Dorn v. Teacher Standards and Practices Comm. ( 2021 )

241
Argued and submitted October 8, 2020, affirmed December 8, 2021
Devon L. DORN,
Petitioner,
v.
TEACHER STANDARDS
AND PRACTICES COMMISSION,
Respondent.
Teacher Standards and Practices Commission
2016ABC00006; A168583
504 P3d 44
Licensee petitions for judicial review of a final order of the Teacher Standards
and Practices Commission (TSPC) that revoked her teaching license. On review,
licensee raises six assignments of error that essentially challenge (1) the TSPC’s
finding that licensee falsified records to support the existence of an individual-
ized education plan (IEP) meeting that did not occur, and (2) the TSPC’s choice of
license revocation as the sanction. Licensee’s first, second, third, and sixth assign-
ments challenge the sanction. The fourth assignment challenges the finding that
licensee falsified records, and the fifth assignment challenges the TSPC’s failure
to make findings about the “frequency of simple errors in special education” in
the district and “the practice of remediation through the state Department of
Education and the state evaluation statute as testified to by” licensee’s expert
witness. Held: Licensee conceded, and the Court of Appeals agreed, that the
first assignment of error was moot. In addition, the other assignments that chal-
lenged the sanction provided no basis for reversal because the TSPC’s order was
supported by substantial evidence and reason. As to licensee’s fourth assign-
ment, the TSPC did not err in finding that licensee falsified IEP meeting records,
because that finding was supported by substantial evidence. Lastly, as to her
fifth assignment, the question of how “simple errors” were addressed was irrel-
evant because licensee’s errors went beyond “simple mistakes”; therefore, the
TSPC was not required to make findings specific to the testimony of licensee’s
expert on that topic.
Affirmed.
Barbara J. Diamond argued the cause for petitioner. Also
on the briefs was Diamond Law.
Jona J. Maukonen, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
242 Dorn v. Teacher Standards and Practices Comm.
MOONEY, J.
Affirmed.
Cite as 316 Or App 241 (2021) 243
MOONEY, J.
Licensee petitions for judicial review of a final order
of the Teacher Standards and Practices Commission (TSPC)
that revoked her teaching license. On review, licensee raises
six assignments of error that essentially challenge (1) the
TSPC’s finding that licensee falsified records to support the
existence of a meeting that did not occur, and (2) the TSPC’s
choice of revocation as the sanction. Licensee’s first, second,
third, and sixth assignments challenge the sanction. The
fourth assignment challenges the finding that licensee falsi-
fied records, and the fifth assignment challenges the TSPC’s
failure to make certain findings. Licensee concedes, and we
agree, that the first assignment is moot. We address the
remaining assignments below. We conclude that the TSPC’s
order, including its choice of sanction, is supported by sub-
stantial evidence and reason. We affirm.
We review an agency’s order in a contested case for
errors of law, ORS 183.482(8)(a), substantial evidence, ORS
183.482(8)(c), and substantial reason, Sachdev v. Oregon
Medical Board, 312 Or App 392, 405, 494 P3d 1018 (2021).
Our review is restricted to the record. ORS 183.482(7). A
finding is supported by substantial evidence so long as “the
record, viewed as a whole, would permit a reasonable person
to make that finding.” ORS 183.482(8)(c). Substantial rea-
son exists where the agency has articulated a “rational con-
nection between the facts and the legal conclusion” that the
agency draws from them. Sachdev, 312 Or App at 406. We
review the TSPC’s application of ORS 342.175,1 the govern-
ing statute, for substantial evidence and reason. Id. at 405.
We draw the relevant historical and procedural facts
from the TSPC’s final order and the undisputed evidence
1
ORS 342.175 provides, in pertinent part, that:
“(1) The Teacher Standards and Practices Commission may suspend or
revoke the license or registration of a teacher or administrator, discipline
a teacher or administrator, or suspend or revoke the right of any person to
apply for a license or registration, if the licensee, registrant or applicant has
held a license or registration at any time within five years prior to issuance
of the notice of charges under ORS 339.390 or 342.176 based on the following:
“* * * * *
“(b) Gross neglect of duty;
“(c) Any gross unfitness[.]”
244 Dorn v. Teacher Standards and Practices Comm.
in the record. Licensee taught special education classes at
North Valley High School in Grants Pass from 2003 to 2013.
During the 2011-12 school year, licensee experienced sig-
nificant medical problems, underwent surgery, and devel-
oped substance and alcohol dependence issues. During the
following school year, she fell behind in her individualized
educational plan (IEP) paperwork and did not timely com-
plete IEP files for 28 of her 30 students. Questions arose
about whether licensee had followed policy in conducting
IEP meetings and whether she had falsified documents to
create evidence of an IEP meeting that had not occurred.
