r 7 I l
BEFORE THE TEACHER STANDARDS AND PRACTICES COMMISSION
OF THE STATE OF OREGON
In the Matter of the )
Teaching License of ) FINAL ORDER
ROBERT CARL FLATHERS )
) Case No. 700273

On June 6, 2008, Senior Administrative Law Judge (ALJ) Monica A. Whitaker issued
a Proposed Order in this case. Mr. Flathers ﬁled exceptions t0 the Proposed Order on June
20, 2008.

On July 2, 2008, the Commission considered Mr. Flathers’ written exceptions to the
proposed order. The Commission has fully considered the written exceptions and is now fully
advised.

Aﬂer considering the record and the exceptions ﬁled, the Commission now adopts the
Proposed Order as the Final Order, but the Commission has modiﬁed Conclusion of Law 3 as
explained below:

The ALJ’s Conclusion of Law 3 read as follows:

“3. Flathers substantially deviated from the professional standards of
competency by singling out Catholic and Episcopalian students and lecturing
them on Lent. ”

The Commission has modiﬁed the Conclusion of Law 3 as follows:

“3. Flathers substantially deviated from the professional standards of
competency by singling out Catholic and Episcopalian students and making
them explain to other students the meaning of Lent.”

The Commission’s modiﬁcation is a more accurate description of the evidence in the
record as the AL] reasoned. The ALJ’s original Conclusion of Law suggested that Licensee
personally lectured to the students. The evidence in the record showed that Licensee singled
out students based on their religion and had them explain the meaning of Lent to other
students, embarrassing the singled-out students. This modiﬁcation does not alter the
Commission’s analysis in the case. Licensee used students as part of a lecture based on the
students’ religious background. This conduct under the circumstances was a lack of
professional judgment and gross neglect of duty.

ORDER

The Commission adopts the Proposed Order and imposes a Public Reprimand upon

Robert Carl Flathers for violating OAR 584-020-0040(4)(n).
PAGE l — FINAL ORDER — Robert Carl Flathers

Dated this /§ day of May 2010. i
TEACHER STANDARDS AND PRACTICES COMMISSION
By: ' W1)
1ctor1a Cha e lain, xecutive D1rector

NOTICE: You are entitled to judicial review of this Final Order pursuant t0 the provisions of

ORS 183.480. Judicial review may be obtained by ﬁling a petition in the Oregon Court of

Appeals. The petition must be ﬁled within 60 days from the date 0f service of this Final

Order.

PAGE 1 A FINAL ORDER — Robert Carl Flathers

CERTIFICATE OF MAILING
I hereby certify that I served the foregoing order by mailing a true copy thereof certiﬁed by me
as such by U.S. First Class Mail to the Attorney of record for Robert Carl Flathers:
Thomas K. Doyle
Attorney at Law
Bennett, Hartman, Morris & Kaplan, LLP
111 SW Fifth Avenue, Suite 1650
Portland OR 97204-3627
Dated this 3 day of June 2010.
‘W / a
By: 14 1 I’ 4 A M /
Melo I y Hanmaty eeutive Assistant
PAGE 1 - CERTIFICATE OF MAILING — Robert Carl Flathers

