TEA DOCKET NO. 105-LH-0510
HOUSTON INDEPENDENT SCHOOL DISTRICT, / §§ / BEFORE THE CERTIFIED HEARING EXAMINER
Petitioner, / §
§ / ROBERT J BARRINGER
v. / §
§
DIANN M. BANKS, / § / FOR THE
Respondent. / § / TEXAS EDUCATION AGENCY
RECOMMENDATION OF CERTIFIED HEARING EXAMINER
Ms. Diann M. Banks requested the assignment of a certified hearing examiner under Chapter 21 of the Texas Education Code and HISD Board Policy for the purpose of conducting a hearing concerning the proposed nonrenewal of Ms. Diann M. Banks’ term contract as a school teacher.
The following Findings of Fact and Conclusions of Law are based on the testimony heard and the exhibits presented during the administrative hearing conducted on July 22, 2010 and July 23, 2010 at the Houston Independent School District Hattie Mae White Educational Support Center in Houston, Texas.
Ms. Diann M. Banks was represented by Mr. James T. Fallon III, Attorney at Law and Mr. Laurence W. Watts, Attorney at Law. Also present was Mr. Sergio Gallardo, legal assistant to Mr. James T. Fallon III.
HISD was represented by Mr. Arturo G. Michel, Attorney at Law, of Thompson & Horton LLP. Ms. Nicole Moore, Principal of Key Middle School, appeared on behalf of HISD.
Appearing as witnesses in the hearing include: Ms. Diann M. Banks, Ms. Wilma Delores Van Ness, Ms. Dionne Michelle DuBose, Ms. Thelma Macklin, Ms. Jackie Anderson, Ms. Mable Caleb, Ms. Soojin Lee, Mrs. Kori Keaton, Ms. Felecia Nanette German, Mrs. Diana Perez Gomez, Ms. Jeongae Kang, and Mr. Patrick Cockerham. Mr. Christopher Tritico, Attorney at Law, appeared in at the hearing to represent his client Ms. Mable Caleb.
Robert Barringer, Attorney at Law, is a certified hearing examiner appointed by the Texas Education Agency (“TEA”) to hear this matter and submit this Recommendation.
At issue is Houston Independent School Districts (“HISD”), Petitioner, proposal for nonrenewal of the term contract of Ms. Diann M. Banks, Respondent. See Chapter 21 of the Texas Education Code. HISD notified Ms. Banks of the proposed action by letter dated April 8, 2010. More specifically, HISD’s proposal for nonrenewal is based on the allegation that Ms. Banks failed to fully cooperate with the District’s investigation and gave conflicting accounts of what happened and who was involved.
FINDINGS OF FACT
After due consideration of the evidence and matters officially noticed in my capacity as Hearing Examiner, I make the following Findings of Fact.
1. The Petitioner sent official notice of the proposal for nonrenewal of Respondent’s one-year term contract in compliance with Section 21.206(a) of the Texas Education Code, HISD Board Policy Sections DFBB (Legal and Local) on April 8, 2010. (Exhibit 5).
2. Respondent timely filed her notice of appeal for the proposed nonrenewal of her one year term contract on April 23, 2010 pursuant to Section 21.251 et. Seq. of Texas Education Code, and HISD Board Policies DFBB (Legal), DFBB (Local), DFD (Legal), and DFD(Local).
3. The parties agreed to a waiver of the 60 day Deadline for Recommendation pursuant to the Texas Education Code section 21.257 and to extend by 45 days the Hearing Examiner’s deadline for issuing a recommendation.
4. A hearing was held on July 22, 2010 and July 23, 2010 regarding the proposed nonrenewal.
5. Ms. Diann M. Banks is employed by HISD under a one year teacher term contract for the 2009-2010 school year. (Exhibit 6).
6. The proposal for nonrenewal of Ms. Banks term contract is based on the following policy reasons from HISD Board Policy DFBB(Local):
- Insubordination or failure to comply with official directives;
- Falure to comply with Board policies or administrative regulations;
- Failure to meet the District’s standard of professional conduct;
- Immorality, which is conduct the Board determines is not in conformity with the accepted moral standards of the community encompassed by the District. Immorality is not confined to sexual matters, but include conduct inconsistent with rectitude, or indicative of corruption, indecency or depravity;
- Any breach by the employee of an employment contract or any reason specified in the employee’s employment contract;
- Falsification of records or other documents related to the District’s activities;
- Intentional or deliberate misrepresentation of facts to a supervisor or other District official in the conduct of District business; [or]
- Any reason constituting good cause for terminating the contract during the term.
