1 BEFORE THE TEACHER STANDARDS AND PRACTICES COMlVIISSION
2 OF THE STATE OF OREGON
3
4
5
6 In the Matter of the )
7 Teaching License of ) FINAL ORDER
8 )
9 J UDE EDWIN LEHNER ) Case No. 1102249
10
1 1
12 On August 16, 2012, Senior Administrative Law Judge (ALJ) Ken L. Betterton issued a
l3 Proposed Order in this case. The Commission considered the Proposed Order along with the
14 written exceptions filed by Licensee on August 31, 2012.
15
16 The Commission does not find Licensee’s exceptions persuasive, and hereby adopts the
l7 Findings of Fact, Conclusion 0f Law and Order contained in the attached Proposed Order as the
18 Final Order.
l9
20
2] ORDER
22
23 The Commission adopts the Proposed Order in its entirety and revokes the teaching
24 license of Jude Edwin Lehner.
25
26 64.
27 Dated this 62/ day of November 2012.
28
29 TEACHER STANDARD AND PRACTICES COMMISSION
30
3 1
32 '
33 By. 4%)
34 Victoria C ' , Executive Director
35 Teacher Standards and Practices Commission
36
37
38
39
40
41 NOTICE: You are entitled to judicial review of this order. Judicial review may be obtained by
42 filing a petition for review within 60 days 0f the service of this order. Judicial review is pursuant
43 to the provision of ORS 183.482 to the Oregon Court of Appeal.
PAGE l —FlNAL ORDER — JUDE EDWIN LEHNER

On December /2 , 2012, I mailed the foregoing Final Order and Proposed Order in OAH Case
No. 1102249 to:
By: U.S. First Class Mail
Ralph E. Wiser
Attorney at Law
1 Centerpointe Drive, Suite 570
Lake Oswego OR 97035
By: Shuttle
Raul Ramirez
Senior Assistant Attorney General
Department of Justice
1162 Court Street NE 1
Salem OR 97301-4096 ‘
Hearings Coordinator
Office of Administrative Hearings
4600 251h Avenue NE, Suite 140
Salem OR 97301
warm/B
Melod Hanson
Direct of Profe onal Practices
i CERTIFICATE OF MAHJNG — JUDE EDWIN LEHNER

BEFORE THE OFFICE 0F ADMINISTRATIVE HEARINGS
STATE OF OREGON
for the
TEACHER STANDARDS AND PRACTICES COMMISSION
IN THE MATTER OF THE TEACHING ) PROPOSED ORDER
' LICENSE OF: ) p
)OAH Case No.: 1102249? if i i 5
JUDE E. LEHNER ) é ~' ~ ~ < " ri
' AUG 2 t5 ZQ'IZ
HISTORY or THE CASE 3 , . . j
On August 14, 2009, the Teacher Standard and Practices CommissiontTSPC) i '
issued a Notice of Opportunity for Hearing to Jude E. Lehner (Licensee), seeking to
discipline him for violating laws regarding his license. Licensee filed a request for
hearing on August 21 , 2009.
TSPC referred the case to the Office of Administrative Hearings (OAH) on
September 22, 2009. The case (OAH Case No. 901283) was assigned to Senior
Administrative Law Judge (ALJ) Ken L. Betterton. After a final pre-hearing conference
on February 26, 2010, the case was scheduled for hearing in December 2010. Shortly
before the hearing, TSPC withdrew the case from the OAH.
On March 7, 2011, TSPC filed an Amended Notice of Opportunity for Hearing to
Licensee. The Amended Notice included allegations set forth in the original Notice, but
added allegations against Licensee.
TSPC referred the Amended Notice to the OAH on March 14, 2011. The case
(OAH Case No. 1102249) was assigned to Senior ALJ Betterton.
A telephone pre-hearing conference was held on May 24, 2011. Attorney Ralph
E. Wiser represented Licensee. Senior Assistant Attorney General (AAG) Raul Ramirez
represented TSPC. The telephone pre-hearing conference was continued to June 21,
2011, for the parties to research a procedural issue. Attorney Wiser represented Licensee.
Senior AAG Ramirez represented TSPC. The case was scheduled for a contested case
hearing to start on December 8, 2011.
On July 6, 201 1, Licensee filed a Motion to Dismiss the Amended Notice. TSPC
filed a Response to the Motion on July 22, 2011. Licensee filed a Reply to the Response
on July 29, 2011. On August 19, 201 1, Senior ALJ Betterton issued a Ruling Denying
Motion to Dismiss.
A hearing was held in Salem, Oregon on December 8, 9 and 12, 2011. Attorney
Wiser represented Licensee. Senior AAG Ramirez represented TSPC.
In the Matter of Jude E. Lehner, OAH Case No. 1 102249
Page 1 of 30

The following witnesses testified for TSPC: Licensee; Trish Everson, parent of a
former Union-Baker Education Service District (UBESD) student; Nancy Campbell,
former UBESD fiscal manager; Janie Radinovich-Brose, former UBESD employee;
Donna Valentine, former UBESD employee; and Sherry Diane Cole, former UBESD
teacher and home program coordinator. The following witnesses testified for Licensee:
Sandy Bushek, former teachers’ union official; Jack Adams, Ph.D., former UBESD
superintendent; Arnold Coe, former school district superintendent; and Sherry Diane
Cole. Licensee also testified in his own behalf.