p ~ RECEIVED
JUN Q 9 2003
BEFORE THE OFFICE OF ADMINISTRATIVE HEARINGS TeacPe' Siandafd§ a
STATE OF OREGON Practices Commlsston
for the
TEACHER STANDARDS AND PRACTICES COMMISSION
-'- IN THE MATTER OF: ) PROPOSED ORDER
, _ )
ROBERT CARL FLATHERS, ) OAH Case No.2 700273
Licensee )
' . HISTORY OF THE CASE
On September 27, 2007, the Teacher Standards and Practices Commission (TSPC or
Commission) issued a Notice of Opportunity for Hearing charging Robert Carl F lathers with
misconduct, speciﬁcally gross neglect of duty in violation of OAR 584-020-0040(4). On
October 10, 2007, F lathers timely requested a hearing.
TSPC referred the hearing request to the Ofﬁce of Administrative Hearings (OAH) on
October 17, 2007. Administrative Law Judge (ALJ) Monica A. Whitaker was assigned to
preside at hearing. A prehearing conference convened on December 12, 2007. Assistant
Attorney General (AAG) Jeff Dover represented TSPC. Thomas Doyle, Attorney at Law,
represented Flathers.
A hearing was held on April 21 and 22, 2008, in Tualatin, Oregon. Licensee appeared
with counsel and testiﬁed at the hearing. AAG Dover represented TSPC. Testifying on behalf
of TSPC were: J S'; Cameron Lane, TSPC investigator; George Finch, TSPC Coordinator of
Professional Practices; Catherine Baltzor, Principal, Hines Middles School; and David Courtney,
Superintendent, Bums-Hines School District. Testifying on Flathers’ behalf were: Anne Choate;
Sandy Vollee; Linda Dobson; and Mardy Stewart. The record closed at the conclusion of the
April 22, 2008 hearing.
ISSUES
1. Whether Flathers used unreasonable physical force against students J S and SF, in
violation of OAR 584-020-0040(4)(d) and (n).
2. Whether Flathers substantially deviated from professional standards of competency by
slapping student SF and hitting student J S, in violation of ORS 584-020-0040(4)(d).
1 J S is a student and his identity will not be reveled in this Proposed Order. TSPC agreed not to disclose
IS’ identity in its Final Order.
In the Matter 0f Robert Carl F lathers, OAH Case N0. 700273
Page 1 of 10

3. Whether Flathers substantially deviated ﬁ'om professional standards of competency by
singling out Catholic and Episcopalian students and lecturing them on Lent, in violation of ORS

> 584-020-0040(4)(n).

4. Whether Flathers substantially deviated from the professional standards of
competency by failing to recognize the worth and dignity of students, in violation of OAR 584-
020-0040(4)(n).

5. If Flathers conduct violated OAR 584-020-0040(4), what is the appropriate sanction?

EVIDENTIARY RULIN G

Exhibits A1 through A8, offered by TSPC, were admitted into the record. Licensee’s
counsel objected to the authenticity of Exhibit A1. That objection was overruled, as the author
of Exhibit Al testiﬁed at the hearing and authenticated the document. Licensee’s counsel also
raised a standing hearsay objection to many of the exhibits and testimony TSPC offered. The
ALJ overruled the hearsay objection, explaining that hearsay is admissible in administrative
hearings.

Exhibit R1, offered by Licensee, was admitted into the record. Exhibits R2 and R3 were
not admitted into the record.

FINDINGS OF FACT

1. Licensee Robert Carl Flathers began his teaching career in the fall of 1987. At all
times pertinent to this case, Flathers was licensed as an educator by TSPC and was employed by
the Burns-Hines School District. During the 2005-2006 school year,‘ Flathers taught Physical
Education (PE) at Hines Middle School. (Test. of Flathers.)

2. During the 2005-2006 school year, Flathers routinely served breakfast to students
before school started. (Test. of Flathers.) During the week of Lent, some students had black
marks on their foreheads to signify Ash Wednesday, which prompted a student to ask F lathers
about the meaning of Lent. Flathers asked the Catholic and Episcopalian students who were
present in the classroom to stand-up and explain the meaning of Lent to the other students. (Id.)
Several of the Catholic and Episcopalian students felt uncomfortable and embarrassed by
Flathers’ request. (Test. of Baltzor.) F lathers thereafter dismissed all but the Catholic and
Episcopalian students, whom he asked to stay behind. Flathers told the Catholic and
Episcopalian students that he was sorry if he made any of them feel uncomfortable. (Test. of
Flathers.) Several parents contacted Catherine Baltzor, the school principal, to report the
incident. (T est. of Baltzor.) ;

