Bergerson v. Salem-Keizer School Dist.

Decision Date28 July 2004
Citation194 Or. 301,194 Or.App. 301,95 P.3d 215
PartiesKarin BERGERSON, Respondent-Cross-Petitioner, v. SALEM-KEIZER SCHOOL DISTRICT, Petitioner-Cross-Respondent.
CourtOregon Court of Appeals

Nancy J. Hungerford argued the cause for petitioner-cross-respondent. With her on the briefs were Jennifer L. Hungerford and The Hungerford Law Firm.

Thomas K. Doyle, Portland, argued the cause for respondent-cross-petitioner. With him on the briefs was Bennett, Hartman, Morris & Kaplan, LLP.

Before LANDAU, Presiding Judge, and DEITS, Chief Judge,1 and BARRON, Judge pro tempore.

BARRON, J., pro tempore

Petitioner Salem-Keizer School District (the district) seeks review of an order of the Fair Dismissal Appeals Board (FDAB) requiring it to reinstate respondent, a former third grade teacher at Chapman Hill Elementary School. The district dismissed respondent on grounds of "neglect of duty" and "immorality" under ORS 342.865(1)(b) and (d)2 following an incident in which she drove her vehicle into the back of her estranged husband's pickup truck. Respondent cross-petitions, raising challenges to various aspects of FDAB's order. We previously issued a written decision denying the district's motion to stay FDAB's order reinstating respondent. Bergerson v. Salem-Keizer School District, 185 Or.App. 649, 60 P.3d 1126 (2003) (Bergerson I). Now, on the merits, we reverse and remand on the petition, but affirm on the cross-petition.

Because we stated the facts that FDAB found in Bergerson I, we quote from that decision, supplementing with additional facts from FDAB's order where necessary to the issues on review. "Respondent is an elementary school teacher who worked for the district for approximately 19 years. Until her dismissal, she never was the subject of any disciplinary action." Id. at 651, 60 P.3d 1126. Early in 1999, respondent began to encounter marital difficulties. Her husband moved out of the home in March, returned in July, and then moved out again permanently in December 1999. In August 2000, he was involved in a serious motorcycle accident. Respondent was "directly involved with hospital staff in the initial decision-making concerning her estranged husband's medical care." She spent substantial time at the hospital, "essentially work[ing] halftime" for a month at the beginning of the school year. When her estranged husband was stabilized and moved to a rehabilitation center in Salem, respondent "learned, for the first time, that her husband was involved in another relationship when his girlfriend approached her at the center and asked [respondent] to desist from any further involvement with her husband's medical treatment." Within the next few weeks, respondent learned that her husband had commenced dissolution proceedings against her. Around the same time, respondent learned that her son's girlfriend was pregnant. Respondent was present at the birth of the child, whom the girlfriend released for adoption one week later.

Respondent had been attending counseling for the year prior to the incident that precipitated these proceedings. In November 2000, she learned that her counselor was leaving the practice. Respondent planned to find a new counselor after the holiday season. Respondent also discussed her personal situation at meetings with other teachers, which FDAB noted was a common practice among the teachers. Respondent testified that she felt extremely depressed and hopeless as the holidays progressed and, on January 6, 2001, she decided to visit her estranged husband because she wanted him "to take responsibility for his family."

We described the ensuing events in Bergerson I as follows:

"In January 2001, respondent went to the residence of her estranged husband's girlfriend, where respondent's husband was living.[3] After an emotional confrontation with her husband, respondent got in her van and ingested Prozac and pain medication in an attempt to commit suicide. She then drove the van into her husband's pickup truck, which was parked in the driveway, pushing the pickup into the door of the attached garage.
"Two area newspapers reported the incident.[4] Respondent spent one night in the hospital and then voluntarily committed herself to a psychiatric unit. The district hired a substitute teacher and placed respondent on administrative leave with pay. She did not return to teaching after being released from the hospital.[5]
"The district attorney filed a four-count criminal complaint against respondent. Respondent pleaded no contest to one count of criminal mischief,[6] but the plea is revocable if she successfully completes a 36-month probationary period.[7] [At the hearing before FDAB, a] deputy district attorney testified that, if respondent violates the terms of her probation, a judgment of conviction will result automatically, but if she complies with the conditions, `the case will "evaporate" as if it had never been filed.'
"The parents of 12 students at respondent's school expressed concern about respondent returning to teach there. Some staff members at the school also objected to respondent's return. District administrators initially decided that respondent would be reassigned to another school. The district then conducted an additional investigation to determine what knowledge district staff had concerning the incident and whether respondent had previously demonstrated anger control problems in a school setting."