Licensee sent emails to other teachers requesting modifica-
tion of student grades indicating that those students were
on modified diploma tracks when they were not. Licensee
was initially placed on an action plan and shortly after
that she was arrested for DUII relative to a motor vehicle
accident in which she “sideswiped” a vehicle with several
high school students in it. Licensee was terminated from
her position at North Valley High School and, as staff
searched her desk area for her keys, they located a soda
bottle with alcohol in it. Licensee acknowledged that the
bottle of alcohol was hers. The TSPC charged her with
“gross neglect of duty” and “gross unfitness,” in violation of
ORS 342.175(1)(b) and (c).
A four-day contested case hearing was conducted
before an administrative law judge (ALJ). The questions of
whether licensee had misrepresented that she held an IEP
meeting for a particular student on November 27, 2012, and
whether she had falsified IEP documents to create evidence
that the meeting had actually occurred, was the subject of
much testimony and argument. The ALJ found that licens-
ee’s testimony about the November 27 IEP meeting was not
credible. He concluded that licensee committed gross neglect
of duty, was grossly unfit to be a teacher and that revocation
was “an appropriate sanction.” The ALJ proposed that the
TSPC issue an order concluding that licensee
“committed gross neglect of duty and demonstrated gross
unfitness. Her license should be revoked, with revoca-
tion stayed; she should serve a 90 day suspension; she
should abstain from all alcohol or non-prescribed con-
trolled substances, and she should be required to provide
Cite as 316 Or App 241 (2021) 245
monthly reports on the timeliness of her special education
paperwork.”
The ALJ explained that he was recommending a stay of the
revocation because licensee’s violations occurred during a
period of time that corresponded with her struggle to over-
come alcohol-related issues and, further, that she had com-
pleted alcohol treatment, was engaged in ongoing recovery
work, and had been successfully employed in two subse-
quent teaching positions—one in Medford and one online.
Licensee filed a number of exceptions to the ALJ’s proposed
order and sanction.
The TSPC considered the ALJ’s proposed findings
and conclusions of law along with licensee’s exceptions to
the proposed order. It adopted the ALJ’s findings of fact and
credibility and, like the ALJ, concluded that (1) licensee had
committed “gross neglect of duty” and (2) revocation was an
appropriate sanction. The TSPC, however, did not adopt the
ALJ’s conclusion that licensee was “grossly unfit,” explain-
ing that she had “sought alcohol treatment” and was “sober
as of the time of the contested case hearing.” The TSPC also
declined to adopt the ALJ’s proposal to stay the revocation
and impose probationary-style conditions, explaining that,
“having exercised its discretion to consider the pertinent
factors in OAR 584-020-0045, the Commission determines
that revocation of the license in this case is appropriate for
the following reasons:
• “Conduct involved falsification of special education
records
• “Conduct involved a vulnerable population
• “Conduct risked educational opportunities to students
• “Conduct risked harm to the school district
• “Conduct involving alcohol in school is not tolerable
under any circumstances
• “Licensee has failed to take accountability for
falsifications
“The above reasons, along with the Commission’s dis-
cussion of each violation above, support imposition of license
revocation in this case. The Commission, in its exercise of
246 Dorn v. Teacher Standards and Practices Comm.
discretion, does not believe that a lesser sanction is appro-
priate in this case. Licensee’s conduct created a risk of harm
to all of her students. And it created a risk of harm to those
who rely on student IEPs and the IEP process, including
students and other educators. See OAR 584-020-0045(4)
(risk to students, other educators, or the public). Further,
Licensee was willing—at the time of the falsifications and
afterwards—to cover-up shortcomings in her professional
performance, rather than addressing issues that arose. See
OAR 584-020-0045(2) (‘likelihood of a recurrence of the
misconduct or violation’) and (4) (‘educator’s state of mind
at the time of the misconduct and afterward’) (emphasis
added).
“Licensee’s failure to take accountability for the falsi-
fications is particularly significant to the Commission in
choosing to impose revocation. The Commission shares the
ALJ’s concern with petitioner’s continued ‘lack of credi-
bility’ regarding the November 27, 2012 IEP. ALJ Barber
found Licensee’s testimony about the November 27, 2012
IEP meeting lacked credibility for a number of reasons. In
particular, as ALJ Barber found, Licensee continued in her
testimony to maintain that the IEP meeting had occurred
and, in fact, her ‘claimed certainty about the November 27,
2012 IEP meeting grew even more specific at the time of
her testimony in May 2017.’
