and Submitted November 7, 2016
Teacher Standards and Practices Commission 1403653;
A. Masih argued the cause and fled the briefs for petitioner.
Peenesh Shah, Assistant Attorney General, argued the cause
for respondent. With him on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman, Solicitor
Ortega, Presiding Judge, and Egan, Chief Judge, and Lagesen,
Summary: Petitioner seeks judicial review of a final order of
the Teacher Standards and Practices Commission (TSPC) that
revoked her right to apply for a teaching license after
finding that petitioner had engaged in conduct demonstrating
"gross neglect of duty" and "gross
unfitness." Petitioner argues that TSPC applied the
wrong standard of proof for the revocation proceeding,
imposed a sanction inconsistent with its prior practice
without any explanation for the departure, and failed to
support its factual findings regarding her misconduct with
substantial evidence and to connect those findings to its
conclusions with substantial reason. She further argues that
TSPC modified the proposed order of the administrative law
judge (ALJ) without identifying or explaining its
modifications, and inserted findings related to the sanction
that are not supported by substantial evidence or connected
to the conclusions by substantial reason.
TSPC did not err in applying a preponderance standard of
proof; due process does not require TSPC to apply a clear and
convincing evidence standard of proof in license revocation
proceedings, regardless of allegations of fraud or
misrepresentation. TSPC also did not err with regard to its
findings and conclusions concerning petitioner's
misconduct. However, TSPC's additions to the ALJ's
proposed order, viewed collectively, changed the basis for
the proposed order by supplying reasoning that was not
present in that proposed order. TSPC erred in [291 Or.App.
380] failing to identify and adequately explain its
modifications, and the order must be remanded for the agency
to correct that error. Moreover, the order, even as modified,
lacked a sufficient articulation of why the sanction of
revocation was warranted in this circumstance; assuming that
TSPC adheres on reconsideration to the sanction of revocation
when it explains its modifications of the ALJ's proposed
order, it also must provide additional explanation of that
sanction to facilitate meaningful judicial review of
TSPC's exercise of discretion.
Or.App. 381] LAGESEN, J.
seeks judicial review of a final order of the Teacher
Standards and Practices Commission (TSPC) that revoked her
right to apply for a teaching license after finding that
petitioner had engaged in conduct demonstrating "gross
neglect of duty" and "gross unfitness."
Petitioner argues that TSPC applied the wrong standard of
proof for the revocation proceeding, imposed a sanction
inconsistent with its prior practice without any explanation
for the departure, and failed to support its factual findings
regarding her misconduct with substantial evidence and to
connect those findings to its conclusions with substantial
reason. She further argues that TSPC modified the proposed
order of the administrative law judge (ALJ) without
identifying or explaining its modifications, and inserted
findings related to the sanction that are not supported by
substantial evidence or connected to the conclusions by
substantial reason. As explained below, we reject
petitioner's assignments of error regarding the standard
of proof and her challenge to TSPC's findings and
conclusions regarding her misconduct; however, because we
agree with petitioner that TSPC modified the ALJ's
proposed order with respect to the sanction without providing
the necessary identification and explanation of those changes
and because even as modified the order lacks substantial
reason to support revocation, we reverse and remand the
FACTS AND PROCEDURAL BACKGROUND
the relevant historical facts from TSPC's final order and
the undisputed evidence in the record. Multnomah County
Sheriffs Office v. Edwards, 361 Or. 761, 776, 399 P.3d
969 (2017) (an agency's unchallenged findings are binding
for the purposes of judicial review). Although the order on review
includes extensive factual findings, an abbreviated
discussion of those facts suffices to frame the issues
discussed in this opinion.
Or.App. 382] For the 2009-10 school year, petitioner was
employed by the Eugene 4J School District as a special
education teacher at Monroe Middle School, where she was
assigned to teach sixth- and seventh-grade Language Arts and
Social Studies, as well as a Language Arts support class. The
incidents for which petitioner was ultimately sanctioned by
TSPC arose from that school year and can be grouped into
three categories: conduct related to the development of
individualized education programs (IEPs) for students with
disabilities; conduct involving a collection of student
essays; and conduct related to annual performance testing.