A telephone status conference was held on December 13, 2011 to schedule
closing arguments. Attorney Wiser represented Licensee. Senior AAG Ramirez
represented TSPC. TSPC filed its written closing argument on February 1, 2012.
Licensee filed his written closing argument on February 14, 2012.

A telephone conference was held on March 9, 2012, for the parties to present oral
argument. Attorney Wiser represented Licensee. Senior AAG Ramirez represented
TSPC. The record closed on March 9, 2012 and the matter was taken under advisement.

The proposed order was not issued until after the record closed on August 3, 2012
in a companion case, In the Matter of Sherry Diane Cole, OAH Case No. 1102248.

ISSUES

(1) Whether, by reporting false and/or erroneous student attendance data in order
for the UBESD to receive money the UBESD was not entitled to receive, Licensee
engaged in gross neglect of duty under ORS 342.175(1)(b); OAR 584-020-0040(4)(c)
(knowing falsification/misrepresentation related to employment, licensure or professional
duties); OAR 584-020-0040(4)(o) (substantial deviation from professional standards of
ethics), as it incorporates OAR 584-020-0035(3)(a) (maintain the dignity of the
profession by respecting and obeying the law, exemplifying personal integrity and
honesty); OAR 584-020-0040(4)(o), as it incorporates OAR 584~020-0035(2)(b)
(conduct professional business through established lawful and reasonable procedures);
and OAR 584-020-0040(4)(n) (substantial deviation from professional standards of
competency), as it incorporates OAR 584-020-0010(5) (use of professional judgment).

(2) Whether, by submitting improper claims for travel reimbursement, or in the
alternative, by failing to share expenses with another employee traveling to the same site,
Licensee engaged in gross neglect of duty under ORS 342.175(1)(b), OAR 584-020-
0040(4)(c) (knowing falsification/misrepresentation related to employment, licensure or
professional duties); OAR 584-020-0040(4)(o) (substantial deviation from professional
standards of ethics), as it incorporates OAR 584-020-0035(3)(a) (maintain the dignity of
the profession by respecting and obeying the law, exemplifying personal integrity and

1 honesty); and OAR 584-020-0040(4)(n) (substantial deviation from professional
standards of competency), as it incorporates OAR 584-020-0010(5) (use of professional
judgment).

In the Matter 0f Jude E. Lehner, OAH Case No. 1 102249
Page 2 of 30

(3) Whether, by using travel reimbursement forms to be reimbursed for goods
purchased at retail stores, Licensee engaged in gross neglect of duty under ORS
342.175(1)(b); OAR 584-020-0040(4)(o) (substantial deviation from professional I
standards of ethics), as it incorporates OAR 584-020-003 5(3)(a) (maintain the dignity of
the profession by respecting and obeying the law, exemplifying personal integrity and
honesty); OAR 584-020-0040(4)(o), as it incorporates OAR 584-020-0035(2)(b)
(conduct professional business through established lawfiil and reasonable procedures);
and OAR 584-020-0040(4)(n) (substantial deviation from professional standards of
competency), as it incorporates OAR 584-020-0010(5) (use of professional judgment).

(4) Whether, by submitting a false reimbursement request for a set of glass bowls
(cost $29.99), Licensee engaged in gross neglect of duty under ORS 342.175(1)(b); OAR
584-020-0040(4)(c) (knowing falsification/misrepresentation related to employment,
licensure or professional duties); OAR 584-020-0040(4)(o) (substantial deviation from
professional standards of ethics), as it incorporates OAR 584-020-003 5(3)(a) (maintain
the dignity of the profession by respecting and obeying the law, exemplifying personal
integrity and honesty); and OAR 584-020-0040(4)(n) (substantial deviation from
professional standards of competency), as it incorporates OAR 584-020-0010(5) (use of
professional judgment). .

(5) Whether, by purchasing a vehicle for the UBESD and profiting from the
transaction, Licensee engaged in gross neglect of duty under ORS 342.175(1)(b); OAR
584-020-0040(4)(o) (substantial deviation fi'om professional standards of ethics), as it
incorporates OAR 584-020-003 5(3)(a) (maintain the dignity of the profession by
respecting and obeying the law, exemplifying personal integrity and honesty); OAR 584-
020-0040(4)(n)(substantial deviation from professional standards of competency), as it
incorporates OAR 584-020-003 5(2)(b) (conduct professional business through
established lawful and reasonable procedures); and OAR 584-020-0010(5) (use of
professional judgment). .

(6) If Licensee committed one or more of the above violations, what discipline
should be imposed?

EVIDENTIARY RULING

Exhibits Al through A10, A12 through A16, A20 and A21, offered by TSPC,
were admitted into evidence without objection. Exhibit A22, offered by TSPC, was

admitted into evidence over Licensee’s objection as to relevance. Exhibits A17, A18 and
A19, were excluded from evidence based on Licensee’s objections as to relevance and
that their prejudicial effect outweighed their probative value. Exhibit A1 1, a duplicate of
Exhibit A19, was also excluded from evidence.