(see Exhibit 5).
7. HISD withdrew its allegation of falsification of records or other documents related to the District’s activities as a basis for nonrenewal. (Trans. 13).
8. Ms. Soojin Lee is a teacher at Key Middle School and taught 6th grade students in 2008, and 6th and 7th grade students in 2009. (Trans. 58, 59).
9. Ms. Lee was a mentee of Ms. Banks. (Trans. 70).
10. Ms. Lee had the impression that Mr. Adebayo was her superior and the instructional coordinator for the math department. (Trans. 72).
11. Ms. Lee received lots of different kinds of materials from Mr. Adebayo, sometimes two or three times per day. (Trans. P60, P67). Mr. Adebayo provided the preparation materials for both the Stanford 10 and the TAKS test. (Trans. 60, 69) .
12. Ms. Lee did not believe there was anything suspicious about being handed some questions and typing out those questions. (Trans. 77).
13. Alone in her classroom, Ms. Lee received hand written materials from Mr. Adebayo a week before the TAKS test in April and was instructed by Mr. Adebayo to type them and return them to him. She complied with his instructions. (Trans. 60, 61, 73).
14. Subsequently, Mr. Adebayo provided packets of preparation materials that contained Ms. Lee’s typed questions. Each packet was numbered. Mr. Adebayo instructed her to keep track and account for each packet and not to miss any copy, and return them to him once finished. She complied with his instructions. (Trans. 63).
15. Ms. Lee is unaware of what happened to the packets once returned after being used as preparation material. (Trans. 64).
16. At the time Ms. Lee typed up the written questions and used them as preparation materials, she was unaware that these questions were the actual live 7th grade TAKS test questions for that year. (Trans. 65, 67).
17. Ms. Lee began preparing for the Stanford 10 after her winter break with the test at the end of January. (Trans. 68).
18. Ms. Lee found Ms. Banks to be a credible, truthful person who may be confused but wouldn’t lie. (Trans. 70).
19. Ms. Keaton had the impression that Mr. Adebayo was the math instructional coordinator. (Trans. 82).
20. Mr. Adebayo delivered handwritten notes to Ms. Keaton in her classroom, wherein he instructed her to type them up and to review them with the students after copies had been made. (Trans. 82). She complied with his instructions and typed them up and delivered the type version to Mr. Adebayo. (Trans. 83).
21. Ms. Keaton identified Exhibit 8 as the handwritten questions she received and typed up from Mr. Adebayo. In addition, Exhibit 9 consists of a copy of the test materials that she typed. (Trans 84, 85).
22. Subsequently, Mr. Adebayo provided classroom packets of preparation materials that contained Ms. Keaton’s typed questions. Each packet was to be numbered. Mr. Adebayo instructed her to count them, ensure that they were all accounted for, and return the packets to him once finished. She complied with his instructions. (Trans. 86, 87).
23. Ms. Keaton testified that Ms. Banks expressed that she had been instructed by Ms. Caleb and others to not mention Dr. Adebayo’s name in her interview concerning her handwriting being confirmed on the tests if she was questioned. (Trams. 89).
24. Ms. Keaton was a mentee of Ms. Banks. (Trans. 88).
25. Ms. Keaton found that Ms. Banks was an honest and professional employee of the District; she is a person whose word you could believe if she made a representation of a fact. (Trans 90).
26. Ms. Keaton could not recall the month when she received a call from an investigator Mr. Majlat concerning the investigation in this matter. (Trans 101).
27. Ms. Keaton first testified that she was actually told on Wednesday that she was going to be a witness, and then corrected her testimony to Monday. (Trans. 105).
28. Ms. Keaton is not aware of any contact involving Mr. Adebayo and Ms. Banks related to typing or rewriting any questions, or being a conspirator. (Trans. 106, 107).
29. Ms. Felecia Nanette German works as the Senior Manager for the department of Human Resources Department, Office of Professional Standards and oversees the case management of investigations done by third parties. (Trans. 108, 109).
