Calvin Ellis hearing 02.03.12

Reader Note: We’ve been asked about access to DJournal.com on Tupelo Public School District campuses. According to TPSD officials access to DJournal.com website has been temporarily blocked by the district on school campuses due to it becoming an issue with educational instruction. TPSD has made arrangements for Daily Journal reporter Chris Kieffer to continue to access the site and post on this blog during the Ellis hearing. DJournal.com will continue to cover this important news story. School officials said a full statement is coming soon explaining the reason behind blocking DJournal.com. – Todd Vinyard, Online Editor

UPDATE: TPSD officials inform us DJournal.com is no longer blocked at school campuses. Teachers had requested to see it for educational purposes in the classroom.

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Chris Kieffer’s blog post …

I will post updates to the bottom. The last update was at 2:12 p.m.

8:32 a.m.

The eighth day of testimony in Calvin Ellis’ hearing is about to begin. The hearing has covered all five days this week, plus three days in December. If it is not completed today, it is expected to be recessed until Feb. 13-14.

9:23 a.m.

The hearing has begun. Keith is resuming his cross examination.

Keith: I want to see if you can put all of these in layman’s terms so I can understand exactly what you are talking about. Lay people are going to have to understand very carefully what is required of a school system to make sure they do not violate these copyright laws.

Most people are familiar with the fact that there is a copyright law out there that may affect them in some way?

DeSalvo said yes.

Keith: We are talking about custom arrangements of copyrighted work?

DeSalvo: Yes

Keith: Isn’t it true it is necessary to get permission of every customized arrangement that you disseminate.

DeSalvo: Yes

Keith isn’t it true that making arrangements of copyrighted music and disseminating without permission, can that be a felony

DeSalvo: No

Keith: What can it be

DeSAlvo: Potentially if can be a civil infringement

Keith: Where someone goes to civil court and files a lawsuit

DeSalvo: Yes

Keith: Isn’t it true that unauthorized dissemination of copyright material is a violation of the law that may rise to a felony in certain cases

DeSalvo Reproduction and distribution of (an arrangement) can be a felony if a certain dollar amount is met and a certain (number of copies are distributed)

Keith: You are aware that Mr. Ellis arranged some of the songs for the October show.

DeSalvo said yes but said that she does not know which songs Ellis himself arranged.

Keith: For the songs, Mr. Ellis arranged, was he legally required to get copyright permission

DeSalvo said yes. Then said disseminating is a different right.

Keith: Was he legally required to obtain permission from copyright lawyers

DeSAvo he would have had to have permission to have a musical arrangement (of that piece). It depends on what he was using it for. There is an exemption. If he is using it for face-to-face classroom teaching that is exempt. IF it is a performance for educational purposes that is also exempt. The exemption for classroom teaching is also extended to online classrooms.

Are you aware how Mr. Ellis was using the music?

DeSAlvo: I understood students learned the music at school and performed the music at school and they were also going to perform at school.

Keith: You are saying there would be an exemption if that was in the classroom face-to-face instruction and there is a performance exemption. But if it was for preparation for a performance, then it was necessary for him to obtain permission from copyright holders?

DeSalvo he would have had to have permission to make an arrangement. (Talks about dissemination. Said teaching would not have to be in a classroom).

Keith: Put he would still need permission to arrange the song

Yes

Ketih: If he did not have permission to arrange he would have violated copyright law

DeSalvo: Technically yes.

Keith asks about the agreement with Anderson. DeSalvo said it is a license agreement. She said if it was a work for hire, it would have required Mr. Ellis or the school district to sign off on it.

Keith said it was signed by Calvin Ellis on behalf of Tupelo High School. Keith asked if the permission to arrange the music had to be obtained by Tupelo High School.

DeSalvo said that is what the document said and it allows Tupelo High School to use the song.

Keith said that on the contract it says that the licensee will submit a copy of the song and the arrangement.

DeSAlvo: I want you to understand what this is. This is what is commonly referred to as label copy. It gives appropriate credit so if anyone wants to use this (in the future, they will know where to go to get it….She said the item of submitting a copy is a matter of the contract, not of copyright law).

Keith said that the document said that until they sent a copy of that music, the agreement is not effective.

DeSalvo: Asks to explain this. She said often licenses go out and people neglect them and don’t sign it so often publishes say you have a certain amount of time to get it back to us or the contract isn’t valid?

Keith: Do you know if those songs had been arranged and disseminated to the students before this document was signed on Sept. 6?

DeSalvo: I think they were.

Keith: Should he have arranged and disseminated the music prior to signing the contract?

Here is my question. Would you advise your client to have the arranged music disseminated to students prior to the execution of that document?

DeSalvo: No

Butts objects to the form of the question. Does he mean execution by Mr. Ellis or by Cherry Lane?

Keith; You said you would not advise your client to disseminate that music to students prior to the execution of that contract by all students?

DeSalvo: We are kind of splitting hairs.