The following exhibits, offered by Licensee, were admitted into evidence without
objection: R1 through R14; R16 through R25; R28; R29; R31 through R33; R35 through
R37; R39 through R47; R49 through R51; R55 through R61; and R64 through R71
In the Matter of Jude E. Lehner, OAH Case No. 1102249
Page 3 of 30

(except for R68, which is lefi blank). Licensee withdrew the following exhibits marked
for identification: R15; R26; R27; R30; R34; R48; R52 through R54; R62; and R63.
Exhibit R38 was excluded from evidence based on TSPC’s objection as to relevance.
Pleadings Pl through P21 were also made a part of the record.
FINDINGS OF FACT

Factual background.

(l) Licensee started his teaching career in Oregon in 1979 as a high school
teacher, shortly after graduating from college. He taught in public school for several
years. He then taught and worked in Oregon for several years for the federal bureau of
prisons. (Licensee’s testimony.)

(2) A school district near La Grande, Oregon hired Licensee as a teacher in the
early 1990s. The Union-Baker Education Service District (UBESD) hired Licensee as a
teacher in 1997. (Licensee’s testimony.) The UBESD is an education service district
(ESD) based in La Grande, Oregon. An ESD is a district created by statute to provide
regional educational services to constituent school districts.l (Dr. Jack Adams’s
(Adams’s) testimony.)

(3) In the early 1990s, the UBESD was a relatively small education service
district that contracted with a handful of school districts in northeastern Oregon near La
Grande to provide educational services to those districts. (Licensee’s testimony.) The
UBESD was and is governed by a seven-person board that is elected by the citizens of the
UBESD district. Board members are unpaid, but can be reimbursed for expenses
associated with their board duties. (Dr. Adams’s testimony.)

(4) The UBESD hired Ed Schumacher (Schumacher) as superintendent in 1997,
about the same time that Licensee started working for the UBESD. Lyle Mann (Mann)
was UBESD’s director of alternative education in 1997. He had been a long-time
UBESD employee. As director of alternative education, Mann reported to Schumacher.
(Licensee’s testimony.) Nancy Campbell (Campbell) started working for the UBESD in
August 2000. She soon became the fiscal manager for the alternative education program.
In that position, she reported to Mann and worked with him until the investigations
concluded that led to many individuals leaving the UBESD. (Campbe11’s testimony;
Licensee’s testimony.)

(5) Alternative education, programs designed to serve students not served by the
traditional school setting, such as students who have dropped out of school, are
incarcerated, or are pregnant, as well as home school programs, programs for children
1 “There is created in each region a district to be known as the education service district to consist
of counties and the area of the common school districts as listed in ORS 334.020, with a
governing body thereof to be known as the education service district board.” ORS 334.010.

In the Matter of Jude E. Lehner, OAH Case No. l 102249
Page 4 of 30

whose parents wish to educate them at home, were relatively new in Oregon in the early
1990s. (Licensee’s testimony.)

(6) Alternative education and home school programs began to expand
significantly in Oregon afier the early 19905. Schumacher and Mann saw an opportunity
to expand UBESD’s size and scope and influence by aggressively courting school
districts over a large area of eastern Oregon to contract with UBESD to provide services
to those school districts. By 2004, when the investigations began that led to the notice to
discipline being filed against Licensee, UBESD had contracts with approximately 41
school districts in eastern Oregon. (Ex. A12 at 1.) Those school districts ranged from
The Dalles in the west, to Enterprise in the northeast, to Malheur County in the southeast,
and covered hundreds of square miles over a large area of eastern Oregon. (Licensee’s
testimony; Dr. Adarns’s testimony.)

(7) In approximately 1997, Licensee accepted an offer from Schumacher and
Mann to become an alternative education coordinator for the UBESD. During the times
relevant to this matter, the UBESD had one or two other alternative education
coordinators in addition to Licensee. (Licensee’s testimony.)

(8) Licensee had no prior experience in alternative education when he accepted
the position as coordinator. As an alternative education coordinator, he had responsibility
for alternative education programs for approximately 15 sites in Baker, Union, Wallowa,
Grant and Malheur Counties. His area covered hundreds of square miles over a large part

1 of eastern and northeastern Oregon. (Licensee’s testimony.)

l t

i (9) Licensee’s home office was in a UBESD office in Island City, a town just
northeast of La Grande. His job duties included meeting and coordinating with school
district superintendents, working with resource teachers and parents regarding alternative
education programs; helping to locate sites for alternative education schools and making
certain the sites were properly equipped and supplied; making certain that incarcerated
students had GED (General Equivalency Diploma) programs and materials; and
overseeing the federal lunch program for the alternative education sites under his
responsibility. Licensee’s job required a great deal of travel. He earned a monthly salary
and was not paid overtime. Although his standard work week was Monday through
Friday, 8:00 a.m. to 5:00 p.m., he sometimes worked extra hours during the week. He
also sometimes worked on weekends. (Licensee’s testimony.)