185 Or.App. at 651-52, 60 P.3d 1126.

Eventually, in November 2001, the district superintendent sent respondent a letter notifying her that she was recommending respondent's dismissal and providing the factual basis for that decision.8 The district then provided an informal hearing on December 11, 2001, and the school board was presented with the hearing officer's findings. The school board voted unanimously to dismiss respondent.

Respondent appealed to FDAB. An FDAB panel held a hearing on April 2-4, 2002. At the hearing, a psychologist testified that, based on an evaluation he conducted in January 2002, the January 6, 2001, incident was not part of a pattern of conduct but was, instead, an isolated event that was unlikely to recur. He characterized respondent's behavior as "impulsive" during that incident and as "endangering her and with the potential for endangering other individuals if they had been near the scene, or in the garage." In addition, respondent submitted an August 2001 letter from her treating psychiatrist stating that respondent was emotionally and mentally fit to return to her teaching duties. Evidence before FDAB also included information about two district teachers who had attempted suicide and had been successfully returned to the classroom and about another teacher who, after an incident of spousal abuse as to which the victim had recanted, had been given a letter of warning and had entered into a diversion agreement on a charge of harassment.

Under ORS 342.905(6), FDAB's role in reviewing the school board's decision to dismiss respondent is three-fold.9 It must determine "(1) whether the facts alleged are true and substantiated, (2) whether the facts are adequate to justify the statutory grounds cited, and (3) whether the sanction was arbitrary, unreasonable, or excessive." Ross v. Springfield School Dist. No. 19, 294 Or. 357, 364, 657 P.2d 188 (1982) (Ross I) (noting three inquiries under predecessor to ORS 342.905(6)).

In its findings and order, FDAB found that the following facts contained in the superintendent's November 2001 letter were true and substantiated: (1) respondent drove her vehicle into the back of an unoccupied pickup truck in the possession of her estranged husband, and her conduct was intentional; (2) respondent pleaded no contest to the charge of criminal mischief; (3) as a result of the crash, respondent suffered injuries that required her to be hospitalized and would have rendered her unable to work for at least several days; (4) articles appeared in two newspapers on January 7, 2001, and January 11, 2001, respectively; and (5) parents expressed concern about respondent's returning to teaching as a result of the incident.

FDAB found the following facts contained in the superintendent's letter not to be true and substantiated: (1) respondent was driving at an excessive rate of speed at the time of the incident; (2) the matter was "widely publicized"; (3) respondent had been compromised in her "effectiveness as a teacher" during the two years leading up to the incident; (4) respondent had failed to engage in mental health treatment or to request leave; (5) respondent had indicated that her conduct was acceptable and none of the district's business; and (6) parents had articulated specific facts about which to be concerned prior to the incident. FDAB noted that the "chief law enforcement authority in the area has reached an agreement with [respondent] to resolve the matter with the probability or likelihood of no criminal charges on her record" and that, although the psychologist testified that respondent had acted impulsively and created a danger to herself and others, he also opined that the event was isolated. FDAB also stated that the event did not "cause a public outcry" and that parents neither came forward "in great numbers"10 nor were they aware of the background of the events, the medical opinions concerning respondent since the event, or the district's success in dealing with other teachers who had attempted suicide.

Based on the facts that FDAB found true and substantiated, it concluded that the statutory grounds of neglect of duty and immorality were established. As to the former, FDAB noted that respondent's conduct affected positive relations with parents and the community and the dignity of the profession. It relied on one of its prior decisions, Poole v. Lebanon Community School District, FDA 98-2 (Aug 20, 1998), in which it held that "off-duty"...

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  • Multnomah Cnty. v. Multnomah Cnty. Corr. Deputy Ass'n
    • United States
    • Oregon Court of Appeals
    • January 20, 2022
    ...policy underlying the statute and construe and apply the term consistently with that policy." Bergerson v. Salem-Keizer Sch. Dist. , 194 Or. App. 301, 311, 95 P.3d 215 (2004), aff'd , 341 Or. 401, 144 P.3d 918 (2006). "Determining the general policy expressed in the statute is itself a matt......
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    • Oregon Court of Appeals
    • December 29, 2004
    ...the decision lacks precedential effect. We will adhere to such decisions unless they are "plainly wrong." Bergerson v. Salem-Keizer School District, 194 Or.App. 301, 320, 95 P.3d 215, rev. allowed, 337 Or 616, 103 P.3d 639 The text of ORS 813.215, in relevant part, is as follows: "A defenda......
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    • February 8, 2007
    ...explained its reason for concluding that the dismissal was unreasonable and excessive, and remanded. Bergerson v. Salem-Keizer School Dist., 194 Or.App. 301, 95 P.3d 215 (2004). We recently affirmed that Court of Appeals decision. Bergerson v. Salem-Keizer School Dist., 341 Or. 401, 144 P.3......

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