Keith: I want a direct answer. Would you advise your client to distribute music to your students prior to the execution of the contract.

DeSalvo: It is not a yes or no answer. Mr. Keith is trying to get me to say something I don’t want to say.

Butts said the witness should be afforded the latitude to answer the question as she sees appropriate.

Keith: My question is would you advise your client to have the arranged music and disseminate it to students prior to having exhibit 24 executed by the parties.

DeSalvo: It depends on where you are in negotiation of the contract. It is common for the two parties to negotiate the terms, arrange the music and sign the contract subsequently….Had there been no contact with Cherry Lane to use the arrangement and then contact to negotiate later, that would be a different scenario. In that scenario I will tell him (to go further with the negotiation first)

Keith asks if she had any information that Ellis had contract with Cherry Lane first

DeSalvo: No, I think that would have been initiated by Mr. Anderson and not Mr Ellis

Keith: You don’t have any knowledge of that

DeSalvo: Yes I do.

Keith asks if DeSalvo had any knowledge of the negotiations.

What information do you have that it was OK for Mr. Anderson to permit Mr. Ellis to disseminate the arranged music to his students prior to the execution of this document

DeSalvo: I can’t answer that question. I don’t know.

Keith asks if DeSalvo has any facts to show Ellis had obtained that permission by Sept 29

DeSalvo said he complied with the terms of the contract and payment ws paid….Based on the effective date of the contract and it wsa mailed with a check on Sept. 8, 2011. It was mailed with two copies at the license explains. That is all a publisher needs…Once a publisher receives this Mr. Ellis is good to go.

Keith: The use of that music had been taken place prior to Sept 6?

DeSalvo said yes but that is OK. She said that this license (secures any defect)

Keith: When you use arranged music without permission, you are going to have to get permission at some point?

DeSalvo: Yes

Keith: For the songs Mr. Ellis had chosen for other people to arrange, wouldn’t it be necessary for Mr. Ellis or the arranger to secure permission from the rights holder

DeSalvo: IT would be arranger’s job to do that.

Keith: You have no knowledge of the discussion between the arrangers and Mr. Ellis. There is no agreement. Wouldn’t it be necessary for Mr. Ellis and the arranger to ensure the rights had been obtained.

DeSalvo: If Mr. Ellis had been told by the arranger to do that then Mr. Ellis should have done that (Said that without a direct agreement, the arranger is the author of the work and would be responsible for getting the permission)

Keith: You are assuming a lot of facts that should be laid out in an agreement between Mr. Ellis and the arrangers?

DeSalvo: You don’t have a written agreement. (Said if you did, it would have been different.)

Keith; Since Mr. Ellis didn’t have written agreement with the other arrangers, have you seen any written agreement defining who was required to obtain permissions?

DeSAlvo: In the absence of any document it is the arranger’s responsibility.

Keith said there could have been discussions. DeSalvo said that doesn’t change the law. That a verbal agreement doesn’t change authorship. Said that under copyright law when there is an arranger who is the author, if there is a written agreement transferring the authorship, it would change the responsibility. But she said you can’t shift the responsibility without a written agreement.

Keith: When Mr. Ellis asked other arrangers to secure arrangements wasn’t it incumbent on him to make sure (arranger was getting permission)

DeSalvo said if he knew about it.

Keith:

She said with the knowledge she has, even if it wasn’t a contractual obligation, she would want to understand that care, but Mr. Ellis didn’t have that knowledge….Arrangements are different things….You have a musical composition and you put a fiddle in it, that is an arrangement….When you are talking about cover versions that doesn’t require an arrangements…Just putting music with it doesn’t require permission

Keith: AS a show choir director, you would at least expect Mr. Ellis to understand that copyrights are an issue and you need to seek help to understand it.

DeSalvo said she thinks every music educator should seek knowledge about copyright.

Keith asks about which songs Ellis had gotten clearance of that she had knowledge of. DeSalvo said she does not know the song titles. Knows he got some through Tresona.

10:01 a.m.

Keith proposes a hypothetical. Suppose a show choir performance goes forward without permission having been gotten for arrangements. Suppose someone films that performance and puts it on YouTube. Would the district be liable for that?

Butts objects, saying there is no evidence Mr. Ellis uploaded anything to YouTube and that it is not factually complete for the witness to answer.

Overruled

Keith essentially repeats the question

Butts objects again to the form of the question. He asks who the someone who videos is, whether it is a parent, an official of the school district, someone who happened to go.

Keith said he is asking about the potential for risk in that situation?

DeSalvo: It is difficult to answer that question because it depends on who arranged the song. Said the performance itself is not the issue (and would not pose any liability to Ellis or the school).

Keith: Let’s suppose Mr. Ellis arranged the song. Could that pose liability?

DeSalvo: Probably if publisher heard that song, if they wanted to, they could get it pulled off of YouTube and contact Mr. Ellis or the school district about licensure. That is generally what the publisher would do because they would rather make money than sue people.

