DOCKET NO .tx.us



DOCKET NO. 088-LH-505

DALLAS INDEPENDENT § BEFORE

SCHOOL DISTRICT, Petitioner §

§

§ SUSAN CHIN

§

§

V. §

§ CERTIFIED INDEPENDENT

CHRISTOPHER MADDOX, Respondent § HEARING EXAMINER

HEARING EXAMINER'S RECOMMENDATION

In accordance with Subchapter F of Chapter 21 of the Texas Education Code, Susan Y. Chin, as Certified Hearing Examiner ("Hearing Examiner") appointed by the Texas Commissioner of Education makes these findings of fact, conclusions of law, and recommendation as follows:

I.

STATEMENT OF THE CASE

Petitioner Dallas Independent School District ("DISD" or "Petitioner") seeks to terminate Respondent Christopher Maddox’s ("Mr. Maddox" or "Respondent") Educator Probationary Contract for 2004-2005 and Educator Term Contract for 2005-2006 and 2006-2007 school years. Prior to being placed on administrative leave with pay, Mr. Maddox was a teacher for talented and gifted students at Sam Houston Elementary School and Lorenzo de Zavala Elementary School. (Hearing Transcript page 359 lines 10-11)

The specific grounds for the recommended termination of Mr. Maddox’s employment, as set forth in DISD's April 28, 2005 Letter Recommending Termination ("Termination Notice" - Employer's Exhibit 1), are his alleged "[c]onduct related to your arrest and charges for a criminal offense” and his alleged “[f]ailure to notify the District about an arrest or criminal charges.” The Original Petition, filed by DISD on June 8, 2005, elaborated on the grounds for termination to allege that:

(1) On or about April 11, 2005, Mr. Maddox engaged in inappropriate conduct which resulted in his arrest by the Dallas Police Department Vice Unit for Indecent Exposure, a class B misdemeanor offense under 21.08(a) of the Texas Penal Code;

(2) Mr. Maddox failed to report the April 11, 2005 arrest to his supervisor or other DISD administrators as required by DISD policy; and

(3) Mr. Maddox failed to report his arrest for Public Indecency and Resisting Law Enforcement in 1994 in Indiana.

The DISD policy provisions under which Mr. Maddox's termination is recommended are as follows:

(A) Failure or refusal to comply with policies, orders, and directives of the Board, General Superintendent, and/or designees. (DF-Local #1)

(B) Immorality, public lewdness, or other acts of moral turpitude, including unlawful practices. (DF-Local #5)

(C) Conviction at the trial court level of any felony or misdemeanor involving moral turpitude or the commission of any act that is a violation of the laws of the United States or the state of Texas and that directly affects the operation or mission of the District. (DF-Local #6)

(D) Conduct or behavior not otherwise expressly referred to in this policy, either during or off working hours, that could cause the public, students, or employees to lose confidence in the administration and integrity of the District. ( DF-Local #24)

(E) Failure to meet acceptable standards of conduct for employees in like or similar positions, which would make retention of the employee detrimental to the best interests of the District. (DF-Local # 25)

II.

PENDING CRIMINAL PROCEEDING

There is a pending criminal proceeding for Indecent Exposure against Mr. Maddox arising out of his conduct on April 11, 2005. Neither side provided information about the status of that criminal proceeding or when it is expected to conclude.

Mr. Maddox’s conduct on April 11, 2005 is a key ground for the proposed termination of Mr. Maddox’s employment. Mr. Maddox argued that this administrative proceeding is premature and should be postponed until the criminal proceeding has concluded. Mr. Maddox is correct with respect to proposed termination based upon a conviction at trial because no conviction has taken place. However, Mr. Maddox is not correct with respect to the other grounds for the proposed termination.

It should be noted that even if Mr. Maddox is found to be not guilty in a criminal trial, his April 11, 2005 conduct still may be the grounds for the termination of his employment. In a criminal trial, the prosecution has the burden to prove guilt beyond a reasonable doubt. In this administrative proceeding, DISD only needs to show by a preponderance of the evidence (50.0001% or more) that the allegations are more likely true than not. There may be some circumstances where the evidence surpasses the preponderance level but does not reach the beyond a reasonable doubt level.

