and submitted January 19, 2016
Dismissal Appeals Board FDA1301
A. Dakopolos argued the cause for petitioner. On the briefs
were Rebekah R. Jacobson and Garrett Hemann Robertson P.C.
T. Barish argued the cause for respondent Meier. With him on
the brief were John S. Bishop and McKanna Bishop Joffee, LLP.
G. Fjordbeck waived appearance for respondent Fair Dismissal
Armstrong, Presiding Judge, and Egan, Judge, and Shorr,
Salem-Keizer School District seeks judicial review of an
order of a panel of the Fair Dismissal Appeals Board (FDAB),
contending that the FDAB erred in reversing an order of the
district dismissing respondent from her position as a
full-time contract teacher and counselor at McNary High
School. The facts are not in dispute. In reviewing the
FDAB's order for substantial evidence and errors of law,
see ORS 183.482(8)(a); ORS 342.905(9) (providing for
review of FDAB orders under the Oregon Administrative
Procedures Act), we conclude that the FDAB did not err and
our summary of the facts from the parties' stipulations,
from the undisputed facts stated in the record, and from the
FDAB's findings, which are not challenged on judicial
review. Jefferson County School Dist. No. 509-J v.
FDAB, 311 Or 389, 393 n 7, 812 P.2d 1384 (1991)
(unchallenged findings are the facts for purposes of judicial
review of FDAB's order). Respondent has worked as a
teacher or counselor since 1986, and she has a master's
degree in counseling. She began working for the district as a
counselor in 2005. At the end of the 2008-2009 school year,
respondent's supervisor described her as "an
excellent counselor and a professional educator that really
cares about kids."
school district employee, respondent was a "mandatory
reporter" and had a duty under ORS
419B.010and under district policy to make a report
to the Oregon Department of Human Services (DHS) or to law
enforcement when she had "reasonable cause" to
believe that a child with whom she had come into contact had
suffered abuse within the meaning of ORS
419B.005(1)(a). The district has adopted the identical
requirement in its policies. The district also has a
"Sexual Incident Response Committee protocol, "
which requires district employees to initiate certain steps
upon hearing of a sexual incident. The district's
training materials include a statement that the failure to
report suspected abuse is a violation of policy that could
result in disciplinary action. During her employment with the
district, respondent has attended all required trainings
relating to the mandatory reporting obligation and has
regularly filed reports of suspected abuse.
circumstances of respondent's dismissal arose out of her
decision not to initiate the district's protocol process
or to report to DHS or to law enforcement a report of an
alleged incident of abuse made by a 17-year-old girl who was
an eleventh grader at McNary High School during the 2011-2012
school year. The child has a relatively low IQ and is
enrolled in special education classes. Respondent was the
child's guidance counselor. Although respondent had never
counseled her before, the child was an aide in the
school's counseling office during the 2011-2012 academic
year, and respondent had periodically visited with her.
Respondent testified that the child was not shy toward her
and was always smiling and bubbly.
morning in May 2012, the child arrived at her first period
class in tears and upset. She told the teacher that she and
her mother had had a fight. She would not enter the
classroom, and an instructional assistant escorted the child
to the counseling office. When the child arrived, respondent
came out and brought the child to her office. Respondent
testified that the child smiled when she saw respondent and
that at that time she did not show any sign of being upset
and seemed "fine, mood wise."
office, respondent asked the child what she needed to talk
about, and the child abruptly stated, "A little more
than a year ago my brother molested me." Respondent
observed that the child seemed like she always did and did
not seem upset. She was aware that the child had relatively
low cognitive abilities. To understand what the child meant
by "molested, " respondent asked, "Well, tell
me what that means to you. When you say that, what does it
mean?" The child said that her brother had touched her.
When respondent asked where the child had been touched, the
child gestured with her hand in a circular motion in front of
her upper torso area, making a large circle in the air from
approximately her neck down to her stomach area. The child
did not use words to describe the touching and did not say
that she had been touched on her breasts.
not mentioned by the FDAB in its findings, on
cross-examination at the hearing, respondent acknowledged
that she told an investigating police officer that she had
asked the child whether there had been any
inappropriate touching by her brother and that the
child had responded, "Yeah." Nonetheless,
respondent testified that, based on her conversation with the
child, her familiarity with the child, and her experience and
training, she had concluded that the touching had not been
sexual in nature. At the time of the described conduct, the
child's brother would have been 11 or 12 years old.