Keith: Where Mr. Ellis arranged the song, that would be a violation by Mr. Ellis and the school district?

DeSalvo: Not by the school district, potentially by Mr. Ellis.

Keith said would the school district be liable if Ellis had done the arrangement when his contract provides a supplement that pays him for the arrangement?

DeSalvo said if there was a direct infringement by Mr. Ellis the only way the school district would be liable would be secondary infringement….(School district would have to know or have reason to know about the violation and contribute to the violation or it would need to be found that the school district had the ability to supervise Mr. Ellis and had direct financial gain as a result of his violation. She said she doesn’t see that in this hypothetical.

Keith: Did you say a knowing violation of copyright law can bring a $150,000 fine.

DeSalvo said it is not a fine it is a statutory violation. The maximum fine is $150,000 (for, I think she said willful violation, or intentional violation).

Keith refers to email from Ellis to Greenburg where Ellis said he first became aware of copyright law at the end of the previous school year and that he now knows that it is something every arranger must get.

Keith: Would you read this email as saying Mr. Ellis now understands what is required of an arranger.

Question over who the word “we” in the email refers to.

Keith asked if DeSalvo knows who Mr. DeSalvo worked for. DeSalvo said Tupelo Public School District. She said we would be he and a group of people. Maybe some arrangers.

Keith: Did you ever ask Mr. Ellis what he meant by the word we.

DeSalvo said no

Keith: See where he asks what is the fine for performing songs without permission. I would never purposefully want to do something like this but I am worried about a song being denied.

When Mr. Greenburg used term $150,000, that was obviously maximum fine.

DeSalvo: It is not a fine, it is a statutory damage.

Keith: But the maximum amount is still $150,000.

DeSalvo: Yes, and those are reserved for the most extreme cases.

Keith: Would you advise a school district to go forth in a musical performance in their auditorium if you knew the performance contained songs for which permission to arrange hadn’t been obtained.

DeSalvo: Would I advise a school? If I knew them in advance I would probably tell them not to, but the performance is exempt

Keith: Are you aware Mr. Ellis had a contract that paid him a supplement for being a music director?

DeSalvo said she heard that in the testimony.

Keith asked if she was aware Ellis’ contract required him to (maintain professional competence though trainings to improve him as a music director)

DeSalvo said no.

Keith asked if DeSalvo is aware that another employee of the school obtained the necessary arrangements for her show choir.

DeSalvo said she had no idea what Ms. Williams did. Keith said it is Dr. Williams.

Keith asks if DeSalvo is aware of music organizations to which Ellis belonged.

DeSalvo said no

Keith refers to exhibit 5. It is an agreement with an arranger.

Keith: If those songs that Steve Anderson arranged and supplied to the school district, if Mr. Ellis never obtained permission but if he used those songs and disseminated them would that have been a violation of the law?

DeSalvo said by Mr. Anderson, not by Mr. Ellis. She said that this isn’t a work for hire agreement so that Anderson would be responsible.

(She said that it is a contract, not a work for hire agreement)

Keith: Don’t you think it would be incumbent of choral director to ensure that permission would be obtained.

DeSalvo said, if Ellis had knowledge of it. Said that would be a better practice.

Keith: It certainly creates potential for a lawsuit involving both Mr. Anderson and Mr. Ellis and the school district.

DeSalvo said it would for Anderson. She said maybe for the school district involving the contract issue.

Keith refers to another email. Asks DeSalvo if Ellis would at least have a rudimentary knowledge of his requirements for copyright.

DeSalvo said it seemed like he had some knowledge by that date (April 28).

Keith: If he had been to Hal Leonard website by that date, (would it appear he had even more knowledge)

DeSalvo said if he had been to the website yes.

Keith: With the knowledge he had, is it reasonable for him to wait until September to secure permissions for those songs.

Butts objects

Keith: Do you have any evidence he did anything before September to arrange permission to arrange other than the Steve Anderson contract.

DeSavlo: If the contract was signed Sept. 6, it would have had to be in the works sometime before Sept. 6. Sometimes you can turn that around in a couple of days, sometimes it takes longer….Said you don’t get permission from the song writers, you get permission from the publishers….two weeks to 30 days is reasonable.

Keith: What documentation do you have to indicate (he started working on copyrights before September).

DeSalvo said the Greenburg emails and those licenses. She said the fact that they were executed on Sept. 6 means that work on them would have had to have begun prior to that.

Hearing takes a 10-minute break at 10 a.m.

10:46 a.m.

Keith is referring to an email in which an arranger had to pay Hal Leonard for not having gotten previous permission in 2009. It includes a contract requiring payment for the license and a fee for not having had the right previously.

Keith refers to an email exchange that it was necessary to clear this up before going forward with anything else.

DeSalvo said she doesn’t know if it was from the email but she learned somewhere that something had to be cleared up.