It should also be noted that even if the criminal charges against Mr. Maddox are dismissed, his April 11, 2005 conduct still may be the grounds for the termination of his employment. Good cause for termination pursuant to DISD policy is not limited to criminal conduct.

Given that DISD must pay Mr. Maddox’s salary while he is on administrative leave with pay and it is uncertain when the criminal proceeding will conclude, it would be unduly burdensome to stay this proceeding until the criminal proceeding has concluded.

III.

FINDINGS OF FACT & DISCUSSION

(A) PROCEDURAL BACKGROUND

(1) By letter dated April 28, 2005 and delivered on or about May 2, 2005, Dr. Troy L. Coleman, as Associate Superintendent - Human Resource Services notified Mr. Maddox in writing of his recommendation to terminate his employment by the DISD as a teacher and placed him on administrative leave with pay pending any request for a hearing.

(2) Mr. Maddox's request for a hearing was timely received by the Texas Education Agency on May 13, 2005.

(3) On May 23, 2005, the Texas Education Agency appointed Susan Y. Chin to serve as Hearing Examiner in this appeal.

(4) The parties waived in writing the sixty (60) day deadline and extended the deadline for the completion of the hearing and the written recommendation of the Hearing Examiner to August 9, 2005. The closed hearing on the merits was held on July 15 and 22, 2005. The parties submitted post hearing legal briefs on July 29, 2005. Petitioner Dallas Independent School District was represented by its employee Pamela Carroll and by its counsel Evelyn Conner Hicks of the law firm of Donald W. Hicks, Sr., P.C. Respondent Christopher Maddox appeared in person and was represented by his counsel Rick Cohen.

(B) FACTUAL BACKGROUND

(5) Mr. Maddox has been employed as a teacher by DISD since September 2003. (Hearing Transcript page 381 lines 13-14)

(6) Mr. Maddox has been a successful teacher at DISD. Mr. Maddox has received letters of recommendation from his supervisors. Mr. Maddox’s performance in the classroom is not an issue in this proceeding.

(C) MR. MADDOX’S CONDUCT ON APRIL 11, 2005

(7) On Monday April 11, 2005, Mr. Maddox was given permission to leave campus early. (8) At approximately 2:00 p.m. on April 11, 2005, Mr. Maddox went to the Bally Health Club on McKinney Avenue (“Bally”). During his visit there, Mr. Maddox was in the men’s shower room where he showered in a shower stall.

(9) While Mr. Maddox was taking a shower, Dallas Police Department Detective C. Steve Hall (“Detective Hall”) of the vice unit was working under cover and taking a shower in a stall diagonally across from the one used by Mr. Maddox.

Detective Hall’s Account Of What Happened

(10) Detective Hall testified that Mr. Maddox had his shower curtain pulled back so that Mr. Maddox was in full view. Detective Hall testified that his own shower curtain was pulled back a few inches so that he could observe Mr. Maddox and one other person in the shower room.

(11) Detective Hall alleged that he observed Mr. Maddox engaged in masturbation for ten to fifteen minutes, slapped his buttock, made gestures, and silently mouthed a message to

Detective Hall suggesting that Detective Hall pull his curtain back to allow Mr. Maddox full view of Detective Hall’s body. (Hearing Transcript page 29-30)

Mr. Maddox’s Account Of What Happened

(12) Mr. Maddox denied that he had engaged in any inappropriate conduct as alleged by Detective Hall.