30. Ms. German stated that there has never been an investigation into Diann Banks. (Trans. 121).
31. Ms. German stated that she is here to testify that she was in the room when Ms. Banks was being interviewed by Ms. Elizabeth Mata Kroger on January 20, 2010 wherein she alleges that Ms. Banks stated that Mr. Adebayo gave her the Documents, “Use these documents”, and that was approximately two weeks before the test, “And use nothing else” (Trans 122, 125).
32. No recording of the interview between Ms. Kroger and Ms. Banks exists as the interview was not being recorded by any means. (Trans. 123).
33. Ms. German indicated that she did not have a recollection of the exact dates regarding Interviews discussed in Exhibit 17 and that she did not examine the document that closely. (Trans 129).
34. Ms. German received Ms. Diann M. Banks’ response to Key Middle School Investigation report on March 22nd, 2010. (Trans. 143, 144, Exhibit 18).
35. Ms. Banks has been employed as a math teacher at Key Middle School for five years, beginning with August 2005. During the five years she always had been given math materials each year, after the Christmas break and throughout the semester before the testing begins, to teach and/or review with her students from the math department. (Trans. 147, Exhibit 18)
36. Ms. Banks contested the publicly released confidential Memorandum of Interview – Summary Report (Exhibit 17) as to who delivered to her the messy hand written notes; and, identified that person as a young, pretty black woman, approximately 25 years old, and had braids in her hair, who was acting like a Teachers Aide on March 17, 2010. (Trans 151, Exhibit 18).
37. Ms. German said that only just recently had an investigation began as to locate the person described in the March 17, 2010 response letter from Ms. Diann Banks. (Trans 152).
38. Ms. German identified that the daughter of Lottie Williams, HISD Custodian, is thought to be the aide identified in Ms. Banks response letter and that they have been trying to locate her within the last 30 days. (Trans. 152).
39. Ms. German is a member of the committee who voted to terminate Ms. Diann Banks because she was not forthcoming, because she did not tell the truth. (Trans 155, 156).
40. Ms. German stated that the witnesses Kori Keaton, Soojin Lee, and Ms Kang were identified as persons having knowledge of Ms. Banks untruthfulness and that Mr. Adebayo personally gave her the handwritten notes and told her to retype them. (Trans. 156, 157, 158).
41. Ms. Diana Perez Gomez is an attorney for Martin, Disiere, Jefferson & Wisdom who interviewed Ms. Banks regarding TAKS cheating. (Trans 181).
42. Ms. Elizabeth Kroger interviewed Ms. Banks on January 20, 2010. (Trans. 185).
43. Ms Perez Gomez interviewed Ms. Banks on February 26, 2010. (Trans. 185).
44. Ms. Perez-Gomez stated that when she interviewed Ms. Banks about the review materials that she was provided for that TAKS year that they were talking about, that she indicated previously she received the materials from Ms Gonzales who had been there the preceding four years, but Mr. Adebayo was the head of the math department for the current year and had his aides Ms. Brooks and Ms. Ashley pass out the review materials using a push cart. (Trans 182).
45. During the Ms. Perez-Gomez interview of Ms. Banks, Ms. Banks stated that she received a set of handwritten questions on a piece of paper from an unnamed, unfamiliar aide or volunteer at the school in January 2009 with the Math Department instructions to retype it. (Trans.184, 186).
46. During the Ms. Perez-Gomez interview of Ms. Banks, Ms. Banks stated that the hand written questions were messy on yellow legal pad and that she could not type it out, and thus re-hand wrote in print form. (Trans. 187).
47. During the Ms. Perez-Gomez interview of Ms. Banks, Ms Banks stated that she was just being doing what she was told when re-writing the messy test questions. (Trans. 187).
48. Ms. Perez-Gomez determined that the TAKS questions had not been distributed in January 2009, as per a sign-in sheet that Mr. Adebayo had signed to pick up the TAKS tests. (Trans 188).
49. Ms Perez-Gomez testified that “Ms. Kroger had been told that Mr. Adebayo handed here these written notes—or handed her review materials, I think it was. It was actually handed her review materials for that year.” (Trans 190).
50. The investigations surrounding Key Middle School were Ms. Perez-Gomez’s first investigations of a school district. (Trans 199).
51. Ms. Perez-Gomez testified that her belief that the report regarding Ms. Kang, after being interviewed by Ms. Mata Kroger, did not observe Ms. Banks receiving any handwritten notes from Mr. Adebayo. (Trans. 201, 202).