(10) Sherry Diane Cole (Cole) started working for the UBESD in 1995 as a
teacher. Her duties gradually expanded to other areas. By approximately 1999 or 2000,
she had become a coordinator for UBESD’s home school, school-to-work, and youth
corrections programs with the various contracted school districts. Her job duties included
developing curriculums for her programs; working with parents and teachers regarding
instructional materials; making certain school districts and parents had the materials and
supplies they needed; and organizing and presenting in-service training. Cole’s job
required her to travel extensively. Her territory also covered much of northeastern and
In the Matter of Jude E. Lehner, OAH Case N0. 1102249
Page 5 of 30 ‘

parts of eastern Oregon, and took her to many of the same school districts and towns
where Licensee traveled. Her office was also in Island City. (Cole’s testimony.)

(l l) Cole and Licensee became acquainted at work in the mid-19905. They
started living together in approximately 2001, as Licensee was going through a divorce
from his Wife. Cole and Licensee have never married, although they have lived together
as husband and wife since they first started living together. (Licensee’s testimony; Cole’s

i testimony.)

(12) In approximately 2001 , a female UBESD employee accused Mann of sexual
misconduct. A number of employees, including Licensee and Cole, were interviewed by
investigators about their knowledge of the complaint. Licensee and Cole provided
information about the matter that was unfavorable to Mann. The UBESD eventually
settled the civil action brought by the female employee for a substantial but undisclosed
sum of money. Licensee, as well as other employees and individuals connected with the
UBESD, noted that Mann’s attitude toward Licensee changed afier Licensee provided the
information and the matter was settled. (Sandy Bushek’s (Bushek’s) testimony;
Licensee’ s testimony.) Mann acted less friendly toward Licensee and had less contact
with him after the sexual misconduct case settled. Mann started excluding Licensee from
some meetings that Licensee had attended in the past. (Licensee’s testimony.)

(13) In late 2003 or early 2004, a citizen watchdog group in the La Grande area
began to look into the UBESD’s operations for alleged wasteful spending and
mismanagement afler Mann purchased an airplane for the UBESD’s use for travel.
About the same time, for financial reasons, Oregon’s governor was selling an airplane
owned by the state that the governor and other state officials used for travel. Actions by
the watchdog group led to a number of articles in local and regional newspapers that
drew attention to the UBESD over alleged wastefirl spending and mismanagement. (Dr.
Adams’s testimony.)

(14) The investigation by the watchdog group and the attendant publicity of
alleged wasteful spending and mismanagement led to investigations in 2004 and 2005 of
the UBESD by numerous federal agencies, including the Internal Revenue Service, the
U.S. Department of Education, and the U.S. Attomey’s Office. The watchdog group’s
efforts also led to investigations by State of Oregon agencies, including the Department
of Education, the State Police, the Secretary of State’s Office, T SPC, and the Department
of Justice. Some UBESD administrators and employees resigned or were terminated as a
result of the investigations. Some UBESD board members resigned. Schumacher and
Mann were terminated from employment in approximately September 2004 for alleged

, misconduct. (Dr. Adams’s testimony.) UBESD administrators met with Licensee in
September 2004 to review his mileage reimbursement records. The administrators told
Licensee that they had found nothing wrong with the way he reported his mileage
reimbursement requests. (Bushek’s testimony; Licensee’s testimony.)

(15) A grand jury was convened to look into possible criminal conduct by
number of former and current UBESD employees. Licensee testified before the grand
In the Matter of Jude E. Lehner, OAH Case No. 1102249
Page 6 of 30

jury in the spring of 2005. He was not indicted for any crime in connection with his
involvement with the UBESD. (Licensee’s testimony.) Several individuals employed by
the UBESD were indicted and prosecuted, including Schumacher and Mann. Both
Schumacher and Mann were acquitted after a jury trial. Only one UBESD employee,
Matt Combe, was convicted of any crime in connection with the numerous investigations
into the UBESD’s operations. (Dr. Adarns’s testimony.)
(l6) Afier Schumacher’s discharge, the UBESD hired an interim superintendent,
Boyd Swent, who served less than a year. In approximately July 2005, the UBESD hired
Jack Adams, Ph.D., as superintendent to restructure the UBESD and put it on a sound
financial footing. Dr. Adams had retired in 2003 after approximately 33 years of
experience as a school superintendent for a number of school districts in Washington
state. (Dr. Adams’s testimony.)
(l7) The UBESD placed Licensee on administrative leave in September 2004.
(Licensee’s testimony.) He remained on administrative leave until September 2005,
when Dr. Adams brought him back to work for the UBESD. (Dr. Adarns’s testimony;
Licensee’s testimony.) Licensee continued to work for the UBESD until he retired in late
2009. (Licensee’s testimony.)
(18) Dr. Adams reviewed boxes of UBESD records, talked to current and former
employees, talked to UBESD board members, and talked to superintendents of school
districts that contracted with the UBESD, in order to grasp the magnitude of the problems
facing the UBESD. Dr. Adams sold the UBESD’s airplane and many of its vehicles. As
a result of the investigations, federal and state funding that the UBESD had received in
the past was substantially reduced, which forced the UBESD to reduce its staff. Dr.
Adams had to lay off a number of employees for budgetary reasons, including Campbell,
the UBESD’s fiscal manager for alternative education. Campbell was upset over losing
her job and tried to persuade Dr. Adams to keep her on and let employees with more
seniority go. Dr. Adams had to follow lay-off protocol in accordance with the collective
bargaining agreement and could not accommodate Campbell’s request. Campbell left the
UBESD. (Dr. Adams’s testimony.) She eventually went to work for a local hospital.
(Campbell’s testimony.)
(l9) Dr. Adams spent much of the year following his hiring as superintendent
assembling documents to respond to requth and subpoenas from the numerous agencies
investigating the UBESD. He filled the back of his personal pickup several times with
boxes of records to deliver them to Salem for the various investigations. ODr. Adams’s
testimony.)
(20) In the course of examining the UBESD’s records, Dr. Adams found a Travel
Reimbursement Procedures policy for the UBESD that was lastupdated in March 1996.
(Ex. R17.) The policy stated, in part, that employees would be reimbursed for mileage,
for the “most direct and common route,” for use of a personal vehicle, meals and lodging,
l for UBESD travel. (Id.) In talking to employees, Dr. Adams learned that the policy was
i not consistently followed. The policy did not require 0r expect UBESD employees to
' In the Matter of Jude E. Lehner, OAH Case No. l 102249 i