3. During a 2005-2006 spring semester PE class, student ME commented to Flathers that
some of the baseball team pitchers were being “pussies” about practices. Flathers responded by
telling ME that he was no “wuss.” ME believed that Flathers had called him a “puss” or “pussy”
and became upset. ME did not share his belief with Flathers. ME reported the incident to his
father, Joe. Approximately two weeks after the incident, Joe contacted Flathers, at which time
In the Matter 0f Robert Carl F Iathers, OAH Case No. 700273
Page 2 of 10

the two spoke and agreed that ME had misinterpreted the situation. (Test. of Flathers.) Joe
informed Baltzor that he believed the situation had been resolved. (Test. of Baltzor.)

4. On or about March 2, 2006, Flathers gathered his PE students on the bleachers inside
the school gyrrmasium. Flathers started the class by lecturing his students about the US
Constitution and First Amendment rights. (Test. of Flathers.) While Flathers was lecturing,
student J S turned around to talk with another student. On at least two occasions, Flathers
instructed J S to turn around and to stop talking. (Test. of Flathers and Dobson.) After J S again
turned around to talk to another student, Flathers stepped towards J S and tapped him on the side
of the head to gain J S’ attention. (Test. of Flathers, Dobson, and Choate.) Although Flathers
meant only to touch I S to gain his attention, the momentum from Flathers’ steps caused him to
tap J S on the side of his head. (Ex. A8.)

5. J S did not see Flathers step towards him and only felt the contact that Flathers’ ﬁngers
made on his head. (Test. of J S.) J S’ head did not move when Flathers tapped J S. J S did not
have red marks as a result of the tapping. Flathers did not hit or strike J S. (Test. of Dobson and
Choate.) J S reported the incident to his parents, who in turn contacted the police and the school.
(Test. 0f Baltzor.)

6. On March 3, 2006, student SF was lying on a bottom bleacher with his head in a .
female student’s lap. After twice instructing SF to sit up, Flathers tapped SF on his left side to
get his attention. (Test. of Flathers.)

7. On March 3, 2006, Baltzor and David Courtney, the School District’s Superintendent,
interviewed Flathers. During the interview, Flathers admitted that he had asked Catholic and
Episcopalian students to stand-up in class to explain the meaning of Lent to the other students.
Flathers also admitted that he could understand that the students felt singled-out by this incident.
(Ex. Al at 1.)

8. Baltzor prepared typed notes from the March 3, 2006 interview. (Ex. A1.) Baltzor r
also prepared notes from her conversations with various students and parents concerning
Flathers. (Id.) In her notes, Baltzor wrote that ME’s father was upset because Flathers belittled i
his son and called him a “pussy.” (1d. at 10.) Baltzor’s notes also contain a statement that a
parent reported that her daughter said that Flathers used terms like “feeling bitch)?’ during class.
(Id. at 7.)

9. On March 7, 2006, Ofﬁcer Brian Needham of the Harney County Sheriffs Office,
interviewed Flathers about the J S and SF incidents. During the interview, Flathers stated that he
tapped IS, with his ﬁngers spread open, on the side of the head to get J S’ attention and to make
J S stop turning around to talk to other students during a class lecture.2 (Test. of Flathers; ex.
A8.) J S reported to Officer Needham that Flathers had slapped him on the side of the head with
an open hand, between his cheek bone and ear. (Ex. A2 at 5.) SF reported to Ofﬁeer Needham
that Flathers had struck him on the side of the head, near his temple, with an open hand. (Id. at
6.)

2 In his narrative report, Ofﬁcer Needham wrote that Flathers said he “smacked” J S on the back of the

head with an open hand. (Ex. A2 at 7.)

In the Matter of Robert Carl Flathers, OAH Case No. 700273

Page 3 of 10 .

