DOCKET NO .tx.us



NO. 018-LH-1009

|HOUSTON INDEPENDENT SCHOOL DISTRICT |§ |BEFORE JOEL B. FLOWERS, III |

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|v. |§ |CERTIFIED HEARING EXAMINER |

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| |§ | |

|EDDIE BEBLEY |§ |TEXAS EDUCATION AGENCY |

WRITTEN FINDINGS OF FACT, CONCLUSIONS OF LAW,

AND RECOMMENDATION OF THE CERTIFIED HEARING

EXAMINER FOR THE STATE OF TEXAS

PROCEDURAL HISTORY

An agreement to extend the time for the Certified Hearing Examiner’s (hereinafter “CHE”) recommendation to January 7, 2010 was executed by the parties on November 6, 2009. The Agreement to Extend Time for Recommendation was signed and filed by the CHE on November 9, 2009.

STATEMENT OF THE CASE

This appeal is from the July 16, 2009 proposed termination of Eddie Bebley’s (Respondent) one year term contract by the Houston Independent School District (“HISD” or “District”). At the time of the proposed termination, Respondent was a teacher at E. W. Cullen Middle School within the Houston Independent School District in Houston, Texas (hereinafter “Cullen”) on a one year term contract. The basis for the proposed termination is for good cause, pursuant to Section 11 of Respondent’s one-year term contract and Texas Education Code §§21.211(a) and 21.251(a)(2) is as follows:

1. Misconduct with a student;

2. Violation of technology use regulations; and

3. Violations of code of ethics.

In compliance with Tex. Ed. Code §21.251 et seq., on September 24, 2009, Respondent requested a hearing before a Certified Hearing Examiner. Mr. Joel B. Flowers, III (hereinafter “CHE”) was appointed by the Commissioner of Education to: 1] conduct the hearing; 2] make written Findings of Fact and Conclusions of Law, and 3] make a Recommendation to the HISD board. Respondent was represented by James T. Fallon, III at the hearing conducted on December 17, 2009. Mario Vasquez represented HISD at the December 17, 2009 hearing. Lynett H. Hookfin (hereinafter “Ms. Hookfin”), Principal of Cullen, appeared as the representative for HISD. HISD presented 4 witnesses, Eddie Bebley (live); Lynett H. Hookfin (live), Billy M. Aldrich (live), and C.W. (live). HISD admitted twenty-one exhibits into evidence. Gary Bebley presented 4 witnesses, Toni Jones (live); Anaca Davis (live), Yonsuetta Johnson (live), and Tonya Dancer (live). Gary Bebley admitted 4 exhibits.

FINDINGS OF FACT

After due consideration of the record and matters officially noticed, the following Findings of Fact are made by the CHE (citations to evidence are not exhaustive but are intended to indicate some of the basis for the particular finding of fact):

1. Eddie Bebley has been a teacher in HISD since the year 2000. [Transcript Page 251.] At the time in question, he was assigned to Cullen Middle School. [Tr. 23.]

2. Mr. Boe Washington was also a teacher at Cullen Middle School at the time. [Tr. 23.]

3. Respondent testified that he never gave his password to anyone during his tenure. [Tr. 28.]

4. Respondent admits that he used his school computer to go to the Internet. [Tr. 35.]

5. Respondent admits that he had seen most of the pictures in the last two pages of HISD Exhibit 12, but not the other pages. [HISD Ex. #12; Tr. 35.]

6. Respondent testified that his visits into the Internet were related to his job responsibilities to enhance his rapport with his students. [Tr. 36-37.]

7. Respondent had no explanation how HISD Exhibits 11 and 12 (except the last 2 pages) were found in his computer. [HISD Ex. # 11 and 12; Tr. 43.]

8. Respondent admitted that students in classroom use his computers, but only when he is in the room supervising them. [Tr. 48 and 50.]

9. Respondent testified that he was responsible for what happens on his computers as set forth in the District’s security agreements. [HISD Ex. 4-6; Tr. 49.]

10. Respondent could not explain how the Bow Wow picture showed up as a temporary Internet file in 2009 after the District’s investigation because the photo of the entertainer and student were from 2004-2005. [Tr. 48 and 50.]

11. Lynett Hookfin testified that she is the Principal at Cullen Middle School and she had been in that position for two years. [Tr. 52.]

12. After receiving a telephone call from Respondent about the photograph of a student, Ms. Hookfin went back to the school to secure the two computers in Respondent’s classroom. [Tr. 57-60.]

13. Ms. Hookfin decided to secure the computers in Respondent’s class room and move them to her office the evening of February 20, 2009 because Respondent repeatedly asked her to meet him at the school during their telephone conversation. [Tr. 85.]