Page 7 of 30

share rides, either in UBESD vehicles or in their personal vehicles, when traveling on
UBESD business. In reviewing records and talking to UBESD employees, Dr. Adams
learned that it was common practice for UBESD employees traveling to the same town
on the same day, to drive separate personal vehicles, and for each to claim reimbursement
for mileage from the UBESD. Employees traveling on the same day to the same building
in other towns were not required or expected by the UBESD’s administration to share
rides. (Dr. Adams’s testimony.)

(21) Dr. Adams learned that it was a common and acceptable practice for
UBESD board members, who often traveled to other cities for conferences or meetings,
each to drive his or her own personal vehicle, and each claim reimbursement for mileage
from the UBESD. There was no practice of board members car pooling to meetings or
conferences to save the UBESD money. Dr. Adams learned that UBESD board members
traveled to meetings and conference in other parts of the country, stayed in expensive
hotels and spent lavishly on meals, and got reimbursed in full for their expenses. Dr.
Adams learned that one UBESD employee from the La Grande area owned a vacation
home in the San Juan Islands in Washington state and oflen drove there. The employee
would drive to the Costco store in the Tri-Cities area of Washington state [Kennewick,
Pasco and Richland], on his way to the San Juan Islands, purchase a small item at Costco
for the UBESD, such as a box of paper towels, drive on to his vacation home and spend
time there, return to La Grande through the Tri-Cities, and claim reimbursement from the
UBESD for mileage from La Grande to the Tri-Cities and back. The employee’s practice
was never challenged by the UBESD’s administration, and the UBESD paid the
employee’s mileage reimbursement requests. (Dr. Adams’s testimony.)

(22) In 2004, the UBESD board hired Dickey and Trernper, LLP (Dickey and
Trernper), certified public accountants and business advisors, in Pendleton, Oregon, to
investigate allegations of misappropriation of assets, violation of the UBESD policies and
procedures, violation of state and federal laws, and fraudulent reporting, for fiscal years
ended June 30, 2002, 2003 and 2004. (Dr. Adams’s testimony; Ex. A5.)

(23) Dickey and Trernper issued a 62-page report dated August 22, 2004 (Ex.
A5), which concluded, in part, as follows: The UBESD had an enormous amount of

. travel, with some employees each claiming between 30,000 and 45,000 miles per year
(Id. at 4.); there was a lack of internal controls regarding district policies; long-time
practices conflicted with some written policies; current business managers did not have
the power to question expenditures approved by administrators; Superintendent
Schumacher did not have complete control of the organization, and that he had particular
difficulty controlling the actions of Mann and Williams [another UBESD administrator].
(Id. at 5.) Dickey and Trernper recommended, among other things, that the UBESD
require that purchases of materials, supplies and equipment be made through the district’s
normal purchasing procedures; and that reimbursement to employees for purchases of
materials, supplies and equipment by employees not be made on travel reimbursement
forms. (Id. at 12.)

In the Matter of Jude E. Lehner, OAH Case No. 1102249
Page 8 of 30

(24) Licensee has been licensed as a teacher with TSPC for approximately 34
years. (Licensee’s testimony.)

(I) Reporting false and/0r misleading student attendance data.

(25) A primary mission of the UBESD was to provide alternative education
services to school districts where the school districts did not provide those services to
students in those individual districts. The UBESD contracted with individual school
districts to provide those services. School districts would receive money from the
Oregon Department of Education (ODE) based on the student attendance that was
reported to the ODE. Student attendance was based on a concept called the “Average
Daily Membership." (Campbell’s testimony; Licensee’s testimony.) Average Daily
Membership (ADM) represented the average number of students in membership on any
given day during an attendance reporting period. (Ex. A12 at 2.) The UBESD was
responsible for tracking attendance in its alternative education programs on a monthly
basis. School districts reported their strident attendance to t_he ODE. The ODE, in turn,
paid each school district for all its students, students in regular school and students in the
alternative education programs. School districts, pursuant to their contracts with the
UBESD, would then pay the UBESD money for the alternative education students. The
higher the ADM numbers that the school districts reported to the ODE for the UBESD’s
alternative education programs, the more money the UBESD would receive from the
school districts with whom the UBESD contracted. (Carnpbell’s testimony; Licensee’s
testimony.)

