Jefferson County School Dist. No. 509-J v. Fair Dismissal Appeals Bd.

• Decision Date: 30 May 1991
• Citation: 812 P.2d 1384,311 Or. 389
• Parties: , 68 Ed. Law Rep. 841 JEFFERSON COUNTY SCHOOL DISTRICT NO. 509-J, Respondent on Review, v. FAIR DISMISSAL APPEALS BOARD, Respondent Below, and Carol Kari, Petitioner on Review. 88-6; CA A60800; SC S37373.
• Court: Oregon Supreme Court

Page 1384

812 P.2d 1384

311 Or. 389, 68 Ed. Law Rep. 841

JEFFERSON COUNTY SCHOOL DISTRICT NO. 509-J, Respondent on Review, v. FAIR DISMISSAL APPEALS BOARD, Respondent Below and Carol Kari, Petitioner on Review.

88-6; CA A60800; SC S37373.

Supreme Court of Oregon.

Argued and Submitted Dec. 5, 1990.

Decided May 30, 1991.

Robert Durham, Portland, argued the cause for petitioner on review. On the petition were Barbara J. Diamond, Mark S. Toledo, Margaret S. Olney, and Bennett & Durham, Portland.

Nancy J. Hungerford, Oregon City, argued the cause and filed the response for respondent on review.

Before PETERSON, C.J., and CARSON, GILLETTE, VAN HOOMISSEN, FADELEY and UNIS, JJ.

VAN HOOMISSEN, Justice.

This case involves judicial review of the dismissal of a school teacher. The issues before this court are: (1) whether the Court of Appeals, in its review of an order of the Fair Dismissal Appeals Board (FDAB), exceeded its statutory scope of review under the Oregon Administrative Procedures Act; (2) whether that court correctly interpreted the term "neglect of duty" as it is used in the Fair Dismissal Law; and (3) whether that court correctly remanded for reconsideration FDAB's conclusion that dismissal was an unreasonable and clearly excessive sanction. We affirm the decision of the Court of Appeals.

FACTS

The Jefferson County School District superintendent recommended to the school board that it dismiss Carol Kari, a permanent teacher. ORS 342.895(1). ¹ The recommendation followed a police search of Kari's and her husband's jointly owned home that produced evidence that her husband had been using their home to grow and sell marijuana and that Kari was aware of the drug sales. ² Kari told a police officer involved in the search that she had been aware of her husband's use and sales of marijuana for over two years. She also told the officer that she was concerned about the effect that her husband's unlawful drug activities might have on her job.

Although Kari personally opposed the unlawful use of drugs, obtained counseling regarding her husband's drug activities, and urged her husband to obtain counseling, she did nothing further to curtail his use of the Kari home for unlawful drug activities because, she explained, she was concerned that such action might cause the break-up of her family (which included two young children) and because she feared that her husband might react violently.

In recommending Kari's dismissal, the district superintendent cited "immorality" and "neglect of duty" as the statutory grounds for dismissal. ORS 342.865(1). ³ The neglect of duty allegations were based on Kari's awareness of and acquiescence in her husband's illegal drug activities and her inaction in response to those activities. The superintendent asserted that Kari had neglected three duties: her duty as a teacher to serve as a role model for students and the community by failing to model good citizenship and law abiding behavior; her duty to maintain effective relationships with students, parents, and other staff because, after the fact of her husband's unlawful drug activities became known, members of those groups would be unwilling to work with her; and her duty as a teacher to teach approved District curriculum, which included the district's anti-drug program, because her credibility and effectiveness On appeal, ⁵ FDAB reversed the district's dismissal order. ⁶ FDAB found that "the factual allegations charged against [Kari] are, for the most part, true and substantiated." ⁷ Nonetheless, FDAB ruled that those facts do not justify the statutory ground of "immorality"

                as an anti-drug teacher had been undermined. 4  The district's board voted unanimously to dismiss Kari on both statutory grounds relied on by the superintendent
                

"because they do not show selfish conduct by appellant, they do not show intentional disregard of appellant for the rights, sensitivities or welfare of other persons and they do not show damage to appellant's ability to teach that was caused by illegal or immoral conduct of appellant."

FDAB further ruled that those facts do not constitute the statutory ground of "neglect of duty":

"because the district failed to prove notice to appellant of just what her duty was when she was aware of her husband's marijuana sales and failed to prove that any duty to do more than she did, under the circumstances, was so clear that she should have known of the duty despite lack of notice."

FDAB also ruled that

"[e]ven if it could be said that she should have known she had the duty either to try to stop her husband's drug-selling activity or to physically disassociate herself from him as long as he engaged in such activity, nevertheless, dismissal was an unreasonable and clearly excessive sanction."