“The Commission finds Licensee’s testimony on her
treatment and work performance does not compel a sanc-
tion less than revocation. Licensee testified after she had
completed her inpatient treatment.”
This petition for review followed.
We begin with the fourth assignment of error
because it relates to the TSPC’s factual findings and con-
clusions concerning the specification of gross neglect of
duty alleging that licensee falsified IEP records. Licensee
contends that the TSPC’s finding that she “fabricated the
record of an IEP meeting” is not supported by substantial
evidence and reason. We disagree.
The TSPC adopted the ALJ’s findings of fact and
credibility determinations. The TSPC thus concluded that
licensee’s testimony about the November 27, 2012, IEP
meeting was not credible, that “the meeting did not actu-
ally occur,” and that licensee contrived the supporting
Cite as 316 Or App 241 (2021) 247
paperwork. In its final order, the TSPC explained how it
reached that conclusion by walking through licensee’s tes-
timony and earlier statements and noting that her memory
grew more specific with the passage of time. Reasoning that
memories tend to fade rather than sharpen with the pas-
sage of time, the TSPC discounted licensee’s testimony that
the meeting occurred. In finding that the meeting did not
occur, the final order describes how other evidence—the lack
of “contemporaneous paperwork,” such as calendar entries,
phone logs and the hand-written notice; the absence of sig-
natures on the IEP paperwork submitted before December
of 2012; the parent’s testimony that he did not receive
notice of the November 27 meeting; and the testimony of
one of the teachers who said that the meeting did not occur
and the other teacher who did not recall such a meeting—
considered in conjunction with licensee’s testimony led to
that conclusion. That explanation supports that conclusion
on this record.
As we have explained,
“our review function under ORS 183.450 ‘is not to sub-
stitute a court’s findings of fact for an ALJ’s [or agency’s]
findings of fact, when there is substantial evidence in the
record for [a] finding. This is true even when there is also
substantial evidence to the contrary.’ Gaylord v. DMV, 283
Or App 811, 822, 391 P3d 900 (2017). That is, ‘[w]hen in a
review role, a court does not review for the better evidence.
* * * Review for substantial evidence is review to determine
whether a reasonable person could have made the findings
supporting the decision, not whether a reasonable person
could have made different findings.’ Id. (internal quotation
marks omitted; emphasis added).”
Robin v. Teacher Standards & Practices Comm., 291 Or
App 379, 394, 421 P3d 385 (2018) (omission and brackets
in original). We conclude that “a reasonable person could
have found” that licensee falsified the IEP meeting records
despite her testimony to the contrary and despite the signa-
tures on the IEP paperwork sent to the parents in March of
2013. Id.We next turn to licensee’s fifth assignment, in which
she asserts that the TSPC erred “when it failed to make
findings about the frequency of simple errors in special
248 Dorn v. Teacher Standards and Practices Comm.
education, in [the district], and the practice of remediation
through the state Department of Education and the state
evaluation statute as testified to by” licensee’s expert wit-
ness.2 We disagree.
An agency’s final order must include “a concise
statement of the underlying facts supporting the findings
as to each contested issue of fact and as to each ultimate
fact required to support the agency’s order.” ORS 183.470(2).
Conversely, an agency need not make specific findings
as to nonprobative facts. See Automotive Technology v.
Employment Division, 97 Or App 320, 324, 775 P2d 916,
rev den, 308 Or 592 (1989). Here, licensee’s argument is
directed to the issue of whether her IEP paperwork defi-
ciencies constituted serious and substantial violations of the
TSPC’s rules. The TSPC adopted the ALJ’s findings about
the Special Education Director’s investigation into licensee’s
IEP and eligibility paperwork, including a comparison of
licensee’s files “with more than 80 files in the district” and
the director’s conclusion that “only [l]icensee was routinely
untimely in her IEP paperwork,” with most of her files being
incomplete. Licensee’s errors went beyond “simple mistakes”
because she was not in substantial compliance with the
requirements of her position. The question of how “simple
errors” are addressed is, therefore, not relevant, and find-
ings specific to the testimony of licensee’s expert on that
topic were not required.
We next turn to licensee’s second assignment, in
which she contends that the TSPC failed to adequately
explain “how its choice of sanction squares with its other
decisions,” and to her third assignment, in which licensee
contends that the TSPC abused its discretion when it chose
the sanction of revocation, “because that sanction is far more
severe than sanctions issued in similar or more severe cases
of gross neglect of duty.” In licensee’s combined arguments
regarding those assignments, she argues that the choice of
sanction is inconsistent with prior decisions of the TSPC
2
As part of the fifth assignment, licensee also argues that the TSPC erro-
neously construed gross neglect of duty in such a way that any “late paperwork,
standing alone,” would constitute per se gross neglect of duty. We do not agree
that the TSPC construed gross neglect of duty in that way, and we reject that
argument without further discussion.