10. Ofﬁcer Needham also interviewed two educational aides, Linda Dobson and Anne '
Choate, about the J S incident. (Ex. A2 at 6 and 7.) Neither Dobson nor Choate saw Flathers hit
IS. Both Dobson and Choate believed that Flathers had tapped or “popped” J S on the side of the
head to gain his attention.3 (Test. of Dobson and Choate.)

ll. Aﬁer reviewing Ofﬁcer Needham’s report, the Grant County District Attorney
detennined that Flathers should not be charged for hitting or slapping J S or SF. (Test. of l
Flathers.) l

CONCLUSIONS OF LAW

l. Flathers did not use unreasonable physical force against students SF and IS.

2. TSPC did not prove that Flathers slapped student SF and hit student IS; therefore,
F lathers did not substantially deviate from professional standards of competency.

3. Flathers substantially deviated from the professional standards of competency by
singling out Catholic and Episcopalian students and lecturing them on Lent.

4. TSPC did not prove that Flathers failed to recognize the worth and dignity of students;
therefore, Flathers did not substantially deviate from the professional standards of competency.

OPINION

Under ORS 342.175 (l)(b), TSPC is authorized to discipline educators licensed in the
State of Oregon for “gross neglect of duty.” OAR 584-020-0040(4) describes “gross neglect of
duty” as “any serious and material inattention to or breach of professional responsibilities.”
More speciﬁcally, under this rule, evidence of neglect of duty may include the following:

(d) Unreasonable physical force against students, fellow employees, or
visitors to the school, except as permitted under ORS 339.250;

* it 1F * Il=

(n) Substantial deviation from professional standards of competency
set forth in OAR 584-020-0010 through 584-020-0030[.]

OAR 584-020-0010 sets forth that a “competent educator” demonstrates a commitment
to:

(5) Use professional judgment[.]

In this case, TSPC alleges that the following acts by Flathers constitute gross neglect of
duty, as defined in OAR 584-020-0040(4): (1) hitting a student, IS, on the side of the head with
an open hand; (2) slapping a student, SF, in the face; (3) singling out Catholic and Episcopalian
3 Ofﬁcer Needham’s narrative report stated that Choate told Needham that Flathers “slapped” J S in the
head. (Ex. A2 at 7.)
1n the Matter of Robert Carl F lathers, OAH Case N0. 700273
Page 4 of 10

l
students and lecturing them on the meaning of Lent; and (4) calling female students “bitchy” l
and male students “puss” or “pussy.” l
TSPC bears the burden of proving the allegations by a preponderance of the evidence. .
ORS 183.450(2) and (5); Reguero v. Teachers Standards and Practices Commission, 312 Or
402, 418 (1991) (burden is on Commission in disciplinary action); Cook v. Employment Div., 47
Or App 437 (1980) (in the absence of legislation adopting a different standard, the standard in
administrative hearings is preponderance of the evidence). Proof by a preponderance of the ~
evidence means that the fact ﬁnder is convinced that the facts asserted are more likely true than
false. Riley Hill General Contractor v. Tandy Corp. 303 Or 390 (1987). Each allegation is
addressed in turn.
A. Hitting Allegation
TSPC alleges that on March 2, 2006, Flathers hit student J S on the side of the head with
an open hand to gain his attention. TSPC asserts that this conduct constitutes a gross neglect of
duty as deﬁned by OAR 584-020-0040(4)(d) and (n) (unreasonable physical force against
students and substantial deviation from professional standards of competency for failing to use
g professional judgment).
At hearing, witnesses offered conﬂicting testimony about whether Flathers hit or tapped
student IS to gain his attention. TSPC oﬁered Ofﬁcer Needham’s written narrative report to
support its assertion that Flathers hit IS on the side of the head with an open hand. In his report,
Ofﬁcer Needham wrote that Flathers admitted to “smacking” IS. However, upon reviewing the
tape recorded interview that Ofﬁcer Needham conducted with Flathers, Flathers did not admit to
or characterize the incident with IS as reported by Officer Needham. In the taped interview,
Flathers admitted to “tapping” IS, but did not admit to hitting, smacking, or striking IS. Flathers
told Needham that he had intended t0 touch IS to gain JS’ attention, but the momentum from
stepping towards IS caused Flathers to tap J S on the side of the head.
In his written report, Ofﬁcer Needham stated that Choate said that Flathers slapped J S on
the side of the head. Ofﬁcer Needham also wrote that Dobson told him that Flathers “popped”
J S in the head to gain his attention. At hearing, Choate and Dobson offered persuasive ﬁrst~hand
testimony that Flathers tapped J S on the side of the head to gain his attention, but never struck or
hit IS. Ofﬁcer Needham did not record his interviews with either Choate or Dobson. Therefore,
those interviews cannot be reviewed and compared to Ofﬁcer Needham’s typed narrative report.
Given that Ofﬁcer Needham mischaracterized Flathers’ statements, I ﬁnd that the report is less
reliable and than the testimony Choate and Dobson offered at hearing.
The evidence shows that Flathers tapped IS on the side of the head to gain his attention.
TSPC failed to establish that Flathers exercised unreasonable force by hitting J S on the side of
the head with an open hand or that Flathers failed to use professional judgment and substantially
deviated from professional standards of competency.
In the Matter of Robert Carl F lathers, OAH Case No. 700273
Page 5 of 10

