CHARLES S. TALBOTT, Petitioner,
TEACHER STANDARDS & PRACTICES COMMISSION, Respondent.
Argued and submitted on February 08, 2013.
Teacher Standards and Practices Commission 900885
Barbara J. Diamond argued the cause for petitioner. With her on the briefs was Diamond Law.
Erin C. Lagesen, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.
Before Schuman, Presiding Judge, and Wollheim, Judge, and Duncan, Judge.
In this administrative case, the Teacher Standards and Practices Commission (TSPC) alleged that respondent, a teacher, had violated the TSPC's administrative rules in numerous ways. After a hearing, an administrative law judge (ALJ) issued a proposed order determining that respondent's conduct did not violate any TSPC rules. On review of the ALJ's proposed order, the TSPC determined that respondent had engaged in four instances of gross neglect of duty in violation of OAR 584-020-0040(4) and ORS 342.175 by giving false answers to two questions on an employment application and leaving an offensive letter for the parent of a student and an offensive book for respondent's former principal. As a sanction for the violations, the TSPC suspended respondent's teaching license for six months and imposed four years of probation after the license is reinstated.
Respondent seeks judicial review, contending that, with respect to his answers to the questions on the employment application, the TSPC erred by modifying several findings of fact in the ALJ's order without clear and convincing evidence in support of its new findings. ORS 183.650(3). With respect to the written material that respondent left for the parent and the former principal, respondent contends that the TSPC misapplied its administrative rules by disciplining him based on conduct that lacked a sufficient nexus to his professional responsibilities and that the TSPC violated Article I, section 8, of the Oregon Constitution by disciplining him based on the content of his speech. Finally, respondent contends, the TSPC failed to adequately explain its choice of sanction.
On de novo review of the modified factual findings, ORS 183.650(4),  we disagree with the TSPC's modifications of the ALJ's findings of fact and find that respondent did not knowingly give false answers to any of the questions on the employment application. In light of that finding, the TSPC cannot discipline respondent for his answers on the employment application. We conclude that the TSPC did not err in determining that respondent's conduct in leaving an offensive letter for the parent of a student constituted gross neglect of duty under OAR 584-020-0040(4) and ORS 342.175. Respondent did not preserve a constitutional challenge to the discipline imposed for his letter to the parent; accordingly, that basis for discipline remains valid. However, the TSPC did err in determining that respondent's conduct in leaving an offensive book for his former principal constituted gross neglect of duty; thus, we do not reach respondent's constitutional challenge to that basis for discipline. In light of our disposition of his other claims, we do not reach respondent's argument regarding the appropriate sanction, and we reverse and remand.
We take the facts, other than the modified factual findings, from the final order and uncontroverted evidence in the record. Kniss v. PERB, 184 Or.App. 47, 49, 55 P.3d 526 (2002). We discuss the modified factual findings in greater detail in our analysis.
Respondent, who had prior teaching experience but had not taught in Oregon in several years other than as a substitute teacher, was hired to teach middle and high school language arts in the Central Linn School District for the 2006-2007 school year. Before school started for the year, the principal and the athletic director at Central Linn High School were fired. An assistant principal was briefly made principal, but that person was also fired and, before the first teacher in-service training day in August 2006, Julie Knoedler became principal. On that day, Knoedler and the superintendent of the district, Kermit Jones, approached respondent and asked him to be the interim athletic director. Respondent accepted the offer and took over the duties of the athletic director.
James Kizur was Central Linn's new football coach for the 2006-2007 school year. In mid-September of 2006, Kizur approached respondent shortly before a football game and asked whether a particular player should be allowed to play. Respondent concluded that the player was facing a suspension but that he should be allowed to play in that evening's game. A few days later, based on the decision to allow the player to play, Jones asked Kizur to resign as football coach. Before a school board meeting to consider Kizur's situation, Knoedler and Jones told respondent that Kizur had "tried to work" him. Nevertheless, respondent spoke in favor of Kizur at the school board meeting, and the board voted to retain Kizur as football coach.
After that incident, the relationship between respondent and Knoedler soured. Respondent had applied for the permanent athletic director position, but Knoedler solicited an application from Donald Boyd and selected him for the position. Respondent had been hired as the girls' basketball coach for the year, but, in January 2007, with the assistance of his teachers' union consultant, James Sundell, he negotiated a resignation from that position.