(26) Teachers at each UBESD alternative education site were responsible for
tracking and recording student attendance. As an alternative education coordinator,
Licensee was responsible for monitoring and reviewing ADM attendance data from each
of the alternative education sites for which he had coordination responsibilities. He

l denied that he had a responsibility to independently verify student attendance reported to
him by the teachers. Licensee simply forwarded the ADM data he received from teachers
to Binnie Kast (Kast), an UBESD employee. Kast would then input the data into a
computer spreadsheet. She would then send the spreadsheet data to Mann and Campbell.
Mann and Campbell would prepare the ADM monthly reports. Licensee also denied that
he participated in preparation of the ADM reports or that he falsified or misreported
ADM data. (Licensee’s testimony.)

(27) Kast worked for the UBESD from approximately 1997 until she retired in
2005. (Ex. R28 at 1.) She first started working for the UBESD grading student papers.
She later moved into food service positions, worked in the athletic department and drove
students to facilities, and finally moved in a clerical position. In the clerical position, she
worked, in part, as Licensee’s secretary. As Licensee’s secretary, she had responsibility
to enter into a Quattro Pro spreadsheet the ADM data submitted by teachers from the

alternative education sites that Licensee oversaw. Afier she entered the ADM data into
the spreadsheet in her computer, she would “lock” the computer and forward the data to
Mann and his assistant, Campbell, who would prepare the ADM reports to be sent to the
school districts and to the ODE. (Ex. R28 at 2.) Kast denied any knowledge as to how
In the Matter of Jude E. Lehner, OAH Case No. 1102249
Page 9 of 30

ADM reports were prepared. She denied that she was ever told to alter the ADM data she
received. (1d.) Mann would tell her from time to time that the UBESD “needed students
for the numbers.” (1d.)

(28) On February 21, 2009, Kast signed a declaration about her work at the
UBESD. (Ex. R27 at 2.) In her declaration, she stated that Mann was her supervisor and
boss; that she sent the ADM data she entered into her work computer to Mann and
Campbell; that Mann and Campbell would review the ADM data and prepare the student
attendance reports that the UBESD would send to the ODE; and that to her knowledge,
Licensee did not participate in or influence the ADM figures that were reported to the
ODE. (1d.) Kast died later in 2009. (Licensee’s testimony.)

(29) Campbell regularly sent ADM reports to school districts over her name.
(Exs. R38 and R51.) In at least one report, she informed the district that if district had
any questions, the district could contact her. (Ex. R38 at l.)

(30) Arnold Coe (Coe) was superintendent of the Cove School District near La
Grande from 1999 until 2003. In that capacity, he had regular dealings with Mann and
Licensee about alternative education issues. He found that Mann’s focus was primarily
on the UBESD getting as much money as possible from the school districts for students
in the alternative education programs. (Ex. R66 at 2; Coe’s testimony.) This led to
instances where Coe believed the UBESD was counting students from his district in the
alternative programs when those students should not have been included in the programs.
He raised his concerns with Mann. Mann told Cole that he should not worry so long as
the district received the ADM money for the students enrolled. Coe found it difficult and
frustrating to get Mann to correct ADM and alternative education attendance data. In
contrast, Coe found that Licensee’s primary focus was providing services to alternative
education students, as opposed to dealing with matters involving payments from the ODE
or reimbursements to the UBESD for alternative education students. (Coe’s testimony;
Ex. R66 at 2.) Coe reported his concerns to the ODE about errors in ADM data for his
district before the investigations into the UBESD’s activities began in 2004. In his
opinion, before the investigations began, ODE seemed disinterested in looking into his
concerns about the accuracy of ADM data. (Coe’s testimony.)

(31) Sandy Bushek (Bushek) worked as a union representative for ESDs,
including the UBESD, and for school districts in eastern Oregon, starting in the early
1990s. In working with the UBESD, she worked with and knew Schumacher, Mann,
Campbell, Licensee, and Cole. She also knew how the UBESD fiinctioned and operated.
She has a good understanding of ADM and the funding relationship between the ODE,
school districts and ESDs. In her opinion, it is not uncommon for school districts to
deliberately over or under report ADM data. Under-reporting ADM data is used by
school districts in the budgeting process as a tool to gain an advantage in contract
negotiations with teachers’ unions by showing that the district has less money than it
actually has or will have. Districts often later go back and revise their ADM data after
contract negotiations have concluded to show the actual ADM numbers. The ODE
understands and accepts that ADM data is often later revised. (Bushek’s testimony.)

In the Matter of Jude E. Lehner, OAH Case No. 1102249
Page 10 of 30

District administrators, and ultimately the superintendent, are responsible for reporting
ADM data. Teachers are not responsible for reporting ADM data. (Bushek’s testimony;
Dr. Adams’s testimony.)