Respondent testified that, in describing the conduct, the
child had not seemed distressed in the way one might expect
from someone reporting sexual abuse, which the child said she
had been able to stop. Respondent concluded that the
interaction was a matter of a little brother being a
"little pill" or "kind of a jerk."
Respondent told the child that she intended to contact the
child's mother, and the child did not object. The child
appeared to be fine, and appellant sent her back to class.
end of the school day, respondent related her conversation
with the child to Smith, her immediate supervisor, and
reported her plan to contact the child's mother.
Respondent testified that she made no report to DHS or to law
enforcement "[b]ecause from the conversation I had with
[the child], there was nothing sexual about what was going on
or no abuse of any kind. It seemed more like a younger
brother harassing an older sister." Respondent also did
not initiate the district's Sexual Incident Response
Committee process, because she concluded that the child had
not reported a "sexual" incident to her.
child's parents are divorced, and the child lives with
her mother, regularly visiting her father. In the
school's database, the mother's contact information
came up first. Respondent spoke with the mother by telephone,
explaining that the child had used the word
"molested" to describe her brother's actions a
year before. The mother said that she doubted it had happened
and that she needed to talk with the child. Respondent also
encouraged the mother to talk with the younger brother and
with the child's father. The mother explained that she
and the father did not communicate well, but that she would
talk to him. The next week, the child and her mother followed
up with respondent in a personal meeting at respondent's
October 2012, the child told her father and stepmother that
she had been sexually abused by her brother and that she had
reported the abuse to respondent. At a meeting between the
child's father, respondent, and a district administrator,
the father related the child's report that she "had
been molested, sexually abused, by her brother at her
mother's house, " and expressed anger at not having
been contacted by respondent. He accused respondent of
failing to fulfill her statutory duties and threatened legal
action. Respondent related to the father her conversations
with the child and the child's mother in May 2012, but
denied that the child had reported that she had been sexually
abused. Several days after the meeting, the father filed a
complaint with the school district that resulted in this
district placed respondent on administrative leave and began
an investigation of the father's allegations.
November 2012, district superintendent Husk notified
respondent that she would recommend respondent's
dismissal from the district's employment. The
district's board upheld the superintendent's
recommendation and voted to dismiss respondent on the grounds
of neglect of duty and insubordination, based on
respondent's failure to initiate a report of suspected
sexual abuse of the child to DHS or to law enforcement as
required by ORS 419B.010, or to follow the district's
sexual abuse response protocol.
ORS 342.905, when a district school board dismisses a
teacher, the teacher may appeal the dismissal to the FDAB.
Respondent appealed the district's decision to the FDAB.
At the conclusion of the hearing, the FDAB issued a written
decision pursuant to ORS 342.905(6) and (7).
FDAB noted that the district's factual allegations were
subject to a preponderance of the evidence standard of proof.
OAR 586-030-0055(5). In a lengthy order, the FDAB made the
findings that we have summarized. Those findings, which
include a finding that respondent was a credible witness, are
not challenged on judicial review.
"conclusions of law" section of it order, the FDAB
rejected each of the alleged grounds for
dismissal.Underlying the FDAB's rejection was its
disagreement with the district's assertion that the
child's report to respondent that she had been
"molested, " accompanied by the child's
description of the physical location of the touching,
constituted a report of sexual abuse as a matter of law. The
FDAB concluded that, in considering whether she had been
presented with a report of sexual abuse, respondent could
rely on her familiarity with the child, her conversation with
the child, her years of experience as a counselor, her
training, and the fact that the child had not explicitly
reported sexual touching. The FDAB further determined that, based
on respondent's description of the child's answers
and demeanor during their conversation, respondent could
reasonably conclude that the child was not describing sexual
contact, i.e., that although there was evidence that
the child had been touched, there was no evidence that she
had been touched in an intimate area or ...