Cite as 316 Or App 241 (2021) 249
and that the TSPC failed to make an adequate record for
review, requiring reversal and remand to allow the TSPC to
explain its choice of sanction and to eliminate implicit bias.3
We disagree that the TSPC’s choice of sanction is
“inconsistent” with prior TSPC decisions. We also do not
agree that the TSPC needed to do more to explain any per-
ceived inconsistency with prior agency decisions. Licensee
points to several TSPC cases to argue, by comparison, that
the sanction imposed on her license is excessive. While
TSPC did not address specific comparator cases in its final
order, it did explain that “[t]he circumstances in this case
are sufficiently different from the prior Commission orders
on which [l]icensee relies,” and it then described the circum-
stances of this case in detail.
The eleven cases cited by licensee all resulted in
sanctions less severe than revocation. The conduct involved
in those cases included various combinations of violating
IEP protocols, falsifying records, inappropriate physical
or verbal contact with students, and alcohol-related issues.
Licensee essentially argues that the conduct in those cases,
when compared to her conduct, ranges from similar to more
severe. And, given that none of those cases resulted in
license revocation, she argues that the TSPC should explain
why it decided that revocation was appropriate in her case.
We are not persuaded, however, that it was necessary, on
this record, for the TSPC to distinguish or otherwise explain
each specific case cited by licensee in order to adequately
explain its decision to revoke licensee’s teaching license.
Fact-matching between similar cases is inexact. As
in many other types of cases, the application of professional
standards in licensing cases requires careful attention to
the subtleties of each case. See State v. Sierra, 349 Or 506,
515 n 5, 254 P3d 149 (2010), adh’d to as modified on recons,
3
Licensee has not sufficiently developed her argument or the record concern-
ing implicit bias, and therefore, we decline to address it. Cf. State v. Thompson,
328 Or 248, 254 n 3, 971 P2d 879, cert den, 527 US 1042 (1999) (explaining that
the court would not address constitutional claims in the absence of “thorough and
focused constitutional analysis”). If implicit biases in the agency or trial court are
suspected in that setting and a party perceives that those biases have unfairly
affected the outcome, a record must be made in that forum that is adequate for
judicial review or appeal before we may address them.
250 Dorn v. Teacher Standards and Practices Comm.
349 Or 604, 247 P3d 759 (2011) (“Factmatching can be a mis-
leading enterprise.”); Gardner and Gardner, 212 Or App 148,
156, 157 P3d 320 (2007) (acknowledging that fact-matching
is “especially treacherous” in marital dissolution actions);
State v. Roberts, 183 Or App 520, 524, 52 P3d 1123 (2002)
(recognizing that “fact-matching is not helpful” in the civil
commitment context).
Eight of the cases cited by licensee—nearly three
quarters of them—were concluded by stipulated order. The
remainder were concluded by default order. Here, there was
neither a default nor a stipulation. Instead, the order revok-
ing licensee’s license was entered after a full contested case
proceeding in which the facts were determined following the
receipt of exhibits and presentation of testimony. That alone
distinguishes this case from each of licensee’s proposed com-
parator cases.
Public reprimands, suspensions, and probation
imposed by stipulated order are sanctions necessarily
entered into by mutual agreement of the TSPC and the
licensee. Stipulated orders generally reflect terms agreed
to through negotiations and compromise. Default orders are
entered solely on the basis of notice and the passage of time,
although even default orders may be entered with a licens-
ee’s knowing acquiescence. Stipulated orders and default
orders are alike in that they generally issue without the
insight that evidence and testimony provide in cases where,
as here, a full hearing is conducted.
Here, the TSPC adopted the ALJ’s credibility
findings and findings of fact. And, importantly, the TSPC
agreed with the ALJ’s conclusion that revocation is the
appropriate sanction. To be sure, the TSPC declined to stay
the revocation as proposed by the ALJ, but there is no dis-
agreement between the ALJ and the TSPC that revocation
is an appropriate sanction under the circumstances of this
case. The ALJ proposed that the sanction be stayed, based
upon licensee’s sobriety at the time of the hearing, to allow
her an opportunity to regain her license through continued
sobriety—not unlike the opportunity that a suspended
sentence or diversion agreement would offer in a criminal
setting.
