Eicks v. Teacher Standards & Practices Comm'n

270 Or.App. 656

349 P.3d 591

Robyn A. EICKS, Petitioner

v.TEACHER STANDARDS AND PRACTICES COMMISSION, Respondent.

001GB069307

A148581.

Court of Appeals of Oregon.

Argued and Submitted Jan. 2, 2014.

Decided May 6, 2015.

Thomas K. Doyle, Portland, argued the cause and filed the briefs for petitioner.

Inge D. Wells, Senior Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Erin C. Lagesen, Assistant Attorney General.

Before ORTEGA, Presiding Judge, and DUNCAN, Judge, and DeVORE, Judge.

Opinion

ORTEGA, P.J.

Petitioner seeks judicial review of the final order of the Teacher Standards and Practices Commission (TSPC) denying the renewal of her teaching license. Petitioner assigns error to the TSPC's conclusion that she engaged in gross neglect of professional duties “to exemplify personal integrity and honesty” and “to use professional judgment” when she allowed her foster son to stay in her car in the school parking lot during work hours, arguing that, the conduct does not relate to her profession. Because we conclude that the TSPC failed to demonstrate a nexus between petitioner's professional duties and her treatment of her foster child, we reverse and remand.¹

We take the facts from the final order and the record's uncontroverted evidence. Talbott v. Teacher Standards and Practices Comm., 260 Or.App. 355, 358, 317 P.3d 347 (2013). However, we review de novo an agency's modification of the administrative law judge's (ALJ) historical findings of fact and, as indicated below, do not accept all of the TSPC's findings. ORS 183.650(4) ; Moon v. Government Standards and Practices, 198 Or.App. 244, 246 n. 1, 108 P.3d 112 (2005).²

The TSPC denied petitioner's application³ for a school psychologist license and a school counselor license based on her conduct of leaving her foster son, M, in her car in the parking lot of the school where she worked for two days in January 2007. Petitioner has a doctoral degree in counseling and had been licensed as a school psychologist since 1989. In 1994, she began working as a school counselor in the Sweet Home School District (the district). During her tenure, petitioner received favorable evaluations from the district while employed, including during the 2007–2008 school year. The district ended her employment in 2008 after the TSPC denied petitioner's license application.

In 2004, the Department of Human Services (DHS) asked petitioner to consider providing foster care for M, a student whom petitioner had previously counseled. M had been removed from a previous foster placement because he had threatened to kill the foster parent. M was removed from a second foster placement after threatening to make false reports of abuse and neglect to DHS and police and threatening to kill or harm his foster parents and their children. Petitioner was generally aware of these issues, but nevertheless agreed to provide foster care for M, and began doing so when M was 11 years old.

M's behavior continued to escalate while in petitioner's care. M would intentionally defecate in his pants and refuse to clean himself, would eat dog food, would kick and bite other students, and would refuse to come inside at night for meals or at bedtime. Petitioner worked with a treatment team that included a family counselor and psychiatrist to implement a plan to address M's behaviors. To address M's willful self-defecation, the psychiatrist instructed petitioner to provide M with water, soap, and a towel and have him clean himself at an outdoor water spigot. Petitioner was instructed to offer a hot dinner at a set time and, if M refused to come in, to offer fruit and sandwiches instead. If M refused to come in at night during the warmer months, the team told petitioner to provide a warm sleeping bag and allow M to sleep on the screened-in porch. Petitioner had concerns about the plan, but received repeated assurances from DHS and the counselors that the plan was appropriate. M complained to his teachers that he was not getting enough to eat and that he had to bathe outside.

In January 2007, M, then aged 13, developed some nasal congestion, but according to petitioner, “did not appear to be really sick or to have a cold.” Petitioner informed M's student aide, who instructed petitioner not to bring M to school if he was sick. Petitioner had largely exhausted her leave and had no respite care because M's treatment of previous respite providers had made them unwilling to watch him. Petitioner decided to bring M to school with her and have him stay in her car outside an occupied classroom. She provided M with a sleeping bag and pillow, a large jacket, a book, and a Gameboy with new video games. M asked petitioner not to turn on the car's heater because it was too warm and he complained when she used it to dehumify the windows so that she could see more easily into the car. Petitioner checked on M every 30 minutes,⁴ let him use the restroom inside the school, and brought him a warm school lunch from inside. Petitioner followed this procedure two days in a row. There is some dispute over the outside temperature during those two days, but no dispute that M was comfortable in the car; the second day, M even told petitioner not to bring the sleeping bag because he had not used it the previous day.