(32) Bushek had a great deal of contact with UBESD employees and
administrators in 2004 and 2005 during the various investigations. She retired in 2006.
Investigators arrived at the UBESD main office one day to ask questions about the
UBESD’s ADM data and reporting procedures. Mann, Schumacher and Campbell were
not unavailable to talk to the investigators. An administration stafi person directed
Licensee to talk to the investigators about the ADM process on behalf of the UBESD.
Licensee had Bushek accompany him to the meeting with investigators. Licensee told
the investigators he knew about the ADM process. Licensee’s name then appeared in one
or more investigative report as the spokesman for the UBESD regarding ADM reporting
procedures. (Bushek’s testimony; Licensee's testimony.)

(33) Afier the publicity about the problems at the UBESD, and various
investigations were conducted, the Oreg0n Secretary of State’s office conducted an audit
of the UBESD’s alternative education program for the periods 1999-2000 and 2003 ~2004,
and issued a report in June 2007. (Ex. A12.) The Secretary of State’s office found that
the UBESD was responsible for tracking and reporting ADM to the districts for
alternative education services. The districts, in turn, were responsible for reporting the
ADM to the ODE. The Secretary of State’s office found multiple instances of the
UBESD misreporting ADM data; instances of the UBESD inappropriately claiming
ADM for students who were not residents of their school district; instances of the
UBESD claiming ADM for students who were either younger or older than allowed by
state rules; and instances of the UBESD submitting duplicate claims for ADM for the
same student. (Id. at 1.) As a result of the errors in reporting ADM attendance data, the
ODE distributed approximately $3.4 million in state funds to school districts that
contracted with the UBESD to which the districts were not entitled. (1d.) l

(2) Submitting false or improper mileage reimbursement claims. ‘

(34) Between August 2001 and June 2004, Licensee claimed mileage
reimbursement fiom the UBESD for 95,527 miles of travel. (Ex. A16 at 30.) Between
August 2001 and June 2004, Cole claimed mileage reimbursement from the UBESD for
90,171 miles of travel. (Id. at 60.) During this time period, the UBESD reimbursed
employees at the rate of 30 cents per mile. During this time period, the UBESD
reimbursed employees for meals at the per diem rate of $5.75 for breakfast, $8.75 for
lunch, and $14.35 for dinner. (Exs. A1, A2.) Arr amount claimed for meals that

exceeded the per diern rate needed to be supported by a receipt. (Licensee’s testimony.)
(35) Licensee and Cole submitted their mileage and travel reimbursement

requests to Campbell. Campbell reviewed the requests, organized them and forwarded
them to Mann for his approval and signature. After Mann approved the requests, the

5 requests were sent to the UBESD’s accounting office for payment. (Campbell’s

‘ testimony.)

i In the Matter 0f Jude E. Lehner, OAH Case No. 1102249

Page 11 of 30

(3 6) Licensee and Cole usually traveled several times a week to various towns
and education sites in eastern Oregon in connection with their respective jobs.
Sometimes their travel took them to the same town on the same day. Sometimes they
rode together in the same vehicle. However, because their job duties and the sites they
needed to visit were different, it usually was not practical for them to ride together.
Although the UBESD owned numerous vehicles that employees could use for work-
related travel, Mann and UBESD administrators did not encourage their use, and did not
encourage employees to ride together. Mann, in particular, encouraged employees to be
as “efficient” as possible, meaning drive directly to their education sites, do their work,

and return to their home station as soon as possible, and not “waste time” trying to
coordinate travel plans to share rides. (Licensee’s testimony; Cole’s testimony.)

(3 7) TSPC in its Amended Notice accused Licensee on approximately 104
occasions between August 2001 and August 2004, of either claiming reimbursement for
mileage when he and Cole actually rode together and each of them separately claimed
reimbursement for mileage, or of claiming mileage separately when they should have
shared rides and only one of them claim reimbursement for mileage. (P10 at 2-8.)

(38) During the late summer and early fall of 2001, the UBESD established an
alternative education school in the Baker City area in a building on the ranch owned by
Benny Ruda (Ruda). In addition to operating a ranch, Ruda was a licensed teacher and
worked for the UBESD. (Licensee’s testimony.) Two teachers with the Baker City
School District, Donna Valentine (Valentine) and Janie Radinovich-Brose (Radinovich-
Brose), became employees of the UBESD and started working at the school on Ruda’s
ranch. Licensee and Cole were actively involved in setting up the school at Ruda’s ranch
and often traveled as many as three times a week from La Grande to Baker City and back
to get the school up and running. (Licensee’s testimony; Valentine’s testimony.)
Valentine and Radinovich-Brose observed that Licensee and Cole usually arrived at the
school together and lefi in the same vehicle. (V alentine’s testimony; Radinovich-Brose’s
testimony.) .

