Ritter.tea.state.tx.us



DOCKET NO. 004-LH-0909

DALLAS INDEPENDENT § Before William E. Hartsfield

SCHOOL DISTRICT §

§

v. § CERTIFIED HEARING EXAMINER

§

HARRY HANEY § TEXAS EDUCATION AGENCY

RECOMMENDATION OF THE CERTIFIED HEARING EXAMINER

Statement of the Case

Dallas Independent School District (Petitioner or DISD) in a letter dated August 11, 2009, recommended the termination of Harry Haney (Teacher or Mr. Haney) for good cause pursuant to Board Policy DF (Local) and DC (local).

|Date Appealed: |August 26, 2009 |

|45-Day Waiver: |The parties agreed to extend the time for the Recommendation for 45 days to December 9, 2009. |

|Preliminary Hearing: |A preliminary hearing via telephone occurred on September 17, 2009 and established a schedule. |

|Pre-hearing |Both parties filed pre-hearing statements. |

|Statements: | |

|Discovery: |The parties completed all discovery prior to the hearing. |

|Hearing: |A closed hearing was held on November 2 and 3, 2009 at Hearing Room, Dallas ISD Human Development Office, Portable |

| |Bldg. No. 3, 3709 Ross Avenue, Dallas, Texas 75204. |

|DISD : |Shirley Boss, Director--Human Relations and Support |

|DISD Attorney: |Veretta Frazier, Esq., |

| |West & Associates, |

| |320 S. R.L. Thornton, Suite 300, |

| |Dallas, TX 75203. |

| |Ph. 214 941 1881 ext. 317 |

| |Email veretta.f@ |

|Teacher: |Harry Haney |

|Teacher's Attorney: |Mr. James Paul Barklow, Jr., Esq. |

| |6116 N. Central Expressway, Suite 500, |

| |Dallas, Texas 75206. |

| |Ph. 214 373 6655 |

| |Email lawbarkoffice@ |

|Court Reporters: |Rachel D. Chavez and Zunie Stovall of Stovall Reporting & Video, Inc. 1414 Creekvew Drive |

| |Lewisville, Texas 75067 |

| |Ph. 972 221 0331 |

|Significant |The Texas Rules of Evidence (TRE) were applied and only admissible evidence was considered. Based on TRE 202 and the|

|Evidentiary |request of DISD’s Counsel, Judicial Notice was taken of California law as detailed below. Based on an objection by |

|Rulings: |Teacher’s Counsel and TRE 403, a portion of DISD’s Exh. 3, namely the portion under tab W1-3 containing Bates |

| |stamped pages 28 through 43 were not admitted. Based on the request of Teacher’s Counsel, witnesses were excluded |

| |pursuant to TRE 614. Objections to DISD’s Exh. 3 Tab W1-1 and Tab W5-1, Exh. 8, Exh. 11 and Exh. 15 were overruled |

| |and the exhibits admitted based on either falling outside the definition of hearsay in TRE 801 or exceptions to the|

| |hearsay rule contained in TRE 803 including (6) and (8). The attorneys were permitted to make a proffer of excluded |

| |evidence. Portions of DISD Exh. 15 were redacted to protect the identities of students. |

|Basis Of Hearing: |Appeal of Recommendation of Termination of Teacher Contract |

|Recommendation: |The Board of Trustees of Dallas Independent School District should approve the proposal/recommendation to terminate |

| |Harry Haney’s employment contract for 2009-2010. |

Analysis

While not every legal and factual argument asserted is addressed, each was considered. Not every pleading, legal theory, legal standard, allegation or fact is recited, but all were considered. Not every time that a witness corrected or altered his/her testimony, and not every time a witness refreshed his/her recollection has been noted but all were considered. Not all contradictions in the evidence are recited, but all were considered. Every admitted exhibit was read. Implicit in every factual determination is an evaluation of the witnesses' credibility.[1] Any evidence admitted for a limited purpose was considered only for that purpose. Any evidence to which an objection was sustained was disregarded as was any evidence which was presented but subsequently determined to be inadmissable. Government of Canal Zone v. Jimenez, 580 F.2d 897, 898 (5th Cir. C.Z. 1978) cert. denied 439 U.S. 990 (1978) ("[a] judge, sitting as a trier of fact, is presumed to have rested his verdict only on the admissible evidence before him and to have disregarded that which is inadmissible."); Tex. Educ. Code §21.255(e) (“The hearing examiner's findings of fact and conclusions of law shall be presumed to be based only on admissible evidence.”).