After the first day, petitioner informed M's student aide that M had stayed in her car during the day and that he might do so the following day. The aide informed M's alternative education teacher, and the two went to see M in the car the next day. They left him in the car, but reported petitioner to the sheriff's office for suspected abuse of M. A deputy interviewed petitioner and M later at home, concluded that M appeared to be well and happy, and closed the matter.⁵

Based on the January 2007 events, as well as other alleged conduct, the TSPC issued a “Notice of Opportunity for a Hearing” proposing to revoke petitioner's current license and denying her pending application for a new license. In the notice, the TSPC alleged that petitioner's actions in leaving M in the car on two days that were “close to or below freezing at times” constituted

“gross unfitness under ORS 342.175(1)(c) in violation of OAR 584–020–0040(5)(e) (acts constituting criminal conduct) because your conduct constitutes Criminal Mistreatment II under ORS 163.200(1)(a) or (b) ; or Criminal Mistreatment I under ORS 163.205(1)(a) or (b)(C). This conduct also constitutes gross neglect of duty under ORS 342.175(1)(b) in violation of OAR 584–020–0040(4)(n) as it incorporates OAR 584–020–0010(5) (Professional Judgment); and OAR 584–020–0040(4)(o ) as it incorporates OAR 584–020–0035(3)(a) (Maintain dignity of profession by obeying law exemplifying personal integrity and honesty).”

Petitioner sought a hearing before an ALJ, which resulted in a proposed order that concluded that the TSPC had not established grounds for denying petitioner's license applications.

The TSPC then issued an amended proposed order accepting the ALJ's conclusion that it had not established that petitioner had engaged in criminal conduct. However, the TSPC rejected the ALJ's conclusion that petitioner's conduct involving M staying in her car did not amount to gross neglect of duty under ORS 342.175(1)(b) and applicable TSPC rules. The TSPC proposed denying petitioner's application for school counselor and psychologist licenses. After petitioner filed exceptions to that proposed order, the TSPC issued a final order that reached the same conclusions. Petitioner now challenges that final order.

We begin our review by laying out the applicable law. ORS 342.175(l ) (b) authorizes the TSPC to suspend and revoke teachers' licenses based on “gross neglect of duty.” The statute further provides that “[v]iolation of rules adopted by the [TSPC] relating to competent and ethical performance of professional duties shall be admissible as evidence of gross neglect of duty or gross unfitness.” ORS 342.175(6). The TSPC has adopted administrative rules that define “gross neglect of duty” as “any serious and material inattention to or breach of professional responsibilities.” OAR 584–020–0040(4). “Gross neglect of duty” includes any “[s]ubstantial deviation from professional standards of competency set forth in OAR 584–020–0010 through OAR 584–020–0030 ” and any “[s]ubstantial deviation from professional standards of ethics set forth in OAR 584–020–0035.” OAR 584–020–0040(4)(n), (o ). OAR 584–020–0010(5) mandates that “[t]he educator demonstrates a commitment to,” among other things, “use professional judgment.” Finally, OAR 584–020–0035(3)(a) states that “[t]he ethical educator, in fulfilling obligations to the profession, will,” among other things, “[m]aintain the dignity of the profession by respecting and obeying the law, exemplifying personal integrity and honesty.”

Based on the foregoing administrative rules, the TSPC concluded that petitioner's conduct of leaving M in the car at her workplace deviated from the requirement in OAR 584–020–0035(3)(a) that educators “exemplify[ ] personal integrity and honesty” and the requirement in OAR 584–020–0010(5) that educators “use professional judgment.” Accordingly, it concluded that petitioner's deviation from TSPC standards qualified as “gross neglect of duty” under OAR 584–020–0040(n) through (o ) and ORS 342.175(1)(b). The TSPC rejected petitioner's argument that her conduct toward M lacked a nexus to her profession sufficient to allow the commission to revoke her license, explaining that petitioner's conduct was directly connected to her professional responsibilities as a school counselor because the conduct occurred at petitioner's place of employment. The TSPC further determined that a sufficient nexus was established because, “as a school counselor, [petitioner was] expected to use a high degree of judgment in dealing with students” and “the way an educator behaves toward...