14. On February 21, 2009, Ms. Hookfin advised her supervisor and called the HISD police regarding her conversation with Respondent on the evening of February 20, 2009. The HISD police came to the school and confiscated the computers from Respondent’s class room. [Tr. 60.]

15. After the investigation was concluded by HISD, Ms. Hookfin recommended that Respondent’s employment contract with HISD be terminated for having inappropriate photographs in his computer, which was confirmed by the investigative report. [Tr. 68-70.]

16. Ms. Hookfin testified that an employee has to log in everyday by using his user name and password. If both are not entered the District’s operating systems will not open and cannot be used. [Tr. 72.]

17. Ms. Hookfin testified that students can use computers in labs by using their own user names and passwords for limited access. She also testified that students can access a teacher’s computer in a classroom, if the teacher has logged in using his user name and password. In the latter, the teacher becomes responsible for the students use of the teacher’s computer. [Tr. 72-74.]

18. Mr. Billy Aldrich has been an HPD police officer for 23 years, and he has been an Investigator with HISD for more than 13 years. [Tr. 128-131.]

19. As an investigator, Mr. Aldrich has had over 40 hours of forensic computer training and has had Technology image 50-60 computers, which he then examines. [Tr. 131-134.]

20. During his investigation, Mr. Aldrich did not find a copy of HISD Exhibit no. 8 or the semi-nude photograph attached thereto in Respondent’s computers, but he did find a similar semi-nude photograph of the subject student in one of his computers. [HISD Ex. 8 and 11; Tr. 137-138.]

21. Mr. Aldrich found the semi-nude photograph in HISD Exhibit no. 11 in a directory under Respondent’s account on one of the computers confiscated by Ms. Hookfin on the evening of February 20, 2009. [HISD Ex. Nos. 11 and 21; Tr. 138.]

22. Mr. Aldrich testified that there was no way that the semi-nude photograph could have been saved in the location where it was found on Respondent’s computer unless Respondent or someone operating the computer was not in that path, i.e. in the folder under Respondent’s account. [Tr. 139.]

23. Mr. Aldrich testified that when a District computer is off, a person can turn it on, but they cannot log on to Respondent’s account unless they have Respondent’s password. [Tr. 145.]

24. Mr. Aldrich testified that he confirmed that Respondent had inappropriate photographs in his computer in violation of District policies. [Tr. 149.]

25. Furthermore, Mr. Aldrich testified that the image in HISD Exhibit 11 found its way to Respondent’s computer on June 16, 2008 at 1:35 p.m. [HISD Ex. 21; Tr. 163-164 and 174.]

26. Mr. Aldrich stated that during summer school 2008, Mr. Washington picked up the student in question’s cellular telephone and that Respondent retrieved the same phone from Mr. Washington and gave it to the subject student at the end of the day. [Tr. 169.]

27. The student in question testified that the student attended summer school in 2008, took 4 classes, and school was from 8:00 a.m. to 3:00 p.m. [Tr. 190.]

28. Summer school started in June and ended in early July of 2008. [Tr. 191.]

29. The student in question had Mr. Washington during second period and Respondent during third period during summer school. Classes were approximately and hour and a half. [Tr. 191-192]

30. The student in question testified that Mr. Washington picked up her cellular telephone during second period, and Respondent retrieved it immediately during third period, but did not give it back to her until after school. [Tr. 191-195.]

31. The student testified that she had taken 4-5 inappropriate photos of herself in her cell phone at the time it was picked up, including the 2 photos in HISD Exhibits 8 and 11. [HISD Ex. 8 and 11; Tr. 195-197.]

32. She only showed the photos in her phone to her boyfriend and erased them. She did not send the photos to his phone or computer. [Tr. 196.]

33. The subject student saw Respondent operating her phone after he retrieved from Mr. Washington, but before he returned it to her. [Tr. 195 and 206.]

34. The subject student testified that on the day that the subject student’s phone was confiscated, there were messages, emails, or text messages on the phone. However, when the phone was returned to the subject student by the Respondent, there was nothing on her phone. [Tr. 211-212.]

DISCUSSION

The issue in this case is whether there is good cause for the District to terminate Respondent’s one-year term contract for Respondent’s actions that took place during the 2008-2009 school year.

HISD contends, inter alia, that during the 2008-2009 school year Respondent:

1. Did not conduct himself appropriately with a student;

2. Violated the District’s technology use regulations; and

3. Violated Texas Administrative Code Section 247.2, Code of Ethics and Standard Practices for Texas Educators.

Respondent’s contract, provision no. 11 (HISD Ex. 2) in pertinent part states, “During the term of this Contract, the Employee may be terminated for good cause as determined by the Board…or for any reason stated in Board Policies, SPMs, or this Contract.” Section 21.211(a) of the Texas Education Code provides, “The board of trustees may terminate a term contract and discharge a teacher at any time for good cause as determined by the board.”