(13) Mr. Maddox testified that he had his shower curtain pulled back only six to eight inches so that he could watch his towel and other belongs hanging on a hook just beyond the shower curtain. (Hearing Transcript page 386) Mr. Maddox also testified that he was in the shower for only a minute or two. (Hearing Transcript page 455 line 21) Mr. Maddox testified that his towel partially blocked his view of Detective Hall but he was able to observe that Detective Hall appeared to be watching him constantly. (See also Employer’s Exhibit 5: Mr. Maddox’s handwritten statement on August 18, 2005 page 1)

Analysis & Conclusion

(14) Given that Detective Hall and Mr. Maddox are the only witnesses to Mr. Maddox’s conduct in the shower room, the Hearing Examiner must determine which version is more likely to be true based upon (a) the plausibility of each version and (b) the credibility of each witness.

(15) Each shower stall consisted of three walls. The shower head is attached to the middle (back) wall. The two side walls were eight or nine feet tall. On the fourth side was a shower curtain that could be pulled back fully or by only a few inches. (Hearing Transcript page 387 - 388)

(16) No evidence was offered regarding the height of the hook holding Mr. Maddox’s towel. It is likely that the hook would be at eye level for the average adult male to be most convenient for the users. If the hook was at eye level, it is very likely that the towel would have blocked Detective Hall’s face from the view of Mr. Maddox who is five feet seven inches tall. (Employer’s Exhibit # 2) If Mr. Maddox was unable to see Detective Hall’s face, Mr. Maddox would not be able to notice Detective Hall looking at him constantly.

(17) If Mr. Maddox was in the shower for only a minute or two as he claimed, he would have had to spent much of the minute or two facing away from the shower head and towards the six to eight inch opening to observe Detective Hall watching him constantly.

(18) Furthermore, if Mr. Maddox’s curtain was pulled back only six to eight inches, he was able to look out only on the side of the opening. For him to observe Detective Hall, he would have had to spent most of the minute or two turned toward the side with the opening.

(19) Because of how much Mr. Maddox observed of Detective Hall and what he was doing, the Hearing Examiner finds it is more likely than not that Mr. Maddox had his shower curtain fully pulled back and spent ten to fifteen minutes in the shower as Detective Hall alleged.

(20) At the hearing, Mr. Maddox was unable to offer any reason why Detective Hall may lie about him or his conduct. Mr. Maddox had no prior acquaintance with Detective Hall although he did see him at Bally from time to time. The Hearing Examiner did not notice anything regarding Detective Hall’s demeanor or testimony that raised any questions regarding his credibility.

(21) In contrast, Mr. Maddox’s testimony at times appeared calculated to mislead or distract. For example, Mr. Maddox’s testimony regarding his 1994 arrest was often non-responsive. (Hearing Transcript pages 473 to 475.) Also, at times during his testimony, Mr. Maddox denied that he had knowledge of the Indecent Exposure charge against him prior to his April 18, 2005 interview with DISD human resources investigators. Yet his April 18, 2005 handwritten statement indicates that he was told by Detective Hall on April 11, 2005 of the Indecent Exposure charge when Mr. Maddox asked why it was necessary to give his social security number. (Employer’s Exhibit 5) The Hearing Examiner did not find Mr. Maddox’s testimony to be credible.

(22) Given that the Hearing Examiner finds Detective Hall’s account of Mr. Maddox’s conduct at Bally’s shower room on April 11, 2005 to be more plausible than Mr. Maddox’s account and Detective Hall to be a more credible witness than Mr. Maddox, the Hearing Examiner finds that it is more likely than not that on April 11, 2005, Mr. Maddox engaged in the conduct alleged by Detective Hall.

(23) The Hearing Examiner finds that on April 11, 2005, Mr. Maddox engaged in conduct which qualifies as Indecent Exposure as defined in Section 21.08 of the Texas Penal Code, a class B misdemeanor.[1]

(24) The Hearing Examiner finds that on April 11, 2005, Mr. Maddox engaged in conduct or behavior that could cause the public, students, or employees to lose confidence in the administration and integrity of DISD and would constitute good cause for the termination of his employment by DISD pursuant to DF-Local # 24.

