I. FACTS AND PROCEDURAL BACKGROUND
A. Historical Facts
We draw the relevant historical facts from TSPC's final order and the undisputed evidence in the record. Multnomah County Sheriff's Office v. Edwards ,
1. Conduct related to IEPs
As a special education teacher, petitioner wаs 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.
For the 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 thаt 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.
Similarly, 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
2. Conduct involving student essays
During 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.
The writings that went home with students included, among оther 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.
The 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. Petitiоner confirmed that she had not notified law
3. Conduct involving standardized testing
At the 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.
The 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 studеnts 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 school year.
B. TSPC Proceedings and Judicial Review
Petitioner's employment with the school district was ultimately terminated based on her conduct related to IEPs, the collection of student essays, and the OAKS testing. She signed a separation agreement with the district on October 8, 2011, and her teaching license expired in 2012.
TSPC subsequently charged petitioner with conduct constituting "gross neglect of duty" and "gross unfitness" based on the same set of events that led to her termination, and it sought to revoke petitioner's right to apply for a teaching license. See ORS 342.175(1) (authorizing TSPC to suspend or revoke the right of any person to apply for a teaching license as a consequence of, among other things, "gross neglect of duty" or "gross unfitness"). After an administrative hearing on the charges, the ALJ issued a proposed order concluding that petitioner had engaged in conduct
Petitioner filed exceptions to the ALJ's proposed order. She argued, among other contentions, that the ALJ had erroneously applied a "preponderance of the evidence" standard of proof rather than the "clear and convincing" standard required for a revocation proceeding involving fraud or misrepresentation, that key factual findings regarding the IEPs, publishing of the essays, and student testing were not supported by substantial evidence, and that "the proposed order fails to indicate what specific evidence constitutes the 'reliable evidence' supporting revocatiоn or distinguishing this case from the others [resulting in lesser sanctions] and does not even attempt to apply the factors [for imposing disciplinary sanctions] in OAR 584-020-0045."
In response to petitioner's opening brief, TSPC withdrew its order and replaced it with an order on reconsideration. The order on reconsideration, unlike the earlier order, modified the ALJ's proposed order. The most significant of those modifications occurred on the final two pages of the order, which elaborated on the bases for the revocation sanction.
Petitioner then filed a supplemental brief that provided additional argument related to her second assignment of error (concerning the sanction) and that asserted two additional assignments of error: a fourth assignment in which she argued that TSPC modified the ALJ's proposed order without identifying or explaining the modifications, and a fifth assignment in which she argued that additional findings in the order on reconsideration were not supported by substantial evidence or connected to the conclusions by substantial reason.
We address petitioner's assignments in a somewhat different order from how they are presented in the briefing. We start with petitioner's assignments concerning the standard of proof, next address the factual findings and conclusions concerning the alleged gross neglect of duty and unfitness, and then finally turn to the assignments of error
II. ANALYSIS
A. Applicable Standard of Proof (First Assignment)
During the hearing, and later in her exceptions to the ALJ's proposed order, petitioner argued that TSPC had the burden of proving
We recently addressed a related but not identical argument in Dixon v. Oregon State Board of Nursing ,
After exploring that inconsistency in our case law, we expressly overruled those cases applying the clear and convincing standard ( Bernard and Van Gordon ) and adhered instead to more recent cases that tie the standard of proof to ORS 183.450, which prescribes a standard synonymous with the preponderance standard. Dixon ,
Our decision in Dixon resolves the subconstitutional questions presented by this case concerning the correct standard of proof. See generally Haynes v. Board of Parole ,
With that said, we turn to petitioner's argument that the Due Process Clause of the Fourteenth Amendment to the United States Constitution does, in fact, require a higher standard of proof in this case. In Mathews v. Eldridge ,
In Mathews , the Court explained that "[d]ue process is flexible and calls for such procedural protections as the particular situation demands," and that "resolution of the issue whether the administrative procedures provided * * * are constitutionally sufficient requires analysis of the governmental and private interests that are affected."
