1) she is a public
employee; (2) she acted in good faith in making her report; (3) the report involved a
violation of law; (4) the report was made to an appropriate law enforcement authority;
and (5) she suffered retaliation as a result of making the report. Employees filing a
whistleblower action must prove all elements of their claim by a preponderance of the
evidence. Conroy argues the trial court erred in granting NISD's no-evidence motion for
summary judgment because more than a scintilla of evidence established “causation”
between Conroy's report of violations and her transfer and the October 2003 directive. To
show causation, a public employee must demonstrate that after he or she reported a
violation of the law in good faith to an appropriate law enforcement authority, the
employee suffered discriminatory conduct by his or her employer that would not have
occurred when it did if the employee had not reported the illegal conduct.
DICTA
The Court of Appeals, Beaumont, Judge David V. Wilson ruled that Conroy failed
to present more than a scintilla of evidence to support the causation element to her claim
and we affirm the trial court's judgment as modified. We need not address NISD's cross
appeal.
IMPLICATIONS
A whistleblower is a person who publicly alleges concealed misconduct on the
part of an organization or body of people, usually from within that same organization.
This misconduct may be classified in many ways; for example, a violation of a law, rule,
or regulation. The Appellant was not successful in her suit because of lack of evidence
regarding reasons for her termination and dismissal.