The DISD bears the burden of proof by a preponderance of the evidence. Tex. Educ. Code §21.256 (h).

Findings of Fact

After due consideration of the evidence, including matters officially noticed, in my capacity as Certified Hearing Examiner, I make the following Findings of Fact (citations to evidence are not exhaustive or exclusive, but are intended to indicate some basis for the particular finding of fact).

Mr. Haney filed an application for employment as a teacher with DISD through the internet.(DISD Exh. 3 pp. 69-71).

Mr. Haney believed he truthfully answered the question “Have you ever: BEEN CONVICTED OF A FELONY OR ANY OFFENSE INVOLVING MORAL TURPITUDE?” when he answered No. (Tr. 2320) (Capitalization in original).

Mr. Haney understood the question “Have you ever: BEEN CONVICTED OF A FELONY OR ANY OFFENSE INVOLVING MORAL TURPITUDE?” to refer only to a felony involving moral turpitude when he answered No to that question. (Tr. 233, 249, 257) (Capitalization in original).

Mr. Haney, based on his experience, believed that offenses involving moral turpitude did not refer to his conviction. (Tr. 233, 249-50).

Mr. Haney answered inaccurately the question “Have you ever: BEEN CONVICTED OF A FELONY OR ANY OFFENSE INVOLVING MORAL TURPITUDE?” when he answered No. (DISD Exh. 3 p. 69) (Capitalization in original).

Mr. Haney’s answer of No to the question “Have you ever: BEEN CONVICTED OF A FELONY OR ANY OFFENSE INVOLVING MORAL TURPITUDE?” was incomplete because he misunderstood the question. (DISD Exh. 3 p. 69) (Tr. 134, 233).

Mr. Haney’s answer of No to the question “Have you ever: BEEN CONVICTED OF A FELONY OR ANY OFFENSE INVOLVING MORAL TURPITUDE?” was untrue because he misunderstood the question. (DISD Exh. 3 p. 69) (Tr. 134, 233).

The application contained the following statement: “I hereby certify that by accepting the terms of this agreement and pressing the NEXT button below, I intend for such submission to have the same force and effect as the use of my manual signature. I hereby affirm that all information provided on this form is true and accurate. I also understand that an employment contract based upon information contained in the application which later proves to be false or incomplete shall result in the contract becoming null and void or terminated.” (DISD Exh. 3 p. 71).

In answer to the question on the application “Have you ever: ... RECEIVED PROBATION, DEFERRED ADJUDICATION, PLEADED NO CONTEST, OR SERVED TIME IN PRISON?” Mr. Haney stated “Charge: assult(sic) Date: 11/12/1984 Disposition: Servied (sic) time Court & County/State: Supierer (sic) Court Santa Cruz/CA.” (DISD Exh. 3 pp. 69-70) (Tr. 233-34).

Mr. Haney’s answer to the question on the application “Have you ever: ... RECEIVED PROBATION, DEFERRED ADJUDICATION, PLEADED NO CONTEST, OR SERVED TIME IN PRISON?” did not state that the charge was a felony. (DISD Exh. 3 pp. 69-70) (Tr. 133-34).

Mr. Haney provided DISD with his correct full name, date of birth, Texas driver’s license number and social security number. (DISD Exh. pp. 62 and 64) (Tr. 102-103).

Mr. Haney completed a form authorizing a criminal background check. (DISD Exh. 5).

Mr. Haney indicated on DISD Exhibit 5 that he had “been CONVICTED OR PLEAD GUILTY before a court for any federal, state, or municipal criminal offense” (Capitalization in original).

Mr. Haney indicated on DISD Exhibit 5 that the offense was an “assult,” (sic) the date of conviction of “11/15/85," in the city of “Santa Cruz,” in the county of “Santa Cruz,” and in the state of “CA.” (Tr. 80).