With regard to the first factor, we agree with petitioner that the private interests at stake-her professional license and reputation as a teacher-are significant interests. Without a license, petitioner is unable to teach within Oregon's public school system and, as a practical matter, she will be limited in her ability to teach in private schools as a result of a license revoсation based on misrepresentations and fraud, which has a stigmatizing effect. See Reguero v. Teacher Standards and Practices ,
At the same time, while her interests in a teaching license and her reputation go beyond the mere loss of money, they are not as important or fundamental as those interests for which the Court has required or approved a heightened standard of proof. Cf. Cruzan v. Director, Missouri Department of Health ,
We turn to the second Mathews factor, which examines the risk of erroneous deprivation through the procedures used, and the value of additional or substituted safeguards. "The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to 'instruct the factfinder concerning the degree of confidence our society thinks [that factfinder] should have in the correctness of factual conclusions for a particular type of adjudication.' " Addington ,
"In applying [the second Mathews factor] to * * * the standard of proof, the Court has explained that 'the minimum standard of proof tolerated by the due process requirement reflects not only the weight of the private and public interests affected, but also a societal judgment about how the risk of error shоuld be distributed between the litigants.' " Stogsdill ,
For that reason, our analysis of the third Mathews factor-the relevant governmental interest-informs the second. The State of Oregon has a vital interest in ensuring the welfare and educational opportunities of students within its schools. See generally Campbell et al. v. Aldrich et al. ,
Given the state's strong countervailing interest in the outcome of license revocation proceedings, we are not persuaded that the risk of error in such proceedings should be borne disproportionately by the state and its public school students. See Gallant ,
Under the third Mathews factor, we also consider what, if any, fiscal and administrative burdens the additional or substitute procedural requirements would entail. Stogsdill ,
Considering all three Mathews factors, we hold that due process does not require TSPC to apply a clear and convincing evidence standard of proof in license revocations proceedings, regardless of allegations of fraud or misrepresentation. Petitioner's private interests in her license and
B. Gross Neglect of Duty and Unfitness (Third Assignment)
In her third assignment of error, petitioner argues that "the final order relied purely on hearsay evidence of other witnesses to find [petitioner's] testimony to be unreliable," and "it improperly rejected other evidence favorable to [petitioner] regarding each of the findings depriving it of substantial evidence and reason." Within that assignment of error, petitioner points to evidence that, in her view, undermines the board's factual findings and, consequently, its legal conclusions. However, our review function under ORS 183.450"is not to substitute 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 ,
Having reviewed the record, we conclude that there is evidenсe from which a reasonable person could have found the facts as the ALJ and TSPC did with regard to petitioner's conduct relating to the IEPs, the collection of essays, and the OAKS testing, and we further conclude that the final order on reconsideration sufficiently explains how those facts support TSPC's conclusions that petitioner engaged in conduct constituting gross neglect of duty and gross unfitness. See OAR 584-020-0040(4) (defining "gross neglect of duty" as "any serious and material inattention to or breach of professional responsibilities"); OAR 584-020-0040(5) (defining
C. Imposition and Explanation of Revocation Sanction (Second, Fourth, and Fifth Assignments)
Petitioner's remaining assignments of error concern TSPC's imposition of the license revocation sanction. In her second assignment, petitioner argues that the imposition of revocation, as opposed to a lesser sanction, is inconsistent with the governing rule, OAR 584-020-0045, as well as TSPC's prior position, practice, and orders, and that TSPC's order failed to explain that inconsistency. In its fourth and fifth assignments, she argues that TSPC modified the ALJ's order-essentially with regard to the sanction-without adequately identifying or explaining those modifications, and that TSPC made additional findings and conclusions in support of the sanction that are not supported by substantial evidence and substantial reason.