Keith: In this agreement, it assigns the responsibility to Tupelo High School as the licensee, right?

DeSalvo said yes.

Keith asks who paid that $1,000, was it the arranger or the Tupelo High School booster club

DeSalvo said it seemed to her that Alderman said have paid it. But Keith notes the contract said that the school district was the one that was supposed to pay it. DeSalvo said that is correct.

Keith would you agree that this contract clearly indicates that there are some responsibilities to ensure permission for songs you are going to arrange. DeSalvo said yes.

Keith refers to an email from Ellis to Stewart….It said that Ellis plans on using many of the arrangements he did the year before during this year (2011-12)

Do you have any knowledge whether Mr. Ellis had permission to arrange those songs? DeSalvo said she did not.

Keith if he used those songs, would he need permission to arrange them? DeSalvo said yes. She said instrumentation doesn’t require permission but if you are changing how the work is performed, you would need permission.

Keith: If Beyonce has a song Mr. Ellis wants to arrange, it would be necessary for Mr. Ellis to obtain permission from the rights holder

Keith: How much are you being paid to do this investigation and to testify.

DeSalvo: I’m not quite sure. I’m not there because Mr. Butts or Mr. Ellis are not able to pay me. When I was down last time, I was paid a flat fee of $2,000.

Keith: Do you have an hourly rate as an attorney when you are engaged in copyright litigation.

DeSalvo: Last year it was $250 an hour and this year it is $275.

Keith: Are you charging on an hourly rate for this or just a flat fee?

DeSalvo: I am keeping time on my hours in case they are able to pay me and I will see if they are able to pay me on that. If they can only pay me a flat fee, I will take that.

Keith: How many hours have you accumulated?

DeSalvo her time is probably in excess of $3,000 and her travel time 11 hours which she did not bill for. This past week she put in in preparation four to five hours plus her testimony yesterday and today. She has also been on standby all week (but she is not charging for that)

Keith: If I told you some of the arrangements had been done by Mr. Ellis during the 2010-11 school year in which he did not obtain permission, would that change your opinion you stated yesterday that you did not have any information that Mr. Ellis violated the law?

DeSalvo: If Mr. Ellis arranged songs without permission during the 2010-11 school year, there is potential liability there if he did that without permission.

Keith is finished with the witness. Butts begins redirect.

Butts: If Mr. Ellis had arrangements during the 2010-11 school year, there would be potential liability to whom?

DeSalvo: To him for direct infringement but it depends on if he used the song. (You can do it in your house and it is fine, but if he took them and used them that would be direct infringement)

Butts: Assume worst case scenario, Mr. Ellis created arrangements that would qualify as an infringement and assume he took that to show choir and taught the show choir the arrangement and then that arrangement was performed in a public performance. Assume there is no contract for hire between Tupelo Public School and Mr. Ellis to do the arrangement and also assuming the arrangement was performed under the arrangements you mentioned for schools, and the worst case scenario, would there have been any liability on the part of the Tupelo Public School District on the part of the defendant.

Keith objects, saying question is too broad.

Butts re asks the question

Butts: I would like you to assume that during 2011, if Mr. Ellis for the performance in 2011, he would have started working on arrangements. I’d like for you to assume he did create arrangements. Assume he did not get copyright permission from the copyright holder to create the arrangement. Assume he took it to his show choirs and taught his arrangements and there was no written contract between Tupelo High School and Mr. Ellis and these songs were performed on the school premise and admission fees were charged and they were performed at competitions but Tupelo High School received no private gain from those performances, would the TPSD have any liability for Mr. Ellis’ arrangements without permission.

Keith objects unless Butts includes in his hypothetical that Mr. Ellis is under contract with this school district as show choir director. Butts said there is no contract between Ellis and the school district to arrange music. Compton overrules objection.

DeSalvo: (In the hypothetical) The school district would not be liable for the arrangements Mr. Ellis did. TO be perfectly honest, if it was within the course and scope of his employment to prepare arrangements, the employer could be liable. If there is no specific duty that is required by his job….if it is not something it is specifically required by his job to do, there is no liability.

Butts: In the situation I just gave you, the liability would be Mr. Ellis? DeSalvo said correct.

Butts refers her to agreement where Hal Leonard gave permission to David Alderman for “Ask the Lonely” and “I Drove All Night.”

Butts: Is it your understanding there was no contract for hire between Tupelo High School, Tupelo School District and Mr. Alderman for those agreements?

DeSalvo said that is her understanding.

Butts: Would you know why this agreement from Hal Leonard makes Tupelo High School the licensee rather than David Alderman.

DeSalvo said it is because the school will be using the work. She said Hal Leonard and Cherry Lane and others grant permission to the arranger to arrange but make the school the licensee to perform.

DeSalvo said the publisher still owns the arrangement, this is just a license to use it.

Butts: Since Mr. Alderman did not get permission to arrange the songs back in 2009 and there was no contract for the arrangements, who infringed Hal Leonard’s copyright in 2009?