(25) The Hearing Examiner finds Mr. Maddox’s conduct on April 11, 2005 failed to meet

acceptable standards of conduct for employees in like or similar position, which would make his retention detrimental to the best interests of DISD and would be good cause for the termination of his employment by DISD pursuant to DF-Local # 25.

(26) The Hearing Examiner finds Mr. Maddox’s conduct on April 11, 2005 to be a violation of Texas law and directly affects the operation or mission of DISD and would be good cause for termination of his employment by DISD pursuant to DF-Local # 6.

(D) FAILURE TO NOTIFY DISD REGARDING APRIL 11, 2005 ARREST AND CHARGES

(27) DISD’s Employee Standards of Conduct requires an employee who is arrested for any felony or any offense involving moral turpitude to report the arrest to the General Superintendent, in writing, within three workdays of the arrest. (Employer’s Exhibit 11, page 37)

(28) Indecent Exposure is a class B misdemeanor and not a felony under Texas law.

(29) Offenses involving moral turpitude are defined in DISD’s DC(Local).[2] Indecent

Exposure is not one of the offenses listed as an example of one involving moral turpitude. [3] A diligent employee reviewing DC(Local) can reasonably conclude that he does not need to report a charge of Indecent Exposure.

(30) The Hearing Examiner finds Mr. Maddox was arrested and charged with Indecent Exposure on April 11, 2005.

(31) The Hearing Examiner finds that Mr. Maddox was aware that he had been arrested and charged with the offense of Indecent Exposure on April 11, 2005 but did not report it to DISD. (32) The Hearing Examiner is of the opinion that Mr. Maddox did not have a duty to report the arrest arising out of the April 11, 2005 incident because the offense charged was not a felony or a misdemeanor involving moral turpitude and his silence is not good cause for termination.

(E) FAILURE TO DISCLOSE 1994 ARREST

(33) In February 1994, when he was 25 years old, Mr. Maddox was arrested in Marion County, Indiana for (a) Public Indecency and (b) Fleeing from Officer. Both offenses are class A misdemeanors under the Indiana Code. (Employer’s Exhibit 8)

(34) The Indiana Code Section 33-39-1-8 allows a prosecuting attorney to withhold prosecution against a person accused of a misdemeanor if the accused agrees to the conditions of a pretrial diversion program offered by the prosecuting attorney. Upon successful completion of the pretrial diversion program, the court withholds prosecution against the accused but the arrest record remains.

(35) The Marion County District Attorney offered a pretrial diversion program to Mr. Maddox and he accepted it. He completed the conditions of the diversion program and the two class A misdemeanor charges against him were dismissed in 1995 without Mr. Maddox entering any pleas or undergoing a trial. (Employer’s Exhibits 10 and 7)

(36) In 1998, Mr. Maddox applied for a teaching position at the Clark County School District in Las Vegas, Nevada which conducted a criminal background check and discovered Mr. Maddox’s 1994 arrest record in Indiana. To respond to inquiries from the Clark County School District, Mr. Maddox retained Mr. Dennis McCrosson, one of several attorneys who had represented him in the 1994 matter to write a letter to explain what had happened. Mr. Maddox granted a limited waiver of attorney client privilege to allow Mr. McCrosson to write the letter.

On Mr. Maddox’s behalf, Mr. McCrosson admitted that Mr. Maddox committed the offenses of urination in a public place (Public Indecency) and attempting to evade arrest (Resisting Law Enforcement.) (Employer’s Exhibit 7) In his April 18, 2005 hand-written statement, Mr. Maddox also admitted to committing these offenses in 1994. (Employer’s Exhibit 5)

(37) In June 2003, Mr. Maddox applied for a teacher’s position at DISD and completed an application form. Mr. Maddox checked the “No” answer to the question “[h]ave your received probation, deferred judgment, pleaded no contest, or served time in prison?” and signed the application form on June 3, 2003. (Employer’s Exhibit 2) There is no dispute that the “No” answer is true and correct with respect to probation, pleaded no contest, or served time in prison. The only dispute is with respect to the question of deferred judgment.