DISD Exhibit 5 does not indicate that the offense was a felony. (Tr. 79, 109-110).

DISD performed a criminal background check in or about August 2006 through a third party vendor retained to perform criminal background checks for Mr. Haney. (Tr. 78-79).

The third party vendor’s report to DISD in or about August 2006 of Mr. Haney’s criminal history check showed no felony and no crime involving moral turpitude. (DISD Exh. 6 and 7) (Tr. 82, 97).

The third party vendor’s report to DISD in or about August 2006 of Mr. Haney’s criminal history check reflected a search of Santa Cruz, California. (DISD Exh. 6 and 7).

Ms. Wilson, a DISD staffing manager, received the documents concerning Mr. Haney to determine whether or not he was eligible for employment by DISD (Tr. 71, 75-76).

Ms. Wilson or her staff collect the information to perform the criminal history checks and receive the results of the checks. (DISD Exh. 4, Exh. 5, Exh. 6 and Exh. 7) (Tr. 75-76, 79).

The criminal history check results did not match the information supplied by Mr. Haney on DISD Exhibit 3 pages 69-70 or DISD Exhibit 5. (Tr. 99, 102).

Ms. Wilson saw that the criminal history check results did not match the information supplied by Mr. Haney. (Tr. 99, 102).

After Ms. Wilson saw the mismatch of information, a second criminal history check was performed with the same results–no record found. (DISD Exh. 7) (Tr. 100-102).

The second criminal history check was performed as a matter of course, not because of the mismatch of information. (Tr. 100-102).

Based on Mr. Haney’s application (DISD Exh. 3 pp. 69-71) and the form authorizing a criminal background check (DISD Exh. 5) Ms. Wilson understood that Mr. Haney had a criminal conviction but that the conviction did not involve a felony. (Tr. 110).

Jose Rodriguez, a recruiter for DISD, interviewed Mr. Haney. (Tr. 38-39).

Mr. Rodriguez did not recall the specifics of his interview with Mr. Haney. (Tr. 46, 58-59).

Mr. Rodriguez did not know the meaning of “received probation,” “deferred adjudication,” or “pleaded no contest,” i.e., he did not know if those phrases meant a conviction. (Tr. 53-54).

Mr. Rodriguez did not know the meaning of “received probation,” “deferred adjudication,” or “pleaded no contest,” as used in DISD’s policies. (Tr. 53-56).

Mr. Rodriguez’s notes of the interview with Mr. Haney did not reflect any discussion of a felony conviction with Mr. Haney. (Tr. 46, 68-69).

Mr. Rodriguez’s practice was to make notes of significant facts provided in interviews. (Tr. 33, 68-69)

If Mr. Rodriguez had understood that Mr. Haney’s past conviction was a felony conviction that would have been a significant fact he would have included in his notes. (Tr. 46, 58).

The information supplied by Mr. Haney on his application did not indicate to Mr. Rodriguez that Mr. Haney had been convicted of any felony. (Tr. 47, 56).

Mr. Haney, was hired by DISD in August 2006 as a teacher. (DISD Exh. 3 p. 59).

DISD extended an offer of employment to Mr. Haney based on the truth of the information he provided in his application. (DISD Exh. 3 pp. 69-71, Exh. 4 and Exh. 13) (Tr. 78, 122-23).

DISD extended an offer of employment to Mr. Haney based on the accuracy of the information he provided in his application. (DISD Exh. 3 pp. 69-71, Exh. 4 and Exh. 13) (Tr. 78).

DISD extended an offer of employment to Mr. Haney based on the completeness of the information he provided in his application. (DISD Exh. 3 pp. 69-71, Exh. 4 and Exh. 13) (Tr. 78).

Annual criminal background checks of Mr. Haney were not found among DISD records. (Tr. 123-124, 137, 140).

In 2009, an anonymous caller advised DISD that Mr. Haney had spent eight years in San Quentin Prison in California for attempted murder. The caller relayed that Mr. Haney had told the caller Mr. Haney had informed DISD of his conviction but it hired him anyway. (DISD Exh. 3 p. 15).