DeSalvo said Mr. Alderman.

Butts: From your knowledge of dealing with arrangers, would Mr. Alderman be aware of that fact.

Keith objects and Compton sustains.

Butts refers to correspondence

Keith said the language is clear who paid the fee for not having permission to pay the arrangement (the school district was obligated to pay it by Tupelo).

Butts: Has any fact been brought to your attention on cross examination by the district

DeSalvo: No, although since yesterday. I found this in the email in exhibit 5 when Mr. Alderman said he paid the fee for the song. Yesterday I was unclear about it.

Butts: Do you stand fully on your testimony given in this hearing yesterday?

DeSalvo said yes.

Butts is finished with DeSalvo.

Next witness will be Lynne Johnson.

11:50 a.m.

Johnson has children in the school district.

She lives in Tupelo. She has two daughters at Ole Miss who were in show choir for four years and her son is at the high school. He is not involved in show choir.

Butts: Tell me about your involvement with show choir and the booster club?

Johnson said her girls both became part of Ellis’ show choir in the same year. One was a junior and one was a freshman. She was involved for the next four years.

“It the most amazing experience for them and for us.”

Johnson said she became known as the snack lady and she was involved in every practice parents could be part of.

She said that it was a lot of work.

Butts: From your observation, what is the work load on the children and Mr. Ellis?

Johnson: I don’t know how he physically did it, but he was always there with an amazing attitude and the kids respected him. There were long hard nights getting ready for the competitions and the shows.

The loved working with Calvin. They respected him and looked up to him. There was a lot of sweat put into it but they loved working with him.

Butts asks about the trip to Petal.

Johnson said they arrived at school at 7 a.m. Sound Wave always competes first.

Keith said it would be important here to voir dire the witness about her knowledge of previous testimony. Compton said Keith can do that on cross.

Butts: We’d like to know about your participation.

Johnson said she was in the room with Wave Connection the entire time. She specifically remembers that competition because her daughter was sick.

Sound Wave performed, all of the parents go out, we are so excited because we love our show choir and we love our kids. Then we go out when Wave Connection performs and we wait to see who makes finals.

Johnson: I do remember while we were there the Petal parents were very rude to us. I just don’t think they like us. It is just a rival like any sport.

Butts asks about any rules handed out by Petal representatives on arrival

Johnson said she is not aware of any rules

Butts asks about the room. Johnson said they wait to see when everyone leaves that the room is put exactly back in order. She said that just because of the way they were treated, they wanted to make sure room was spotless.

Butts: Was the room our show choir stayed in in Petal trashed?

Johnson: No. When I saw the 23 accusations that came out about Mr. Ellis I was at the Link Centre. I was sitting there reading them and when I saw the accusation that room had been trashed I took that against myself. I am not going to say the room did not get messy. We were in two rooms that were connected to each other. (Two rooms connected by a door. Put girls in back room and boys up front). We are trying to keep these kids comfortable. It is a competition. They are there long hours. The room does get messy….but a group of parents make sure it is always spotless when we leave. We would never want Tupelo’s reputation to be anything but the best.

Butts asks about whether boys and girls changed in the same room

Johnson: We do not change in the same room, but I will tell you. The way they set us up, the girls have to walk through the boys room. There may have been times when they walked through that the boys were in their boxers but I do not find that offensive (Said that was because of the way the room was set up. That is why they put the girls in the back room. Said parents were there to make sure nothing inappropriate happened)

Butts asks about her experience in show choir?

Johnson: You can ask my girls to this day, the thing they remembered that left the biggest positive impact on them at high school was Mr. Ellis and the show choir he was in. I love him. He is the best teacher and mentor and person I have ever known. My girls loved it. They worked very hard. They didn’t mind being there until midnight.

(I can hear sniffles from people in the audience)

Butts asks if she has found Ellis to not be forthright?

Johnson said all of her friends have always thought of Ellis as honest and forthright and that she hadn’t talked to anyone who thought anything else

Butts asks about Mrs. Ellis

Johnson said he always thanked his wife. She thought that union between the couple was so strong. She said Jauna Ellis was always there for the show choir and she is a great lady.

Butts asks about accusations of wasting money. Johnson said it was the parents money and that they knew it was going toward their kids.

Butts: Are you aware Mr. Ellis would have choreography arranged and then have it rearranged?

Johnson said she isn’t the best person to ask about that

Butts asks about planned New York trip

Johnson said it was a big deal to be invited to perform. They had several meetings where they discussed how expensive it would be. They fundraised and tried to raise money, but they couldn’t make the money. They were told they probably wouldn’t be able to go. Then New York contacted Calvin and said we really want you to go and we will try to do something to help you, find a sponsor. We grasped on to that small hope but unfortunately it didn’t happen.

