Bergerson v. Salem-Keizer School District

• Decision Date: 08 January 2003
• Citation: 185 Or.App. 649,60 P.3d 1126
• Parties: Karin BERGERSON, Respondent-Cross-Petitioner, v. SALEM-KEIZER SCHOOL DISTRICT, Petitioner-Cross-Respondent.
• Court: Oregon Court of Appeals

60 P.3d 1126

185 Or.App. 649

Karin BERGERSON, Respondent-Cross-Petitioner, v. SALEM-KEIZER SCHOOL DISTRICT, Petitioner-Cross-Respondent.

FDA-02-2; A118518.

Court of Appeals of Oregon.

September 11, 2002.

September 25, 2002.

Decided January 8, 2003.

Andrea L. Hungerford and The Hungerford Law Firm, LLP, Bend, for motion.

Thomas K. Doyle and Bennett, Hartman, Morris & Kaplan, LLP, contra.

Before BREWER, Presiding Judge, and WOLLHEIM and KISTLER, Judges.

On Petitioner-Cross-Respondent's Motion for Review of Fair Dismissal Appeals Board's Denial of Motion to Stay September 11, 2002.

On Respondent-Cross-Petitioner's Response to Motion for Review of Fair Dismissal Appeals Board's Denial of Motion to Stay September 25, 2002.

BREWER, P.J.

Salem-Keizer School District (the district) has petitioned for judicial review of an order of the Fair Dismissal Appeals Board (FDAB) that requires the district to reinstate respondent, a teacher who was terminated by the district for "neglect of duty" and "immorality." Pursuant to ORS 183.482(3)(a), the district moved to stay enforcement of that order pending judicial review. FDAB denied the motion to stay, and the district has asked this court to review that ruling. We granted a temporary stay pending consideration of the parties' contentions. The ultimate questions presented are whether the district has shown a colorable claim of error in FDAB's underlying order and whether the district would suffer irreparable injury if a stay is not granted.

FDAB found the following facts. 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. In January 2001, respondent went to the residence of her estranged husband's girlfriend, where respondent's husband was living. 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. 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.

The district attorney filed a four-count criminal complaint against respondent. Respondent pleaded no contest to one count of criminal mischief, but the plea is revocable if she successfully completes a 36-month probationary period. 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. The district sent a letter to respondent containing factual allegations about the incident and scheduled a meeting with her to discuss the allegations.¹

At some point after that meeting was held, the district decided to recommend respondent's outright dismissal and issued a notice to that effect. The district then arranged for an "informal" evidentiary hearing before a hearing officer. At the hearing, a psychologist who had evaluated respondent testified that her behavior on the day of the incident was an isolated event, not part of a pattern of behavior, and not likely to recur. He also testified that the behavior endangered respondent and would have endangered other persons had they been nearby. In addition, respondent's treating psychiatrist opined that respondent was "emotionally and mentally fit to return to classroom teaching duties." District personnel testified that, within the previous several years, two district teachers had attempted suicide but eventually had returned to classroom teaching after independent medical examinations indicated that each safely could do so. Neither of those suicide attempts, however, had resulted in publicity nor any danger to others. Eleven parents also testified at the hearing. Seven of the parents opposed respondent's return to teaching at her former school, and four supported her return. Following oral argument, the district's board voted to dismiss respondent from employment on the grounds of neglect of duty and immorality. Respondent appealed that decision to FDAB. After a hearing, FDAB found that respondent's job performance had been good and that the district had failed to show that respondent's conduct in her personal life had compromised her effectiveness as a teacher. However, FDAB also found that respondent had breached duties to maintain effective relations with parents, the community, other teachers and staff, and to serve as a role model for students. FDAB also found that respondent's suicide attempt had risked harm to others and that the facts it found "are adequate to justify the legal grounds of neglect of duty and immorality under [ORS 342.865(1)(b) and (d)]." However, FDAB reversed the district's decision to terminate respondent and ordered her reinstatement, with back pay, on the ground that dismissal "was `unreasonable' and `clearly an excessive remedy.'"² In reaching that conclusion, FDAB relied in part on its findings regarding the return to teaching duties of other teachers who had attempted suicide. The district then petitioned for judicial review of FDAB's order and, pursuant to ORS 183.482(3), asked FDAB to stay enforcement of the order pending judicial review.

ORS 183.482(3) provides:

"(a) The filing of the petition shall not stay enforcement of the agency order, but the agency may do so upon a showing of:

"(A) Irreparable injury to the petitioner; and

"(B) A colorable claim of error in the order.

"(b) When a petitioner makes the showing required by paragraph (a) of this section, the agency shall grant the stay unless the agency determines that substantial public harm will result if the order is stayed. If the agency denies the stay, the denial shall be in writing and shall specifically state the substantial public harm that would result from the granting of the stay.

"(c) When the agency grants a stay it may impose such reasonable conditions as the giving of a bond, irrevocable letter of credit or other undertaking and that the petitioner file all documents necessary to bring the matter to issue before the Court of Appeals within specified reasonable periods of time.

"(d) Agency denial of a motion for stay is subject to review by the Court of Appeals under such rules as the court may establish."

With respect to the colorable claim of error requirement, the district argued in its motion for stay that FDAB erred as a matter of law in determining that the district's decision was unreasonable. The district urged that there were significant factual differences between respondent's conduct and the attempted suicides of other teachers who had been permitted to return to teaching duties, in particular that respondent's conduct had involved a risk of harm to others and had resulted in adverse publicity.

With respect to the irreparable injury requirement, the district argued that it had no available positions for which respondent is licensed and qualified that do not involve teaching duties; therefore, reinstating respondent would require it either to create a position that does not now exist, to lay off a teacher now assigned to a position for which respondent is licensed and qualified, or to pay respondent while she performs no employment duties at all. The district also asserted that reinstating respondent would cause irreparable injury in the form of adverse publicity, and protests by parents, and might even result in the withdrawal of students from respondent's classes. The district also contended that paying respondent back pay would result in irreparable injury because there is no assurance that it could obtain restitution of those funds from respondent if it prevails on judicial review.

On August 19, 2002, FDAB denied the district's motion for stay. FDAB characterized the district's "colorable claim of error" arguments as merely "[a]dopting a different perspective on the evidence." FDAB acknowledged that "there is some question of how to apply the deference" that it is required to give to a school district's dismissal decision. However, FDAB determined that the district had not demonstrated a colorable claim of error because the district had not shown that FDAB ignored precedent, failed to address the relevant statutory criteria, or failed to support its decision with findings. In addition, FDAB noted that the district's motion had addressed only the alleged "unreasonableness" of FDAB's decision and had not addressed the alternative ground that dismissal was "clearly an excessive remedy."³

Pursuant to ORS 183.482(3)(d), the district sought this court's review of FDAB's order denying a stay. In support of that request, the district renews the arguments that it made to FDAB. We begin our analysis by addressing several procedural issues raised by respondent.

Respondent first argues that the district's motion is untimely. Respondent notes that FDAB's order reversing her dismissal was issued on May 22, 2002. On July 22, the district's attorney signed the district's petition for judicial review, which this court received on July 25. On July 22, the district also...