B. Slapping Allegation

TSPC contends that Flathers slapped student SF in the face on or about March 3, 2006.
TSPC offered Ofﬁcer Needham’s narrative report about his interview with SF. In the report, SF
allegedly made statements that Flathers hit him on the side of the head with an open hand.

Ofﬁcer Needham’s interview with SF was not recorded and could not be reviewed for
accuracy. Given Ofﬁcer Needham’s mischaracterization of Flathers’ statements during the
interview, Needham’s report is not reliable. As such, the report cannot be relied upon as the sole
basis for a ﬁnding that F lathers slapped SF. Flathers explained he simply tapped SF on the leﬁ
side to gain his attention. TSPC failed to show, by a preponderance of the evidence, that Flathers
slapped SF in the face on March 3, 2006. Consequently, TSPC failed to establish that Flathers
failed to use professional judgment and substantially deviated from professional standards of
competency.

C. Singljpg-out Catholic and Episcopalian Students Allegation

F lathers admitted that during the 2005-2006 school year, he asked Catholic and
Episcopalian students to stand up in front of other students and explain the meaning of Lent. By
doing so, Flathers singled-out these students based on their religion and caused the students to be
embarrassed and uncomfortable.

When interviewed about the incident, Flathers explained that he believed the moment
was a “teachable” one and that he never intended to impose religious beliefs on the students.
However, Flathers also admitted that he could understand why the students would have felt the
way they did. Given Flathers’ experience as a teacher, Flathers should have known that singling
out students because of their religion would cause feelings of discomfort and embarrassment. By
singling out the Catholic and Episcopalian students, Flathers failed to use professional judgment
and substantially deviated from professional standards of competency.

D. Name Calling Allegation .

TSPC alleges that Flathers called female students “bitchy” during the 2005-2006 spring
semester, which Flathers denies. TSPC offered typed notes that Baltzor prepared to wpport its

- allegation. Baltzor’s notes state that a parent reported that her daughter said Flathers used terms
such as “feeling bitchy” with his students. This typed statement does not establish by a
preponderance of the evidence that Flathers called female students “bitchy.”

TSPC further alleges that Flathers called male students “puss” or “pussy.” TSPC
contends that F lathers called student ME a “puss” or “pussy,” which Flathers denies. TSPC
offered Baltzor’s typed notes from a conversation with ME’s father to support its position. The
notes contain multiple levels of hearsay, including statements that ME told his father that
Flathers called him a “puss” and that ME’s father reported the incident to Baltzor. At hearing,
Flathers offered persuasive ﬁrst-hand testimony that during his conversation with ME, he told
ME that ME was no “wuss” and that ME misheard F lathers’ statement.