As noted earlier, TSPC initially adopted the ALJ's proposed order without modification. TSPC then withdrew that order and substituted a final order on reconsideration. The order on reconsideration modified the ALJ's proposed order, but it did not identify or call out those modifications or otherwise explain them. A comparison of the ALJ's proposed order and TSPC's order on reconsideration reflects the following changes, with additions in bold and deletions in strikethrough:
"After reviewing the record in its entirety,I findthe ALJ found that the sanction proposed by the Commission is was appropriate in this matter and is was supported by the reliable evidence in the record. The Commission also finds that the proposed sanction is appropriate. The above findings and conclusions reflect a series of incidents, rather than a single isolated occurrence of misconduct. Moreover, the effect of [petitioner's] misconduct was significant and had negative effects on the public image of the school. The most significant effect of her misconduct was on the education of two special education students, who for one yearreceived education without the individualized planning necessitated by their learning requirements. Another effect was the loss of funding that the District-and by extension, its other students and educators-suffered when it reported student FC-E as 'out of compliance' for the 2009-2010 school year. The public image of the school was also negatively affected: the misconduct related to the IEP meetings was open and notorious at least to the parents who were entitled to participate in those meetings, and the misconduct related to the improperly published student essays was open and notorious to all families in [petitioner's] class. Finally, [petitioner's] actions following her IEP misconduct-and particularly during the Commission's investigation-reveal her mental state to be unwilling or unable to accept responsibility for her actions or understand their significance. Under those circumstances, and nоtwithstanding any extenuating circumstances that might apply to [petitioner's] case, Accordingly [ petitioner] should have her license revoked. "[Petitioner] contends that a suspension of 90 days is more appropriate and cites to various cases set forth in Exhibits R14 through R16 in support of her contention. However, the cases cited by [petitioner] are factually different than the case at issue: none involve the same combination of OAR 584-020-0045 factors as discussed in the previous paragraph. Moreover, as indicated above, I have determined that the proposed sanction is appropriate and supported by the reliable evidence in the record.Consequently, [petitioner's] argument is unpersuasive."
In her fourth assignment of error, petitioner contends that those changes to the proposed order were significant enough to trigger ORS 183.650(2), which provides that, if an agency "modifies the form of order issued by the administrative law judge in any substantial manner , the agency must identify the modifications and provide an explanation to the parties to the hearing as to why the agency made the modifications." (Emphasis added.) TSPC responds that it had no obligation to identify or explain its changes, because its modifications did not change the outcome or basis of the order but merely "summarized" or "explained" its adoption of the ALJ's order. See OAR 137-003-0665(3) (stating that
TSPC significantly understates its obligations under ORS 183.650(2) and the implementing rule, OAR 137-003-0665(3). An agency's responsibility to identify and explain any modifications is not limited to those that change the outcome of the order. Rather, the implementing rule requires an agency to explain modifications that "change the outcome or the basis for the order ." OAR 137-003-0665(3) (emphasis added). In determining whether modifications change the basis for the order, the modifications are viewed individually and also collectively. See Teacher Standards and Practices v. Bergerson ,
In this case, TSPC's additions, viewed together, change the "basis" for the ALJ's proposed order by supplying reasoning that was not present in that proposed order. As described above, the ALJ's order stated that the sanction was "supported by the reliable evidence in the record," and it rejected petitioner's proposed 90-day suspension on the ground that the exhibits cited by petitioner "are factually different than the case at issue." That was the sum of the ALJ's reasoning. In modifying that proposed order-notably, after petitioner sought review and pointed out the lack of explanation in her opening brief in this court-TSPC added multiple sentences and clauses that supplied new reasoning and, at least arguably, inserted additional factual inferences, such as inferences about the effect of petitioner's conduct on the school's "public image." See
Contrary to TSPC's contention on review, it is neither "pointless" nor "technical" to require it to "explain an explanation" in its order. In a contested case proceeding, OAR 137-003-0665(3) entitles a party to an explanation when an agency departs from an ALJ's proposed order by supplying entirely new reasoning-i.e. , a new basis for the order; here, TSPC imposed its most severe sanction, revoking petitioner's ability to apply for a teaching license, and yet it neither
Finally, turning to petitioner's second assignment, we agree with petitioner that, with or without the modifications, TSPC's order lacks substantial reason to support a sanction of revocation. As the Supreme Court has explained, the substantial reason requirement exists " 'both for purposes of meaningful judicial review and to ensure that the agency gives responsible attention to its application of the [governing] statute.' " Jenkins v. Board of Parole ,
In this case, TSPC's explanation of the sanction of revocation fails to meet that standard. Although the modified explanation shows that the agency took into account the factors for imposing disciplinary sanctions set forth in OAR 584-020-0045, it lacks any understandable articulation as to why, in this case, those factors warranted revocation as opposed to a lesser sanction.