Butts asks Johnson if she perceived a lack of supervision. Johnson said never. She said there were 5 or 6 parents who were always there. She said with two show choirs you need help from parents and that he always made sure parents were there. She said that during her four years, the kids were never unsupervised.

Butts asks about Ellis making kids run laps around the PAC

Johnson said that didn’t happen while her children were there.

Butts asked if Ellis didn’t maintain discipline of the kids. Johnson said no and that if Ellis needed to do something to discipline kids she would have supported him 100 percent.

Butts asked about the experience for her girls being in show choir?

Johnson: IT was such a wonderful experience. I feel very blessed he was our director. Getting to know him as a person .

Butts was Mr. Ellis unfair among the kids for any reason, race or financial condition?

Johnson said never. She said she remembers a student who didn’t have financial means and they made sure they got that child and brought that child to practice.

Butts: Did you child participate in hair and makeup nights.

Johnson said they did. She said she never had concern about her kids being there. She said it was a team building event. She said Calvin really wanted tm to participate but he was never like if you don’t do this, this is what will happen to you.

Butts: Are you aware of the allegations of this last hair-and makeup night?

Johnson: I am aware of what happened. I think it is ridiculous. AS a mom of two seniors who graduated from the high school, I feel like someone could put me on trail because I had children over at my house the night before school began and I didn’t know they had cans of spray paint and spray painted “09” on neighbors mailboxes.

Johnson said that happens with kids. She said she has seen pranks happen and has had them happen to her.

Butts: As a parent of girls, with a prank involving condoms would you be offended?

Johnson: No. Boys are boys. Boys are going to do stupid things. You tell them not to do it and they are going to do it. I don’t think it was anything where a teenage boy thought about being sexual. It is but they are just dumb boys. Bananas and condoms? Really? They are so creative. (Laughs)

Butts asks about Ellis’ influence

Johnson: We feel very blessed that for the four yeas my girls were involved in show choir, he was our director. He is a wonderful person, a wonderful influence. I would love to see my son involved in show choir with him

Butts: Is Mr. Ellis perfect

Johnson: No one is perfect. He is not prefect. I’m not perfect. The kids were not perfect.

Butts: Is show choir competitive?

Johnson: It is extremely competitive. The thing I loved about show choir is I watched these boys who played soccer and would never think about being involved in show choir get involved. It is very physical but it is not that contact sport where you are running into people. The kids he got were kids who would not have been involved but he saw the talent in them. The reason they did it was because of him, because they admired him and respected him.

Butts: Are the kids competitive among themselves….Have you observed children and their parents where they would like to be on the front row or they deserve a solo

Johnson: When you try out for something you are going to want that. But just like anything, you don’t get it, you don’t make it. Sometimes you make it and sometimes you don’t.

Butts: How would you characterize us being competitive with other schools

Johnson said they were competitive, they worked hard and they wanted to win.

Butts: Was show choir supported by community?

Johnson yes, parents were very involved. WE want to be involved because we loved Calvin as a director and it was a good group of kids. We would have been excited it a principal or someone from central office would come to our shows to see how great they were.

Butts asked about the size of the group

Johnson said it was two large groups and they had a large group of people who came to competitions and when they cheered they were very loud.

Butts: Do you have an opinion whether our show choirs acted appropriated and were a good example of Tupelo High.

Johnson: Because I was always there I do believe we represented our school district in a good way. We were raised to know right from wrong. WE didn’t ever want Tupelo High School to come out like they’re this or that. We always behaved and that is why we had parents involved. One person can’t supervise that many kids. As parents we were always there to make sure our students behaved and did the right thing.

Butts finishes his examination and Keith begins his cross examination.

Keith: Have you ever served on the booster board?

Johnson: No, I just served on the hospitality committee.

Keith: You were as

Johnson: I attended a meeting at the Link Centre when Mr. Butts presented the 23 accusations against Mr. Ellis. The one concern in Petal popped out to me. I told David if he would like me to testify and he said yes.

Keith asks whether Johnson had read the blogs. She said she read about the copyright lawyer and part of Valerie Whitwell’s. She said she didn’t really read about the pranking. She read some of Mr. Meadow’s. Part of Terri Stewart’s and part of Mr. Ellis.

She said she is familiar with the testimony that has occurred.

Keith objects to the witness because she has violated law of sequestration.

Butts said the rule applies to witnesses remaining outside the courtroom and that there is no way to insulate witnessed from the newspapers or the blogs or what they made have read. To insist on that kind of sequestration is absurd. Said this witness testified on her personal knowledge and not on the testimony of anyone else.

Compton said he will reserve a ruling on it.

Keith said she knew even before these proceedings that she was going to testify and that Butts should informed his witnesses not to keep up with it.

Compton said he is going to reserve a ruling on it. He will review it and make a ruling this afternoon.

Keith: Were you disappointed in the results from Petal. Johnson said, no. They were very close. They were in second and were very close to the first place team.