The Court of Appeals reversed FDAB's order, and remanded it for reconsideration. Jefferson County School Dist. No. 509-J v. FDAB, 102 Or.App. 83, 793 P.2d 888 (1990). On the question of whether Kari was on notice that she had a duty to the district and that her conduct violated that duty, the court held that FDAB's conclusion that Kari was not on notice did not follow from FDAB's factual findings:

"The workshop training, as described in the findings, gave clear notice that off-duty personal drug involvement was contrary to a teacher's role in connection with the anti-drug instructional program. FDAB's thesis that the training notified teachers that drug use was proscribed, but did not alert them about other forms of drug involvement, is incorrect as a matter of law. No reasonable person could have come away from that training with the understanding that only personal use of drugs was forbidden or that allowing one's house to be used for drug trafficking was compatible with the duty of teaching students to 'say no.' " 102 Or.App. at 89, 793 P.2d 888. (Emphasis in original.)

The Court of Appeals further held that FDAB had incorrectly focused on Kari's family circumstances rather than on her duty to preserve the integrity of her role as an anti-drug teacher. The court concluded that FDAB "misinterpreted and misapplied the statutory term 'neglect of duty,' " because "the correct focus is on the propriety of [Kari's] conduct in the light of her responsibilities to the district and her students." 102 Or.App. at 90, 793 P.2d 888.

On the question of whether dismissal was an appropriate sanction, the Court of Appeals found that FDAB's analysis on that issue also was infected by its erroneous analysis of Kari's "duty." The court stated:

"FDAB's conclusion that the sanction was excessive was based, in large part at least, on its earlier conclusion that Kari's personal circumstances did define her duty. As FDAB stated * * *, the sanction was excessive even if a 'failure to report her husband's activities or [a] failure to separate herself from him amounted' to a neglect of duty. In other words, FDAB's reasoning on the sanction issue was premised on the same misperception of what Kari's duty was that rendered erroneous its reasoning on the neglect of duty issue. FDAB then weighed the cost of performance against the benefits of nonperformance of that misdefined duty in reaching its conclusion about the excessiveness of the dismissal. Kari, it said, was faced 'with the inevitability of the breakup of' her family and was not given notice and the opportunity 'to show that she could refrain from associating with anyone, including her husband, who sold marijuana.' FDAB's analysis of the sanction question was permeated by its miscast focus on the duty question and, if the former needs to be reached on remand, FDAB must reconsider that analysis." 102 Or.App. at 90-91, 793 P.2d 888. (Emphasis in original; footnote omitted).

The Court of Appeals remanded the case to FDAB to apply the proper interpretation of "duty" and, in the light of that interpretation, to reconsider whether Kari had neglected a duty she owed to the district ⁸ and, if so, whether under the circumstances dismissal was an unreasonable or clearly excessive sanction. Id. at 90-91, 793 P.2d 888.

ANALYSIS

Judicial review of an order issued by FDAB is obtained under the judicial review provisions of the Oregon Administrative Procedures Act (APA). ORS 342.905(8); ORS 183.480. Under the APA, a reviewing court has a limited scope of review.

City of Roseburg v. Roseburg City Firefighters Local No. 1489, 292 Or. 266, 271, 639 P.2d 90 (1981). In this case, the pertinent review provisions of ORS 183.482 provide:

"(7) * * * [T]he court shall not substitute its judgment for that of the agency as to any issue of fact or agency discretion. * * *.

"(8)(a) The court may affirm, reverse or modify the order. If the court finds that the agency has erroneously interpreted a provision of law and that a correct interpretation compels a particular action, it shall:

"(A) Set aside or modify the order; or

"(B) Remand the case to the agency for further action under a correct interpretation of the provision of law."

Kari contends on review that the Court of Appeals substituted its judgment for that of FDAB as to the pivotal factual issue in this case, i.e., whether she was on notice of her duty and that she could face dismissal for certain off-duty conduct. She argues that this action exceeds the Court of Appeals' scope of review under ORS 183.482(7).

Although ORS 183.482(7) expressly limits a reviewing court's authority to substitute its judgment for that of the agency as to any issue of fact, ORS 183.482(8)(a) gives a reviewing court express authority to remand a case to the agency if the agency has "erroneously interpreted a provision of law." In this case, the Court of Appeals concluded that FDAB made such an erroneous interpretation. Jefferson County School Dist. No. 509-J v. FDAB, supra, 102 Or.App. at 89-90, 793 P.2d 888. We agree. The term "duty" is part of ORS 342.865(1)(d), the statute that authorizes the dismissal of a permanent teacher for "neglect of duty." The...