(38) The Indiana diversion program is similar to deferred adjudication (deferred judgment) in Texas pursuant to Texas Code of Criminal Procedure Article 42.12 Section 5 in that successful completion of either program results in dismissal of the charges. However, the Indiana diversion program differs from deferred adjudication in Texas in some very important respects. The Indiana diversion program does not require any plea from the defendant or any finding of guilt whereas Texas deferred adjudication requires the defendant’s plea of guilty or nolo contendere , and a finding by the judge that the evidence substantiates the defendant’s guilt. The difference between Indiana diversion and Texas deferred adjudication is more than a matter of terminology.

(39) Although Mr. Maddox did commit the offenses of Public Indecency and Resisting Law Enforcement in 1994, his answer of “No” to deferred judgment on his DISD application form was truthful.

(40) It appears the DISD criminal background check did not uncover Mr. Maddox’s 1994 arrest in Indiana. There is no evidence that Mr. Maddox was questioned about the 1994 Indiana arrest until April 18, 2005. There is no evidence that Mr. Maddox lied to DISD concerning his 1994 Indiana arrest.

(41) The Hearing Examiner is of the opinion that Public Indecency does not meet DISD’s definition of a felony or a misdemeanor involving moral turpitude. The Hearing Examiner is of the opinion that Mr. Maddox had no duty to report his arrest to DISD.

(42) The Hearing Examiner is of the opinion that Mr. Maddox’s silence regarding his 1994 arrest is not good cause for the termination of his employment.

IV.

DISCUSSION

According to the Indianapolis police officer’s account of the 1994 arrest, Mr. Maddox urinated in the public restroom, stood in the restroom with his penis exposed for ten to fifteen minutes, turned to show his penis to the undercover police officer, pulled his pants up and left the restroom, and returned to the restroom a few minutes later to repeat the same sequence three more times. (Employer’s Exhibit 8) Mr. Maddox’s and Mr. McCrosson’s accounts only mentioned urination in a public alley.

Mr. Maddox offered no explanation for the discrepancy. Mr. Cohen, his attorney, objected to questions regarding the 1994 arrest although Mr. Maddox is no longer at risk for prosecution for that offense.

The Hearing Examiner’s determination of whether the April 11, 2005 allegations are true are based only upon evaluation of the evidence relating to that incident. Mr. Maddox’s 1994 arrest is not considered in that determination.

However, Mr. Maddox’s 1994 arrest should be considered in determining the appropriate disciplinary action for the April 11, 2005 wrongful conduct. The similarity between what the Indiana police officer reported in 1994 and what Detective Hall reported on April 11, 2005 suggests a pattern of conduct by Mr. Maddox. That pattern of conduct raises concerns about whether it would be prudent to allow Mr. Maddox to have access to minor children.

V.

CONCLUSIONS OF LAW

(1) Sections 21.251 through 21.257 of the Texas Education Code confers jurisdiction on the Hearing Examiner to conduct a hearing on DISD's recommendation to terminate Mr. Maddox’s employment and to make a written findings of fact, conclusion of law, and a recommendation.

(2) Pursuant to § 21.256(h) of the Texas Education Code, at the hearing, the school district has the burden of proof by a preponderance of the evidence.

(3) Pursuant to § 21.211 of the Texas Education Code, the board of trustees may terminate a probationary or term contract and discharge a teacher at any time for good cause as determined by the board.

(4) Pursuant to § 11.151 of the Texas Education Code, the board of trustees of a school district may adopt rules and bylaws necessary to carry out all powers and duties not specifically delegated by statute to the Texas Education Agency or to the Texas Board of Education.

(5) The Board of Trustees for DISD has determined good cause for termination of professional employees as set forth in DF(Local) issued on November 22, 2004. (Employer's Exhibit 11, p. 9-10)

(6) The Board of Trustees for DISD has established employment practices as set forth in DC(Local).