In 2009, in the course of DISD’s investigation of the anonymous call, DISD obtained records indicating charges filed in California involving assault with a firearm. (DISD Exh. 8 p. 192).

In 2009, in the course of DISD’s investigation of the anonymous call, Mr. Haney submitted documents to DISD regarding the California conviction. (DISD Exh. 3 pp. 81-87).

The documents submitted to DISD by Mr. Haney in 2009 regarding the California conviction reflect that he was charged with a felony based upon an assault with a firearm. (DISD Exh. 3 p. 81).

The documents submitted to DISD by Mr. Haney in 2009 regarding the California conviction reflect that he was convicted of a felony of an assault with a firearm. (DISD Exh. 3 pp. 83-87).

Mr. Haney had been convicted of a felony assault. (DISD Exh. 3 pp.83-87).

Mr. Haney and DISD entered into an employment contract for the 2009-2010 school year. (DISD Exh. 2) (Tr. 120-121).

On August 11, 2009, DISD sent Mr. Haney notice (DISD Exh. 1) that it was recommending that his employment be terminated for good cause for the following specific reasons:

• You have a felony conviction(s).

• You failed to disclose a felony conviction on your application.

• The District may use criminal background information of an employee if the employee's crime is determined to adversely affect the District or if it is demonstrated the employee could be a danger to staff, students, or the general public.

• An employee who did not disclose a prior criminal conviction when requested at the time of employment may be immediately recommended for termination.

• The District may terminate an employee convicted of a felony or misdemeanor if the crime adversely affects the mission of the District.

(Tr. 119-120).

Key applicable DISD Board policy stated:

For the purposes of this policy, "conviction" shall include a probation or deferred adjudication, a finding of guilt or acceptance by the court of a plea of guilty, or nolo contendere.

Persons charged with a criminal offense that has been dismissed through deferred adjudication will be considered for employment with the District, except when the charge was for capital murder, murder, voluntary manslaughter, involuntary manslaughter, any felony theft offense, indecency with a child, injury to a child or elderly or disabled individual, kidnapping, aggravated kidnapping, aggravated sexual assault, sexual assault of a child, aggravated robbery, or any felony where a deadly weapon was used or exhibited or for any felony related to the manufacturer [sic] or delivery of marijuana, a controlled substance or a dangerous drug, or any other crime that adversely affects the mission of the District.

No one convicted of a felony or any misdemeanor involving moral turpitude will be considered for employment in the District. "Moral turpitude" is an act of baseness, vileness, or depravity in the private or social duties outside the accepted standards of decency and that shocks the conscience of an ordinary person.

An applicant who has a criminal record that would preclude employment with the District using the criteria listed above may appeal to the Legal Review Committee made up of the District's general counsel, director of employee relations, and director of human resource services. The committee will assess the records of potential employees. This appeal to the review committee is not available to applicants whose criminal record includes a conviction, deferred adjudication, or plea of guilty or nolo contendere for the offense of capital murder, murder, indecency with a child, injury to a child, elderly or disabled individual, aggravated kidnapping, aggravated sexual assault, sexual assault of a child, aggravated robbery, or any felony where a deadly weapon was used or exhibited or for any felony related to the manufacture or delivery of marijuana, a controlled substance, or dangerous drug.

Any applicant for employment who has been placed upon deferred adjudication shall be treated as if convicted of the crime and subject to the recommendation process established herein.

However, such person may not be denied employment solely because of the deferred adjudication. Rather, the underlying facts that led to the deferred adjudication shall be examined prior to any recommendation to employ.

An applicant shall not be employed by the District if he or she fails to disclose on the employment application—or when questioned regarding criminal convictions—any criminal conviction, crime, or deferred adjudication (or similar type of decree); or misrepresents any information regarding any such conviction, crime, or deferred adjudication (or similar type of decree).

The District may use the information obtained under this policy to discharge the employee if the employee's crime is determined to adversely affect the District or if it is demonstrated that the employee could be a danger to District staff, students, or the general public. The determination shall be made by applying the criteria set forth below.