In the Matter of Robert Carl Flathers, OAH Case No. 700273
Page 6 of 10

TSPC failed to show, by a preponderance of the evidence, that Flathers called female
students “bitchy” and male students “pussy” or “puss.” Consequently, TSPC failed to establish
that Flathers failed to recognize the worth and dignity of all persons.

E. Sanction

At hearing, TSPC proposed to revoke Flathers’ teaching license. In considering
disciplinary action against a teacher, TSPC may consider any of the following factors set out in
OAR 584-020-0045 in its determination:

(1) If the misconduct or violation is an isolated occurrence, part of a

continuing pattern, or one of a series or 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 student, other

educations, 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 of 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.

In its Notice of Opportunity for Hearing, TSPC does not state the sanction it seeks against
Flathers’ teaching license. Rather, the Notice states that TSPC may “suspend or revoke your
Oregon teaching license or impose other discipline under ORS 342.177.” It was not until
pressed by the ALJ at the hearing that counsel for TSPC stated that TSPC sought revocation of
Flathers’ teaching license.

Revocation of Flathers’ teaching license is not warranted. TSPC failed to prove three of
its four allegations against Flathers. The only allegation TSPC proved by a preponderance of the
evidence was Flathers’ act of singling out Catholic and Episcopalian students and lecturing them
on the meaning of Lent. That incident was isolated and Flathers acknowledged that he could
understand how his conduct embarrassed students and made them feel uncomfortable.
Considering the factors listed above in light of the circumstances in this case, I ﬁnd that a Public
Reprimand is an appropriate sanction for the one violation of OAR 584-020-0040(4).

In the Matter of Robert Carl F lathers, OAH Case No. 700273
Page 7 of 10

ORDER
I propose the Teacher Standards and Practices Commission impose a Public Reprimand
on Licensee Robert Carl Flathers for violating OAR 584-020-0040(4)(n) on one occasion.
Monica A. Whitaker
Senior Administrative Law Judge
Ofﬁce of Administrative Hearings
ISSUANCE AND MAILING DATE: June 6, 2008
EXCEPTIONS
The proposed order is the Administrative Law Judge's recommendation to the Teacher
Standards and Practices Commission. If you disagree with any part of this proposed order, you
may'ﬁle written objections, called "exceptions," to the proposed order and present written
argument in support of your exceptions. Written argument and exceptions must be ﬁled within
fourteen (14) days after mailing 0f the proposed order with the:
Teacher Standards and Practices Commission
465 Commercial Street, NE
Salem, Oregon 97301
The Commission need not allow oral argument. The Executive Director may permit oral
argument in those cases in which the Director believes oral argument may be appropriate or
helpful to the Commissioners in making a ﬁnal determination. If oral argument is allowed, the
Commission will inform you of the time and place for presenting oral argument.
In the Matter of Robert Carl Flathers, OAH Case No. 700273
Page 8 of 10

APPENDIX A
LIST OF EXHIBITS CITED
Ex. Al: District’s Investigative Report
Ex. A2: Hamey County Sheriffs Narrative Report
Ex. A8: Taped Police Interview of Robert Carl Flathers
In the Matter of Robert Carl F Iathers, OAH Case No. 700273
Page 9 of 10

CERTIFICATE OF MAILING

On June 6, 2008, I mailed the foregoing Proposed Order in OAH Case No. 700273.
By: First Class and Certified Mail
Certiﬁed Mail Receipt #7006 0100 0002 2811 1863
Thomas Doyle
Attorney at Law
lll SW Fifth Ave Ste I650
Portland OR 97204-3627
By: First Class Mail
George Finch
Teacher Standards & Practices Commission
465 Commercial Street NE
Salem OR 97301
Jeff Dover
Department of Justice
1162 Court Street NE
Salem OR 97301-4096

Lucy Garcia
Administrative Specialist
Hearing Coordinator
In the Matter of Robert Carl Flathers, OAH Case No. 700273
Page 10 of 10