Cite as 316 Or App 241 (2021) 251
The TSPC explained its view that such an oppor-
tunity was not warranted, because even after licensee had
completed treatment and achieved sobriety, she continued to
falsely assert that the November 27 IEP meeting had taken
place. Licensee argues that she was entitled to testify as she
did and, further, that the record does not support that she
falsified the IEP meeting and associated records. But, as we
have already discussed, that finding is supported by sub-
stantial evidence and reason. Moreover, the TSPC provided
additional insight into its decision not to stay the license
revocation when it discussed licensee’s sobriety in the con-
text of the reasoning behind its conclusion that licensee was
not “grossly unfit.” The TSPC’s explanation of how licensee’s
alcohol-related issues and achievement of sobriety factored
into its decision-making process is adequate.
This is not a case that requires reversal under
Robin. Robin explores the adequacy of agency explanations
under ORS 183.650(2) and OAR 137-003-0665(3) when the
agency modifies an ALJ’s proposed order in “any substantial
manner.” 291 Or App at 396-98. Robin also clarifies that,
even in the absence of modifications to the ALJ’s proposed
order, and even “where the governing statute requires an
exercise of the agency’s discretion—such as the choice of an
appropriate sanction,” such a decision must be supported by
substantial reason. Id. at 398. That is, an explanation of
the rational connection between the facts and the choice of
sanction is required. Id.The agency provided that here. It pointed out, through
the use of footnotes, when its final order departed from the
ALJ’s proposed order, and it explained why it departed in
the body of the order. It explained that licensee’s conduct
warranted revocation due to “the nature of her conduct and
failure to take accountability for it by testifying in a manner
that was not credible.” It provided a detailed explanation of
the nature and severity of the conduct (falsifying records, con-
cerning a vulnerable population—special education students,
placing student opportunities at risk by providing incorrect
information about diploma tracks, keeping alcohol in her desk
at school), and it explained how licensee’s “lack of accountabil-
ity” factored into its decision to impose revocation.
252 Dorn v. Teacher Standards and Practices Comm.
Licensee argues that the TSPC’s reliance on licens-
ee’s “failure to take accountability” and its conclusion that
she is “unlikely in the future to be forthright about any
shortcomings[,] * * * thereby increasing the likelihood of a
recurrence of misconduct,” are “illogical” and not supported
by the record. We agree that revocation would be improper
if based solely on licensee’s decision not to admit the alleged
misconduct and to instead require that the agency establish
those allegations by the requisite evidentiary standards and
burdens. But in explaining its choice of sanction, the TSPC
explained its reliance on the serious nature of licensee’s con-
duct, including falsifying records to create evidence of an
IEP meeting that did not occur. It explained that licensee’s
continued insistence that the meeting occurred in the face
of substantial evidence to the contrary was particularly
concerning to it. It emphasized that licensee gave her not-
credible testimony even after “she had completed her inpa-
tient treatment.” The TSPC’s concern was not that licensee
disputed the charges against her or that she requested a
contested case hearing. Its concern came instead from the
fact that licensee gave false testimony about the charge that
she had falsified IEP records in order to create false evidence
of a meeting that had not occurred. That is very different.
Contesting allegations is different than giving false
testimony about the conduct underlying the allegations.
As already discussed, the TSPC adopted the ALJ’s finding
that licensee’s testimony about the November 27 meeting
and associated paperwork was neither truthful nor reliable.
It was appropriate for the TSPC to consider that licensee
gave untruthful testimony after she achieved sobriety as
it assessed whether licensee has sufficient insight into her
past conduct to effectively reduce the risk that the conduct
will happen again.
Licensee contends that, as in Robin, the TSPC
modified the ALJ’s proposed order “without reconciling its
decision with previous decisions.” She argues that the TSPC
gave the same explanation for revoking her license here as it
did in Robin and that the explanation is as inadequate here
as it was in Robin. But in Robin, the TSPC neither identi-
fied what modifications it made to the ALJ’s proposed order
nor explained why it had made those changes. As we have
Cite as 316 Or App 241 (2021) 253
already discussed, the TSPC identified the modifications it
made to the ALJ’s proposed order through the use of foot-
notes, and it explained why it made those modifications in
the body of the order. Moreover, this is not a case where the
TSPC modified the order by “supplying entirely new reason-
ing” or a “new basis for the order.” Id. at 396-97. The basis of
the ALJ’s proposed order and the TSPC’s order is the same.
The ALJ and the TSPC agree that revocation is an appro-
priate sanction here. The primary difference between the
two orders is that the ALJ proposed staying the revocation
in light of licensee’s recovery work, and the TSPC instead
relied on licensee’s recovery work to find in her favor on the
charge of gross unfitness. We conclude that TSPC’s order
adequately explains why it did so. Robin does not compel a
different result on this record.
Affirmed.