The Superintendent's Legal Review Committee shall assess the records of employees found to have criminal records that would bar them from employment with the District. The committee will use the following guidelines to determine if an employee should be recommended for termination based on his or her criminal record:

1. An employee who did not disclose a prior criminal conviction when requested at the time of employment may be immediately recommended for termination. At any hearing to determine whether to terminate the employee, the District shall have the burden to establish that the failure to disclose or the misrepresentation was material. However, there shall be a rebuttable presumption that the failure to disclose or the mis- representation was intentional.

2. If the employee was not asked to divulge any previous convictions as a prerequisite to employment, a recommendation for termination will be based on the same criteria as required for applicants.

3. If a conviction involving a felony or misdemeanor involving moral turpitude is discovered subsequent to employment, a recommendation for termination will be based on the same criteria as required for applicants as found at GOVERNING CRITERIA FOR EMPLOYMENT DECISIONS, above.

Any employee placed on deferred adjudication may be recommended for termination based upon the underlying facts that led to the deferred adjudication. For the purposes of any termination hearing, the facts to which the individual pleaded in order to obtain the deferred adjudication shall be presumed to exist and be true and correct.

The District may suspend or terminate the employment of any person convicted of a felony or misdemeanor if the crime directly relates to the duties and responsibilities of the individual or directly relates to, or adversely affects, the mission of the District.

(DISD Exh. 10).

Discussion

To terminate Mr. Haney’s Contract, DALLAS ISD must establish good cause.

Good cause for discharging an employee is defined as the employee’s failure to perform the duties in the scope of employment that a person of ordinary prudence would have done under the same or similar circumstances. An employee’s act constitutes good cause for discharge if it is inconsistent with the continued existence of the employer-employee relationship.

While Mr. Haney intended to answer application questions completely, accurately and truthfully, his intent does not prevail over the fact that his answers were not complete, accurate or truthful. Similarly, errors in background reports and the fact that Dallas DISD did not discover for some time that Mr. Haney’s answers were not complete, accurate or truthful do not preclude his termination for good cause. Specifically, there was not a waiver by DISD that precludes Mr. Haney’s termination for good cause.

The DALLAS ISD (DF Local and DC Local) enumerates acts or actions providing good cause for termination. The preponderance of the evidence in this case substantiates that good cause.

DALLAS ISD has established good cause to terminate Mr. Haney’s employment based upon the grounds stated in DISD Exhibit 1.

Conclusions of Law

After due consideration of the evidence, including matters officially noticed, in my capacity as Certified Hearing Examiner, I make the following Conclusions of Law (citations to court decisions, Texas Commissioner of Education Decisions or Texas Certified Hearing Examiners’ Recommendations are not exhaustive or exclusive, but are intended to indicate some basis for the particular conclusion).

Jurisdiction in this case is proper under Texas Education Code, Section 21.211(a)(1).

Mr. Haney has a contract as a teacher for the school year 2009-2010 with the DISD.

Mr. Haney could be dismissed for cause. Tex. Educ. Code §21.211(a)(1).

Good cause for discharging an employee is defined as the employee’s failure to perform the duties in the scope of employment that a person of ordinary prudence would have done under the same or similar circumstances. An employee’s act constitutes good cause for discharge if it is inconsistent with the continued existence of the employer-employee relationship. Lee-Wright, Inc. v. Hall, 840 S.W.2d 572, 580 (Tex. App.-Houston[1st Dist.] 1992, no writ); Toussaint v. Dallas ISD, Docket No. 071-R2-0708, n. 2 (Comm’r Ed. 2008) (“The definition of good cause for the termination of term contracts is found at Lee-Wright, Inc. v. Hall, 840 S.W.2d 572, 580 (Tex. App.-Houston [1st Dist.] 1992, no writ)”); Tave v. DISD, Docket No. 067-R2-501, p.2 (Comm’r Ed. 2001) (“While a term contract may be terminated for ‘good cause,’ the Texas Education Code provides no definition of ‘good cause’ with respect to term contracts. TEX. EDUC. CODE § 21.211. The Commissioner has used the definition of "good cause" found in the case Lee-Wright, Inc. v. Hall, 840 S.W.2d 572, 580 (Tex. App.-Houston [1st Dist.] 1992, no writ)...”).