On September 4, 2009 the HISD Board, through its Superintendent, notified Respondent that Respondent’s one-year teacher’s term contract would be terminated. (HISD Ex. 1). The written notice provided to Respondent specifically set forth the reasons that the one-year term contract would be terminated. (HISD Ex. 1).

The preponderance of the credible and persuasive evidence supports HISD’s position for termination for cause for Respondent’s violation of the HISD’s technology use regulations and Texas Administrative Code Section 247.2. Although there is some conflicting testimony in this matter, the CHE finds the testimony of the witnesses Billy Aldrich and Lynett Hookfin to be most credible and persuading.

HISD proffered evidence in the form of HISD Exhibit No. 21 and Billy Aldrich’s testimony, which reveal that an inappropriate, semi-nude photograph of the subject student was found on an HISD computer under the control and possession of Respondent on June 16, 2008. The evidence reveals that the semi-nude photograph was saved on Respondent’s work computer on June 16, 2008 at 1:35 p.m. to a Yahoo mail folder under his user name account folder and that the same photograph was taken by the subject student with her camera phone on June 16, 2008 at 12:22 a.m. Respondent testified that he did not provide his user name and password to anyone to allow them access to his computer. The subject student testified that on June 16, 2008 during second period, her camera phone that she used to take the semi-nude photograph was confiscated by another Cullen teacher (Mr. Washington). The subject student testified that Respondent retrieved the confiscated camera phone from Mr. Washington. The subject student testified that Respondent kept the camera phone until the end of the school day on June 16, 2008. The subject student testified that prior to the camera phone being confiscated; it had multiple messages, but that when Respondent returned the phone, the messages had been deleted. Respondent has provided no evidence to contradict the foregoing evidence. HISD’s attorney asked Respondent how the semi-nude photograph came to be on his computer, and Respondent testified that he did not know.

The preponderance of credible and persuasive evidence reveals that Respondent was in possession of the subject student’s camera phone at the time that the inappropriate, semi-nude photograph from the camera phone was saved to a computer that only Respondent had control and access to on June 16, 2008 at 1:35 p.m. There is no evidence supporting that anyone other than Respondent saved the semi-nude photograph of the subject student to his computer on June 16, 2008 at 1:35 p.m. In saving the subject student’s semi-nude photograph to his computer, Respondent demonstrated extremely poor judgment. Clearly, HISD had its students’, faculty’s, staff’s, and the community’s safety and well being in mind in deciding to terminate Respondent’s one-year term contract.

The reasons for the proposed termination of Respondent’s term contract are well documented and supported by the preponderance of credible and persuasive evidence as set forth herein and in the hearing transcript.

CONCLUSIONS OF LAW

After due consideration of the evidence presented at the hearing, any materials officially noticed, and the foregoing Findings of Fact, in my capacity, as a Certified Hearing Examiner for the State of Texas, I make the following Conclusions of Law:

1. The Hearing Examiner has jurisdiction to hear this issue under Texas Education Code §21.251(a) (1).

2. Respondent was afforded a fair and impartial hearing as prescribed in the Texas Education Code, Subchapter F.

3. The conclusion that Respondent had inappropriate photographs in his school computer at Cullen Middle School in violation of HISD Board Policies DH (LOCAL), DIA (LOCAL), and FFH (LOCAL) is supported by the preponderance of the credible and persuasive evidence.

4. The conclusion that Respondent failed to comply with HISD’s technology use regulations, particularly using his school computer for official business only is supported by the preponderance of the credible and persuasive evidence.

5. The conclusion that Respondent violated the Educators’ Code of Ethics, particularly Standards 1.7 and 3.2, is supported by the preponderance of the credible and persuasive evidence.

6. The conclusion that Petitioner has “good cause” to terminate Respondent’s term contract is supported by the preponderance of the credible and persuasive evidence, because he has failed to meet the accepted standards of conduct for the profession as required by the Board and the Board’s policies.

7. Any conclusion of law deemed to be finding of fact is hereby adopted as such.

V. RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is the Recommendation of the Certified Hearing Examiner that HISD has sufficient evidence to terminate Eddie Bebley’s one-year term contract and that Respondent’s appeal of such proposed termination should be DENIED in its entirety.

SIGNED this 7th day of January, 2010.

_______________________________________

Joel B. Flowers, III, Certified Hearing Examiner

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