Keith asks if Ellis ever told parents that someone from Petal had raised concerns about Tupelo students

Johnson said she heard Ellis ask the boys if they had been disrespectful. She said that the Petal parents were rude to them. She said Ellis told the boys that when an adult talks to you, you need to be respectful of them. Johnson said the parents told Ellis they would keep a better eye on the boys.

Keith: Do you recall where you were when you heard the New York trip had been cancelled.

Johnson said she does not remember. Keith asks about her getting an email about the trip being canceled, was that when she found out. Johnson said she didn’t remember.

Keith asks about students running laps around the PAC. She said she heard that happened this year and her daughter graduated lat year.

Keith asks if Johnson went to all of the rehearsals when her daughter was involved. She said she went to most of them. She said she did not go to all of them, there were many rehearsals and a lot of late rehearsals.

Keith asks if Johnson allowed her daughters to spend the night at the hair and makeup night. She said they were allowed to spend the night but if they did not spend the night she called the parent were they were staying and told Jauna that they were not spending the night.

Keith asked Johnson what is her knowledge of the Friday night pranking incident.

Johnson said she heard the girls spent the night at the Whitwell house with Jauna and the boys were at Ellis’ house. That the girls wrote things on the boys’ cars and the boys bought things and went over and pranked the girls cars. She said she had heard it was all in fun and that the kids were laughing about it and that it got out of control.

Keith asks about pranks that had been pulled on Johnson. She said people had written either 2009 or 2011 on her mailbox.

Keith asks if her children were involved in pranks similar to what happened on Sept. 30. Johnson said they were not.

Keith: Were you at board meeting in May of 2010 when Mr. Ellis stood before board and told where he was over budget?

Johnson said no. She said she did not attend any board meetings.

Keith has no further questions. Johnson’s testimony is completed.

Hearing breaks at 11:45 a.m. It will resume at 1:05 p.m.

1:09 p.m.

The hearing resumes in closed session.

1:26 p.m.

Hearing is back in open session at 1:19 p.m. Parent Kim Burleson is testifying. She was also testifying during the closed session.

Butts asks about her daughter’s experience

Burleson: I can’t tell you how positive it has been for her. She has thoroughly enjoyed all four years….As far as school activities, it has been a major part of her education. (It will be a major part of her high school experience)

She said she has also had a positive experience as a parent. She said her daughter has stepped out of the box under Ellis’ guidance.

Butts asks about her observations on his mentoring of the kids.

Burleson: He is an excellent mentor…It always amazed me how he could encourage them all to be part of a group. I was impressed how he could mentor all different kids of kids. He could always get them to bond, kind of like a team.

Butts: Have you found him to be forthright and honest?

Burleson: As far as I have dealt with him yes.

She said he has treated the children fairly regardless of their financial situation of their race.

Butts: Have you ever had an occasion where you had an impression where Mr Ellis failed to supervise these children?

Burleson: No. When you are dealing with a group of teenagers, you can’t be one on one with them all of the time. Said has never had a concern.

Butts asked if she had seen Ellis endanger children. She said no.

Burleson said she feels he is an excellent show choir director, as far as her experience goes.

Butts: How would you say his show choirs have performed?

Burleson: Very professionally. I am not sure of the record but I would say that we’ve placed (in every competition been in).

Butts: Have you ever observed any incident where you felt the students were not acting appropriately or where they brought disdain on Tupelo High School

Burleson: No, not from what I witnessed.

Butts is done with his questioning.

1:30 p.m.

Keith asks if Burleson has ever served on choral booster board. She said she was treasurer for Sound Wave for one year, two years ago

Keith: Did you ever hear complaints about Mr. Ellis’ handling of money for show choirs?

Burleson: No

Keith: What about his selection of students for the show choirs

Burleson said just common complaints from parents about their children not making a particular group.

Keith asks about the trip to Petal. Asks if she heard any complaints by Petal officials to Mr. Ellis about behavior of students.

Burleson said she had never heard that complaint.

Keith: The year you were treasurer for Sound Wave, did you end that year in a deficit position?

Burleson said Terri Stewart was treasurer for all groups and each group had its own treasurer. Stewart was the one who had the final figure and she does not know what that was.

Keith: Did you attend any booster club board meetings.

Burleson said yes.

Keith: What about the one in May 2010 where Mr. Ellis talked abut the budget issues. Burleson said no and that she does not recall that discussion taking place.

Keith is finished his cross examination, and Burleson’s testimony is complete.

1:37 p.m.

Next witness is Stephanie Maxcy. She lives in Tupelo and has a child at Tupelo High School, a senior.

Maxcy said both of her girls are cheerleaders.

Butts: Tell me about booster club for cheerleaders.

Maxcy said she has been involved with the cheerleader booster club for six years. Said it is literally to boost cheerleaders and support them. We support the coach as needed.

Butts: Asks about nature of cheerleading.

Maxcy said they are athletes like any other sport. They are competitive.

Maxcy said they have camps and competitions.