Felony assault with a firearm is a felony involving moral turpitude under California law. People v. Sandoval, 4 Cal.4th 155, 177, 841 P.2nd 862 (1992); People v. Armendariz, 174 Cal.App.3d 674, 681-682 (1985).

Any prior felony convictions involving moral turpitude have probative value concerning an individual’s employment as a teacher. Duke v. TEA, Docket No. 108-TCC-390, p.5 (Comm’r Ed. 1992).

The incidents which occurred in 1964 and 1978 as reflected in DISD Exhibit 3 on Bates- stamped page DISD 77 are too remote in time to have probative value concerning an individual’s employment as a teacher. Id.

The charge which occurred in 1990 as reflected in DISD Exhibit 3 on Bates stamped page DISD 77 has probative value concerning an individual’s employment as a teacher. Id.

Where an employee makes a false statement in his application for employment, the application is voidable at the employer’s option, and the employer may discharge the employee. Douglas v. Levingston Shipbuilding Co., 617 S.W.2d 718, 720 (Tex. Civ. App. Beaumont 1979, writ ref’d n.r.e.); Swanson v. American Manufacturing Company, 511 S.W.2d 561 (Tex. Civ. App.-Fort Worth, 1974, writ ref’d n.r.e.); Dawson v. Texas & P. Ry. Co., 123 Tex. 191, 70 S.W.2d 392 (1934).

School districts are authorized to discharge an employee who was hired and then the school district obtained information pertaining to an earlier felony conviction involving moral turpitude. Dallas ISD v. Price, Docket No. 039-LH-1296, p. 8 (Prather Reccommendation 1997) (citing Educator's Guide to Texas School Law, 4th Ed., Kemerer & Walsh, p. 106, "Criminal History Checks,").

By submitting the application over the internet, Mr. Haney acknowledged and agreed that an employment contract based upon information contained in the application which later proves to be false or incomplete shall result in the contract becoming null and void or terminated.

The statement on the application that: “I also understand that an employment contract based upon information contained in the application which later proves to be false or incomplete shall result in the contract becoming null and void or terminated.” formed a binding agreement between Mr. Haney and DISD.

Mr. Haney’s understanding of the questions and his intent to be truthful do not excuse the fact that the information he supplied was not complete, was not accurate and was not true.

Waiver is defined as an "intentional relinquishment of a known right or intentional conduct inconsistent with claiming that right." Sun Exploration v. Benton, 728 S.W.2d 35, 37 (Tex. 1987). In determining if a waiver has in fact occurred, the court must examine the acts, words or conduct of the parties and it must be "unequivocally manifested" that it is the intent of the party to no longer assert the right. Robinson v. Robinson, 961 S.W.2d 292, 299 (Tex. App.- Houston [1st Dist.] 1997, no writ).

Even though Mr. Haney did provide to DISD the following information “Charge: assult(sic) Date: 11/12/1984 Disposition: Servied (sic) time Court & County/State: Supierer (sic) Court Santa Cruz/CA.” (DISD Exh. 3 pp. 69-70) and provided DISD with his correct full name, date of birth, Texas driver’s license number and social security number (DISD Exh. pp. 62 and 64), DISD’s failure to discover the California felony conviction before 2009 is not a waiver of its policies.

Further, even though Mr. Haney did supply this information, it did not have the legal effect of placing DISD on notice of the fact of his felony conviction.

Any errors or omissions in obtaining the criminal records do not waive the DISD’s policies. See Toussaint v. Dallas ISD, Docket No. 071-R2-0708, p. 2 (Comm’r Ed. 2008) (“The issue is not whether the [Campus Intervention Team] came to the correct decision or followed proper procedures. The issue is whether there is good cause to terminate Petitioner’s contract.”)

Any errors or omissions in obtaining the criminal records do not impact the issue of whether good cause exists to terminate Mr. Haney’s 2009-2010 contract as a teacher with the DISD. See Toussaint v. Dallas ISD, Docket No. 071-R2-0708, pp. 2-3 (Comm’r Ed. 2008) (“The issue is not whether the [Campus Intervention Team] came to the correct decision or followed proper procedures. The issue is whether there is good cause to terminate Petitioner’s contract.... A teacher could not even defeat a proposed termination by showing that the proposal to terminate was flawed other than by showing a violation of statutory provisions.... A proposed termination may not be defeated by showing that a better process should have been used...”).