(7) Mr. Maddox’s conduct on April 11, 2005 is the commission of the offense of Indecent Exposure, a class B misdemeanor, as defined by Texas Penal Code Section 21.08 and accordingly is good cause for his termination pursuant to Board Policy DF(Local), #6.

(8) Mr. Maddox’s conduct on April 11, 2005 could cause the public, students, or employees to lose confidence in the administration and/or integrity of the District and as such is good cause for termination pursuant to Board Policy DF(Local), #24.

(9) Mr. Maddox’s conduct on April 11, 2005 failed to meet the acceptable standards of conduct for a teacher and his retention would be detrimental to the best interest of the District. Accordingly, it is good cause for termination pursuant to Board Policy DF(Local), #25.

(10) Mr. Maddox’s conduct on April 11, 2005 does not qualify as a felony or a misdemeanor involving moral turpitude as defined by DISD DC(Local). Accordingly, he had no duty to report it pursuant to DISD policy and his silence is not good cause for the termination of his employment.

(11) Mr. Maddox’s arrest in February 1994 for Public Indecency, a class A misdemeanor pursuant to Indiana law does not qualify as a felony or a misdemeanor involving moral turpitude as defined by DISD DC(Local). Accordingly, Mr. Maddox had no duty to report it pursuant to DISD policy and his silence is not good cause for the termination of his employment.

(12) Mr. Maddox’s arrest in February 1994 for Resisting Law Enforcement, a class A misdemeanor pursuant to Indiana law does not qualify as a felony or a misdemeanor involving moral turpitude as defined by DISD DC(Local). Accordingly, Mr. Maddox had no duty to report it pursuant to DISD policy and his silence is not good cause for the termination of his employment.

VI.

RECOMMENDATION

After due consideration of all the evidence, the Hearing Examiner is of the opinion that by his April 11, 2005 conduct, Mr. Maddox (1) has committed a violation of Texas law for Indecent Exposure, (2) has behaved in a manner that could cause the public, students, or employees to lose confidence in the administration and integrity of the District, (3) failed to meet the acceptable standards of conduct for teachers in DISD and his employment by DISD, and (4) his retention would be detrimental to the best interest of the DISD. The Hearing Examiner is also of the opinion that because Mr. Maddox has violated laws pertaining to sexual conduct more than once, his retention would be highly detrimental to the best interest of DISD. For all of the above reasons, the Hearing Examiner finds and recommends that:

Petitioner's recommendation be sustained and Mr. Maddox’s employment be terminated.

SIGNED and ISSUED this 9th day of August, 2005.

_______________________________

SUSAN Y. CHIN

CERTIFIED INDEPENDENT HEARING EXAMINER

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

[1] Texas Penal Code § 21.08 defines Indecent Exposure as (a) A person commits an offense if he exposes his anus or any part of his genitals with intent to arouse or gratify the sexual desire of any person, and he is reckless about whether another is present who will be offended or alarmed by his act. (b) An offense under this section is a Class B misdemeanor.

[2] The Hearing Examiner takes judicial notice of DC(Local) which is on DISD’s website. DC(Local) states:

“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. Examples, but not by way of limitation, of offenses that involve moral turpitude are:

1. Public lewdness

2. Prostitution

3. Theft (in excess of $500 in value)

4. Swindling

Examples, but not by way of limitation, of offenses that do not involve moral turpitude are:

1. Misdemeanor possession of marijuana

2. Unlawfully carrying a pistol

3. Disturbing the peace

4. Driving while intoxicated

5. Drunkenness in a public place

6. Gambling

7. Simple assault

[3] There is no evidence of Public Lewdness which the Texas Penal Code § 21.07 defines as: (a) A person commits an offense if he knowingly engages in any of the following acts in a public place or, if not in a public place, he is reckless about whether another is present who will be offended or alarmed by his: (1) act of sexual intercourse; (2) act of deviate sexual intercourse; (3) act of sexual contact; or (4) act involving contact between the person's mouth or genitals and the anus or genitals of an animal or fowl. (b) An offense under this section is a Class A misdemeanor.

................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download