The deficiency in TSPC's explanation is particularly apparent when the sanction is compared to other disciplinary decisions in the record, in which TSPC has imposed lesser sanctions for isolated but arguably more еgregious misconduct, such as a 90-day suspension for failing to report a colleague's admission of a sexual relationship with a student, a 30-day suspension for failing to report a student's account that she had been raped by another student, who was later arrested on campus, a public reprimand for failing to timely report that a student was in a sexual relationship with the student's uncle, and a public reprimand for failing to report that the teacher's own son, an adult volunteer coach, was in a relationship with a 16-year-old team manager. The final order states that none of the cases identified by petitioner "involve the same combination of OAR 584-020-0045 factors as discussed in the previous paragraph," but we are unable to discern from the order why that combination of factors warranted the highest sanction оf revocation. Compare, e.g., In re Day ,
For that reason, 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
Reversed and remanded.
Notes
As noted at the outset, petitioner argues that TSPC decided the facts using the wrong standard of proof-preponderance of the evidence rather than the clear and convincing standаrd. However, as we will later explain, we reject that argument and therefore set forth the facts as found in the final order.
OAR 584-020-0045 provides:
"The Commission may consider one or more of the following factors, as it deems appropriate, in its determination of what sanction or sanctions, if any, should be imposed upon a finding that an educator has violated any standard set forth in OAR 584-020-0040 :
"(1) If the misconduct or violation is an isolated occurrence, part of a continuing pattern, or one of a series of incidents;
"(2) The likelihood of a recurrence of the misconduct or violation;
"(3) The educator's past performance;
"(4) The extent, severity, and imminence of any danger to students, other educators, or the public;
"(5) If the misconduct was open and notorious or had negative effects on the public image of the school;
"(6) The educator's state of mind at the time оf the misconduct and afterwards;
"(7) The danger that students will imitate the educator's behavior or use it as a model;
"(8) The age and level of maturity of the students served by the educator;
"(9) Any extenuating circumstances or other factors bearing on the appropriate nature of a disciplinary sanction; or
"(10) To deter similar misconduct by the educator or other educators."
See, e.g. , ORS 9.160 ("Except as provided in this section, a person may not practice law in this state, or represent that the person is qualified to practice law in this state, unless the person is an active member of the Oregon State Bar."); ORS 677.080(4) (prohibiting the practice of medicine without the required license).
States have approached the standard of proof for revoking teaching licenses or certificates in different ways, and we do nоt divine anything approaching a shared "societal judgment" among the states that would allocate the burden to the state. See Cooper v. Oklahoma ,
OAR 137-003-0665(3) is part of the model rules of procedure for contested cases, which TSPC has adopted by reference. OAR 584-001-0005. For purposes of this case, in which neither party challenges the applicability of that definition, we assume that it reasonably conforms to the legislature's intentions with regard to the meaning of ORS 183.650(2). See Teacher Standards and Practices v. Bergerson ,
Because the order must be remanded with regard to the bases for TSPC's modifications, we decline to address petitioner's fifth assignment of error, in which she argues that the modifications lack substantial evidence and substantial reason. On remand, TSPC will have an opportunity to better explain the bases for the modifications, and identify any evidentiary support for the modifications, which will facilitate meaningful judicial review.