In mid-January 2007, Knoedler put respondent on a program of assistance for improvement to address what she perceived as his weaknesses as a teacher. The district hired an outside consultant to work with respondent in the classroom. The consultant found respondent receptive to new ideas and eager to work with her.
Respondent discussed his and Knoedler's working relationship with Sundell. They determined that it would be best for respondent to seek work elsewhere rather than try to salvage the soured relationship with Knoedler. With Sundell's assistance, respondent negotiated a resignation agreement effective at the end of the school year. Around the same time, in January or February 2007, the superintendent, Jones, resigned.
After he negotiated his resignation agreement with Central Linn, respondent applied for other teaching jobs for the 2007-2008 school year. In April 2007, he filled out an application through a website called EdZapp, which is used by many school districts to fill open positions. The application included questions about whether respondent had ever left education-related employment while the subject of investigation, whether he was currently the subject of investigation, and whether he had ever failed to complete an education employment contract. Respondent answered "no" to each of those questions.
In the late spring of 2007, Kim Smith, a parent of one of respondent's students who also worked at the school and whom respondent described as Knoedler's "right-hand man" complained, in writing, to Knoedler about respondent's teaching processes and classroom environment. Knoedler then asked respondent for copies of his lesson plans and grade book, both by e-mail and in person, but respondent did not provide them. Knoedler placed respondent on unpaid leave with five days remaining in the school year. In a letter informing him that he had been placed on leave, Knoedler stated that "the superintendent will be reporting, per his legal obligation, your suspected gross neglect of duty to the [TSPC]."
After being placed on leave, respondent, with Sundell's help, filed a grievance against the district, alleging that Knoedler had violated the collective bargaining agreement in numerous ways. On July 24, 2007, the new superintendent agreed to hear the grievance, and, on August 23, 2007, respondent and the district entered into an agreement under which respondent would drop his grievance and the district would pay respondent for the remainder of the school year.
One of the districts that received respondent's EdZapp application was the North Santiam school district. Terry Butler, the human resources director for that district, interviewed respondent. After the interview, Butler asked respondent to fill out a preemployment background form, which included three relevant background questions:
"[(1)] Have you ever left any educational or school-related employment, voluntarily or involuntarily, while the subject of an inquiry, review or investigation of alleged misconduct or alleged violation of professional standards of conduct, or when you had reason to believe such investigation was imminent?
"[(2)] Are you currently the subject of an inquiry, review or investigation for alleged misconduct or alleged violation of professional standards of conduct?
"[(3)] Have you ever failed to complete a contract for educational services in any educational or school-related position, or for any alleged misconduct or alleged violation of professional standards of conduct been placed on leave by your employer or left such employment prior to the end of the contract term?"
After consulting Sundell about how he should answer, respondent answered "no" to the first and third questions and "yes" to the second question.
In accordance with the form's instructions, respondent also submitted a letter explaining his "yes" answer to the second question. At the start of the letter, respondent explained that he was providing the "Cliff Notes version" of his employment history with Central Linn and stated, "I can go into greater detail if you have any additional questions or concerns." After summarizing his duties throughout the year, noting his disagreement with Knoedler, and explaining that he and Knoedler both did not want him to return the next year, he stated:
"Principal made unfounded allegations with four days remaining in the school year that I had neglected some of my teaching duties.
"Disagreement appears to be headed to arbitration. James Sundell * * * filed a grievance on my behalf against principal. Mr. Sundell believes that the principal has violated at least seven articles of the Central Linn School District contract."
At the end of the letter, respondent stated, "I also want to encourage anybody who has concerns to also contact James Sundell * * *."
Respondent faxed the form and his letter to Butler on July 29, 2007. Butler met with respondent to discuss his "yes" answer and his letter. She did not contact anyone at Central Linn. The North Santiam district hired respondent for the 2007-2008 school year.
On September 4, 2007, the first day of school in the Central Linn district, respondent went to Central Linn. He dropped off gifts for four former students. Then he put a "graded" copy of Smith's complaint letter into her mailbox. Where Smith had misspelled "complaint, " respondent wrote, "Please see [Smith's daughter] for correct spelling!" At the end, respondent gave Smith a B for a seventh grade score, and an F as a University of Oregon School of Journalism grade.
Then respondent asked to speak with Knoedler in her office. He asked her for a reference letter that they both believed that she was obliged to provide. Then he told her his low opinion of her work as principal. He gave her a book entitled The Girl's Guide to Being a Boss (Without Being a Bitch), in which he had bookmarked the chapter "Don't Try This at Work: Ten Ways to ...