Any statements by Mr. Jose Rodriguez, the initial interviewer of Mr. Haney, did not waive any DISD policy. Id.

Statements by Mr. Jose Rodriguez, the initial interviewer of Mr. Haney, do not impact whether good cause exists to terminate Mr. Haney’s 2009-2010 contract as a teacher with the DISD. Id.

Ms. Wilson’s realization that the criminal history check results did not match the information supplied by Mr. Haney did not waive any DISD policy. Id.

Ms. Wilson’s realization that the criminal history check results did not match the information supplied by Mr. Haney does not impact whether good cause exists to terminate Mr. Haney’s 2009-2010 contract as a teacher with the DISD. Id.

DISD's recommendation to terminate was not and is not arbitrary, capricious, and without good cause.

DISD had good cause to terminate Mr. Haney’s contract of employment for 2009-2010 before the end of its term which is supported by a preponderance of the evidence.

Mr. Haney's acts, conduct and behavior outlined herein constitute a violation of DISD Board Policies, which are "good cause" and grounds for termination of employment based upon the following reasons contained in DISD Exhibit 1:

He had a felony conviction.

He failed to disclose a felony conviction on his application.

DISD may use criminal background information of an employee if the employee's crime is determined to adversely affect the District or if it is demonstrated the employee could be a danger to staff, students, or the general public.

An employee who did not disclose a prior criminal conviction when requested at the time of employment may be immediately recommended for termination.

The District may terminate an employee convicted of a felony or misdemeanor if the crime adversely affects the mission of the District.

The DISD letter of August 11, 2009 is supported by a preponderance of the evidence.

Recommendation

The undersigned hereby recommends that the Board of Trustees of Dallas Independent School District adopt the foregoing Findings of Fact and Conclusions of Law and further recommends that the administration’s proposal/recommendation to terminate the employment contract of Mr. Harry Haney be approved.

SIGNED AND ISSUED this_______ day of_______________ 2009.

___________________________________________________

William E. Hartsfield

INDEPENDENT CERTIFIED HEARING EXAMINER

cc: Adam Medrano, President

Board of Trustees

Dallas ISD

c/o Faye Matthews-Bridges

3700 Ross Avenue

Dallas, Texas 75204

VIA FEDEX 2-Day Delivery

Tracking No. 798151162275

Enclosure: Record of Proceeding

Mr. James Paul Barklow, Jr.

Attorney at Law

6116 N. Central Expressway, Suite 500

Dallas, Texas 75206

Attorney for Teacher

VIA FAX ONLY 214-363-0813

Ms. Veretta Frazier, Esq.,

West & Associates

320 S. R.L. Thornton, Suite 300

Dallas, TX 75203

Ph. 214-941-1881 ext. 317

Counsel for Dallas ISD

VIA EMAIL ONLY veretta.f@

Isabel Lozoria

Legal Assistant

Division of Hearing & Appeals,

Office of Legal Services,

Texas Education Agency

1701 N. Congress Avenue

Austin Texas 78701-1494

VIA EMAIL AND FACSIMILE

Isabel.Lozoria@tea.state.tx.us

-----------------------

[1] SEC v. Gann, 2008 U.S. Dist. LEXIS 25562 *2 n. 1 (N.D. Tex. Mar. 31, 2008) aff’d 565 F.3d 932 (5th Cir. 2009) (credibility determinations encompass all of the circumstances under which the witness testified, which include: the relationship of the witness to the parties; the interest, if any, the witness has in the outcome of the case; the witness's appearance, demeanor, and manner of testifying; the witness's apparent candor and fairness, or the lack thereof; the reasonableness or unreasonableness of the witness's testimony; the opportunity of the witness to observe or acquire knowledge concerning the facts to which he or she testified; the extent to which the witness was contradicted or supported by other credible evidence; and whether such contradiction related to an important factor in the case or some minor or unimportant detail).

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