Conduct related to IEPs
special education teacher, petitioner was part of the team
that developed an IEP for each child with a disability.
See OAR 581-015-2200 (setting forth content of an
IEP); OAR 581-015-2210 (describing makeup of an IEP team).
School districts are required by state and federal law to
have students' IEPs in place at the beginning of the
school year and must update them at least once a year, or
more frequently if requested. See generally 34 CFR
300.24; OAR 581-015-2225. As part of the process of
developing and reviewing an IEP, a school district schedules
a meeting with the parents of the child, who are also part of
the IEP team. The school district must schedule the meeting
at a time mutually agreed upon with the parents and send
written notice sufficiently in advance of the IEP meeting.
OAR 581-015-2210; OAR 581-015-2190.
2009-10 school year, petitioner was responsible for
developing the annual IEPs for students KR and FC-E. With
regard to KR, petitioner never held the review, falsely
recorded that she had, misrepresented that KR's mother
and another teacher had been present for the meeting, and
then failed to finalize the IEP document or distribute copies
to KR's parent or KR's service providers. Later, when
confronted with evidence that she had not held the IEP
meeting for KR, petitioner misrepresented the facts to the
school administration and to TSPC.
in the case of FC-E, petitioner failed to hold the required
meeting, did not enter any IEP information into the
Electronic Student Information System, did [291 Or.App. 383]
not prepare or finalize an IEP for FC-E for the 2009-10
school year, and later misrepresented to school officials and
a TSPC investigator that she had conducted an IEP meeting by
phone for FC-E. As a result of petitioner's failures to
follow the required IEP procedures, the school district
reported FC-E as "out of compliance" on its annual
Oregon Department of Education census report, and the
district was unable to receive funding for services that were
delivered to FC-E during the 2009-10 school year.
Conduct involving student essays
the 2009-10 school year, petitioner assigned a writing
exercise to her seventh-grade class that involved writing
memoirs or short stories based on prompts from a book. At the
end of the school year, petitioner included a collection of
those writings in a book that was sent home with all of the
seventh-grade students. The students had chosen which of
their writings were to be included, and they were aware that
their writings would be shared with others. However,
petitioner had not communicated with the students'
parents about her plans to publish the writings or obtained
their permission, nor had she received permission from school
writings that went home with students included, among other
things, a student's description of a time when his foster
parents caught him and other children sneaking candy, made
them eat the candy until one of them vomited, and then
directed that child to eat the vomit; another student's
writing that "I was always scared of my dad when he had
parties. He would get drunk and take it out on my
[sic]. * * * He would hit my Butt with a
belt."; and students' revelations about their
"regrets" (such as punching one's sister) or
being in love with other named students.
collection of writings came to the school district's
attention after a parent raised concerns about the sensitive
and personal information they contained. Petitioner was a
mandatory reporter of abuse under state law, see ORS
419B.010, and school administrators asked her if she had
contacted law enforcement or the Department of Human Services
(DHS) about any of the information in the writings.
Petitioner confirmed that she had not notified [291 Or.App.
384] law enforcement, the local DHS office, or the
administration about any of the students' disclosures.
Conduct involving standardized testing
beginning of the 2009-10 school year, petitioner and other
MMS staff were informed of the school's expectation that
students failing to meet benchmarks or performance standards
on the Oregon Assessment of Knowledge and Skills (OAKS) test
would be retested. In the spring of 2010, petitioner
administered a first round of OAKS testing to her sixth- and
seventh-grade classes, and nearly all of petitioners'
students failed to meet the benchmark or performance standard
on the test.
school's OAKS testing coordinator worked with petitioner
to schedule the second round of testing and sent petitioner a
reminder of the schedule, but petitioner did not retest her
students by the end of the school year. Consequently, those
students did not have the opportunity to improve their
scores, to meet the standards, or to exceed them and become
eligible for additional opportunities in school; the failure
to retest the students also contributed to MMS's failure
to make "Adequate Yearly Progress"-a measurement of
annual achievement growth under federal law-for the 2009-10
TSPC Proceedings ...