Lockett v. Teacher Standards and Practices Commission

          Argued and submitted November 8, 2016

         Teacher Standards and Practices Commission 1403874

          Blair Henningsgaard argued the cause and fled the briefs for petitioner.

          Keith L. Kutler, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Michael S. Shin, Assistant Attorney General.

          Before DeHoog, Presiding Judge, and Egan, Judge, and Aoyagi, Judge. ^[*]

         Case Summary: Respondent, who was the principal of Astoria High School from 2000 until he retired in 2012, seeks judicial review of a final order of the Teacher Standards and Practices Commission (TSPC) revoking his teaching and administrator licenses. Among other things, respondent challenges TSPC's conclusion that he committed gross neglect of duty under ORS 342.175(1)(b), based on a violation of OAR 584-020-0040(4)(n), for failing to investigate allegations of an inappropriate relationship between a teacher and a student at the high school in 2004. Held: Because the order did not demonstrate why TSPC's determination in that regard reasonably followed from the facts that it found, it lacked substantial evidence and reason.

         [289 Or.App. 594] DEHOOG, P. J.

         Respondent, a long time Oregon educator, seeks judicial review of a final order revoking his teaching and administrator licenses.^[1] The Teacher Standards and Practices Commission (TSPC) revoked those licenses in 2015, several years after respondent retired as principal of Astoria High School. TSPC concluded that respondent had committed gross neglect of duty 11 years earlier, in 2004, for failing to investigate allegations of an inappropriate relationship between a teacher and a student at the high school. Respondent raises three assignments of error. We write to address only the second assignment, in which respondent challenges TSPC's determination that respondent committed gross neglect of duty under ORS 342.175(1)(b), based on a violation of OAR 584-020-0040(4)(n).^[2] As explained below, we conclude that TSPC's order lacks substantial evidence and reason; accordingly, we reverse and remand. We reject respondent's other assignments of error without discussion.

         We take the facts from the administrative law judge's (ALJ) proposed order, which TSPC affirmed without modification, and from uncontroverted evidence in the record. Talbott v. Teacher Standards and Practices Coram., 260 Or.App. 355, 358, 317 P.3d 347 (2013). To place those facts in context, however, we first set out the applicable regulatory framework.

         ORS 342.175(1)(b) authorizes TSPC to suspend or revoke the license of a teacher or administrator based on "[g]ross neglect of duty." OAR 584-020-0040(4)(n), in turn, provides that "[g]ross neglect of duty" means "any serious and material inattention to or breach of professional responsibilities, " including, "[s]ubstantial deviation from professional standards of competency set forth in OAR 584-020-0010 through 584-020-0030." Two of those professional standards of competency are at issue here. The first, OAR 584-020-0010(5) provides that "[t]he educator demonstrates a commitment to *** [u]se professional judgment." The [289 Or.App. 595] second, OAR 584-020-0025(3)(a), provides that "[t]he competent administrator demonstrates *** [leadership skills in managing the school, its students, staff, and programs as required by lawful and reasonable district policies, rules, and regulations, state and federal laws and regulations, and other programs as assigned, and assures that staff is informed of these requirements."^[3]

         Returning to the facts of this case, respondent has been licensed in Oregon as an educator since 1974 and as an administrator since 2000. In September 2000, he became the principal of Astoria High School, and he continued in that position until he retired in 2012. As principal, his performance evaluations were "overwhelmingly positive" and he was "very highly regarded" as an administrator.

         In approximately August 2013, H, a former student of Astoria High School, told a counselor that, in 2004, when she was a 17-year-old student, she had had a sexual relationship with M, a science teacher and coach at the school. The counselor reported that allegation to the police, who conducted an investigation and sent a report of the investigation to Hoppes, who was then the district superintendent.^[4]Hoppes, in turn, sent a letter to TSPC, in which he reported "a possible violation involving a licensed administrator." The letter stated that Hoppes had received information from the police that a teacher had allegedly had an inappropriate sexual relationship with a student in 2004 and that the administrator (respondent) had been aware-at the time- that the student had moved in with the teacher while the teacher's wife and children were out of the country. Hoppes also stated that the district "does not have any documentation showing [that respondent] attempted to communicate with the student's parents or Children Services regarding [289 Or.App. 596] the living arrangements." Subsequently, Hoppes spoke to two instructional assistants at the school-Belleque and MacDonald-who each stated that they had, in the spring of 2004, expressed their concerns about the relationship between M and H to respondent.

         TSPC also conducted an investigation and, in April 2014, charged respondent with gross neglect of duty, ORS 342.175(1)(b), in violation of OAR 584-020-0040(4)(n), specifically as that rule incorporates OAR 584-020-0010(5) and OAR 584-020-0025(3)(a).^[5] In short, respondent was charged with substantially deviating from professional standards of competency in his (1) use of professional judgment and (2) demonstration of leadership skills in managing the school as required by district policies and state and federal law.

         The notice alleged that the charges were based on the following "conduct": that TSPC had received a report about a police investigation into an alleged inappropriate sexual relationship that took place in 2004 between M and H; that in the spring of 2004, school employees Belleque and MacDonald had reported to respondent concerns about inappropriate behavior on the part of M-specifically, that they had witnessed M alone with H in his classroom during lunch and tutorial times with the lights off and the door locked; that, "[a]ccording to School District records, there is no evidence that [respondent] addressed these complaints in any manner with [M] or other authorities"; that H had reported to authorities that she had engaged in sexual conduct with M in his classroom in 2004; that M and H had met with respondent prior to H moving into M's house, purportedly to help care for M while he recovered from ...