This year she is treasurer, the previous two years she was president of booster club.

Butts asks if cheerleaders take overnight fieldtrips. Maxcy said they do as part of camps and various competitions. She said that nationals includes overnight travel.

Lawyers have a sidebar conference.

1:41 p.m.

Butts asks Maxcy about the numerous trips that have been taken that require school approval. When you talk about nationals you are talking about going to Disney World?

Maxcy said that is correct.

She said kids have traveled by bus and have flown out of Birmingham.

Butts: Has an administrator from the Tupelo Public School District accompanied the group on the trips?

Maxcy said not any trips that she knows of.

Maxcy said they are going to nationals next week.

Maxcy said they have an administrator going with them this year, on the trip next week. That they hadn’t had an administrator go with them in the past. She said it was just recently that she had ever heard that an administrator from the district had to be with the group on its trip.

Keith declines cross examination. Maxcy’s testimony is complete.

2:12 p.m.

Next witness is Deborah Bullock. She is a teacher at Tupelo High School. She has been there for 12 years. She is a choral director. She said she has had the same job over the last 12 years.

She teaches guitar, keyboard, music theory, general music, she helps with the two show choirs. She said she assists the show choirs by accompanying them.

Butts: You have been there before Mr. Ellis was there and you have been there since.

Bullock said she has worked with Vicky Wilson and other choral directors, Quinn Harris, Suzy Williams, Debra Atkinson.

Butts: In the last five years, since Calvin Ellis got there,….I understand he came on as an assistant choral director with Vicky Wilson as his immediate supervisor. Bullock said that is correct. She said Wilson was also her supervisor.

Butts asks what coach assistant means in the schedule?

Bullock: It can mean a number of things, it all depends on how we work together. We can take the role while they start the class. Said she has accompanied the class, it can mean working with sectionals or singing with the class.

Butts asks about term assistant choral director. Bullock said she is an assistant in some classes. She is choral director, a music teacher and an assistant choral director.

Butts asks how it is determined who will teach which class?

Bullock said that is determined by the counselors. Usually they are informed during the summer. She said you never know from year to year and it usually depends on how many students sign up for a class and whether that class makes. “It is really not in our hands.”

Butts asks how the three choral teachers confer

Bullock said they try to confer with each other as much as they can. Sometimes their schedules don’t allow them to do that. They try to work together as much as they can

Butts asked if Wilson was Bullock’s supervisor while she was there, and Bullock said yes. Butts asked he took Wilson’s position when she left, and Bullock said Ellis did.

Butts: Did he then become your supervisor?

Bullock: I would say so, yes.

Butts: Would he also become the supervisor of the other choral teacher in the program?

Bullock: I would say so yes.

Butts asks Bullock to describe her working relationship with Ellis.

Bullock said she was accompanist for different choirs and show choirs he directed. They spent a lot of time together. They share the responsibility of teaching the structure band group. They each worked with half of them and put them together. They have been to numerous conferences together and have a good working relationship.

Butts asks Bullock about any problems she had with Ellis.

Bullock: I have never had a problem with Calvin. I’ve worked with a lot of different directors. I have never had one cross word from Calvin since I’ve been working with him.

Bullock said it has been a pleasant experience working with him. She said Ellis has award-winning show choirs and award winning choirs. She thinks he is a very good choir director.

Butts: You do make a contribution to that.

Bullock: I try

Butts asks Bullock if she would trust Ellis

Bullock: I would trust Calvin with anything. WE have done so much together and he has always been the perfect gentleman to me

Butts asks about Ms. Ellis. Bullock said she has a lot of stage experience and a lot of hair and makeup experience and she volunteers he time to help her husband with all of that.

Butts: Are you aware of any incident where he failed to properly supervise his students?

Bullock: I would say he has always supervised his students to the best of his ability.

Butts: Would you have to agree he has to rely on people like yourself, the other choral teachers, chaperones and parents to help him in that task.

Bullock : I would, it is a tremendous task.

Bullock said she has never known Ellis to endanger a child

Butts: Would you know any reason why you would not want to continue working with him?

Bullock: No, I know no reason why. I’d be glad to continue working with him.

Butts finishes his examination.

Keith begins the cross examination.

Keith: Do you know whether or not Mr. Ellis’ contract was changed to reflect director of choral activities after Ms. Wilson left?

Bullock said she does not know, she has not seen Ellis’ contract.

Keith asks if Ellis has ever supervised Bullock to evaluate her performance and Bullock said no. He asks whether Ellis gives the administration an evaluation of Bullock’s job performance. She said she didn’t know, maybe if they asked him.

Keith asks about what awards Ellis’s show choir had won. Bullock said she does not know which years.

Hearing goes into closed session at 1:59 p.m.

The hearing opens back up, and Bullock is finished with her testimony.

The hearing is done for today. It will recess until Monday, Feb. 13 at 8:30 a.m. at the Hancock Leadership Center.