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Gordon v. Teacher Stamdards & Practices Comm'n

Court of Appeals of Oregon

October 1, 2014

LAURIE A. GORDON, Petitioner,
v.
TEACHER STANDARDS AND PRACTICES COMMISSION, Respondent

Argued and Submitted: May 15, 2014.

Teacher Standards and Practices Commission. 2011050021.

Elizabeth A. McKanna argued the cause for the petitioner. With her on the briefs was McKanna Bishop Joffe & Arms, LLP.

Denise G. Fjordbeck, Attorney-in-Charge, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Erin C. Lagesen, Assistant Attorney General.

Before Sercombe, Presiding Judge, and Tookey, Judge, and Schuman, Senior Judge.

OPINION

Page 134

[265 Or.App. 723] TOOKEY, J.

This is a proceeding for judicial review of two orders of the Teacher Standards and Practices Commission (TSPC). The first order is a " default order of suspension" suspending petitioner's teaching license for one year after the TSPC determined that petitioner had committed " gross neglect of duty" within the meaning of ORS 342.175(1)(b) by serving in an administrative capacity for almost four years without an administrator license. The order was issued by default because petitioner failed to timely request a hearing in response to a notice charging her with misconduct. The second order on review is an order on reconsideration, rejecting petitioner's request for a late hearing and for reconsideration of the default order.

We first address petitioner's challenges related to the default order. As the state correctly points out, petitioner did not appear at a hearing and the matter was decided by default, based on the written record in the agency's possession. We agree with the state that petitioner, having failed to appear, has not exhausted her remedies before the agency, and we therefore conclude that petitioner is precluded from raising her contentions relating to the substance of the default order. See Trujillo v. Pacific Safety Supply, 336 Or. 349, 367-71, 84 P.3d 119 (2004) (judicial review of issues precluded when party seeking review failed to exhaust administrative remedies); Mullenaux v. Dept. of Revenue, 293 Or. 536, 541, 651 P.2d 724 (1982) (" Exhaustion of administrative remedies is not accomplished through the expedience of default." ).

However, for the reasons explained herein, we conclude that the second order is inadequate for judicial review as to the rejection of petitioner's late request for hearing, because it is not possible for us to determine from the second order whether the TSPC erred in rejecting petitioner's late request without first holding a hearing. We therefore vacate and remand the order for reconsideration on that ground.

We summarize the undisputed underlying facts. Petitioner was first licensed to teach in Oregon in 1979 and, with the exception of a one-year leave of absence, she has taught continuously since that time. In 2004, petitioner successfully completed a program at Lewis and Clark College to [265 Or.App. 724] obtain her administrator license. In 2007, she applied for an administrative position with the Clackamas Educational Service District (ESD), and completed and submitted to Lewis and Clark College the materials necessary to obtain her administrator license. At that time, she assumed, incorrectly, that the college would process her application and submit the necessary documentation to the TSPC.

In the summer of 2007, petitioner was hired by the ESD for an administrative position as principal of two schools serving students in residential psychiatric treatment. At that time, petitioner had not yet received a written copy of her administrator license, and she asked a staff person in the ESD human resources department if she should bring it in. The staff person told petitioner that the ESD would obtain her license from the TSPC website. Petitioner did not hear further from the ESD or the TSPC regarding her license, but she took no further action to confirm whether it had in fact been approved.

In fact, the administrator license had not been approved.[1] In 2011, petitioner went to the TSPC website to check into requirements to renew her administrator license and noticed that the website showed only her teaching license. She notified her supervisor. Shortly thereafter, in May 2011, the ESD determined that petitioner did not hold an administrator license and immediately suspended her from her position without pay.

With the assistance of the ESD, petitioner obtained a temporary administrator license for the period of May 24, 2011, through June 30, 2011. On the advice of the ESD, petitioner then resigned from her administrative position effective June 30 and was unemployed during the ...


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