(3 9) For the month of August 2001, Licensee claimed reimbursement for mileage
from La Grande to Baker City and back on 11 days. (Ex. A2 at 1 and 4.) For August
2001, Cole claimed mileage reimbursement from La Grande to Baker City and back 0n
10 days. (Ex. Al at l.) Of those dates, they each claimed mileage from La Grande to
Baker City and back on six days, August l, 2, 3, 13, 14 and 20. (Compare Exs. A1 at 1
and Ex. A2 at 1-4.)

(40) After a few months at the Ruda ranch, the alternative education school was
forced to move to a location in Baker City because of building code problems with the
building on the ranch. (Licensee’s testimony.)

(41) Licensee claimed reimbursement for 320 miles of travel on August 15, 2001
from La Grande to Baker City/Huntington/Malheur County and back. (Ex. A2 at 4.)
Baker City, Huntington and Malheur County are all on 0r near I-84. Interstate 84 is a
In the Matter of Jude E. Lehner, OAH Case N0. 1102249
Page l2 of 30

major highway that runs from Portland through Pendleton, La Grande, Baker City,
Ontario, Boise, Idaho, and east across the western United States. (Ex. A22 at 2.) Cole
claimed mileage reimbursement for 316 miles of travel on August 15, 2001 to
Malheur/Adrian/Nyssa and back. (Ex. Al at l.) The locations where Cole claimed
mileage reimbursement also line up along I-84 and are close to the locations where
Licensee requested reimbursement for travel. 03x. A22 at 2.) Licensee claimed
reimbursement for dinner in the amount of $48.55 on August 15. (Ex. A2 at 4, 7.) Cole
did not claim reimbursement for any meals on August 15. (Ex. A1 at 1.) Licensee’s
reimbursement records show that he claimed mileage of 95 miles from La Grande to
Baker City and back on August l4, 2001. (Ex. A2 at 4.) Cole claimed mileage
reimbursement of 86 miles from La Grande to Baker City and back on August 14, 2001.
(Ex. A1 at 1.) _
(42) Licensee claimed reimbursement for 267 miles of travel from La Grande to

1 John Day/Grant County and back on August 21 , 2001. (Ex. A2 at 4.) He claimed

l reimbursement for dinner on August 21 in the amount of $22.50. He did not claim
reimbursement for breakfast that day. (Id. at 7.) Cole claimed reimbursement for 252
miles of travel to John Day and back on August 21, 2001. (Ex. Al at l.) She claimed
reimbursement for breakfast on August 21 for $31.60, but did not claim reimbursement
for dinner. (Ex. A1 at l; Cole’s testimony.)

(43) Licensee claimed reimbursement for 290 miles of travel from La Grande to
Malheur and Boise, Idaho and back on August 30, 2001. He claimed reimbursement of
$43.87 for dinner, but claimed no reimbursement for breakfast for August 30. (Ex. A2 at
20, 25.) Cole claimed reimbursement for 410 miles of travel to
Malheur/Adrian/Nyssa/Boise and back on August 30, 2001. She claimed reimbursement
of $7.95 for breakfast, but made no claim for dinner on August 30. (Ex. A1 at 1, 3.)
Cole also claimed reimbursement for lodging of $87.68 for double occupancy in a motel
in Boise on August 30/31. (Ex. A1 at 1, 6.) The checkout time from the motel was 5:25
a.m. (Id. at 6.) On her reimbursement request form, Cole listed the reason for going to
Boise as “Costco.” (Ex. A1 at 1.) She did not claim reimbursement for any purchases for
the UBESD at Costco on August 30 or 31. (1d.)

(44) Cole submitted her request for reimbursement for August 2001 on
September 11, 2001. 05x. A1 at 1.) Licensee subrrritted his request for reimbursement
for August 2001 on September 27, 2001. (Ex. A2 at 20.)

(45) Licensee claimed reimbursement for 600 miles for travel from La Grande to
Portland on June 16, and back to La Grande on June 18, 2002, to attend an accreditation
meeting. (Lehner’s testimony.) He claimed reimbursement at the per diem rate for meals
for the trip. (Ex. A2 at 63.) Cole claimed reimbursement for 606 miles from La Grande
to Salem on June 16 to attend a meeting, and back to La Grande on June 18, 2002. (Ex.
A1 at S7.) She claimed reimbursement at the per diem rate for dinner on June 16,
claimed reimbursement at the per diem rate for breakfast, lunch and dinner on June 17,
and claimed reimbursement at the per diem rate for breakfast and lunch on June 18. She
In the Matter of Jude E. Lehner, OAH Case No. 1102249
Page 13 of 30

claimed reimbursement for $32.40 for dinner on June 18 at 4:29 p.m., for two guests at a
restaurant in Hood River. (Id. at 61.)

(46) Licensee claimed reimbursement for 252 miles of travel from La Grande to
John Day and back on Wednesday, August 7, 2002. (Ex. A2 at 69.) He did not claim
reimbursement for mileage, or for anything else, until Monday, August 12, 2002. (1d.)
Cole claimed reimbursement for 688 miles of travel from La Grande to Lakeview and
back, between August 7 and 9, 2002. (Ex. Al at 64.) A commonly traveled major
highway from La Grande to Lakeview passes through John Day. (Ex. A22 at l4.) Cole
claimed reimbursement for lodging for $144.16 at a motel in Lakeview for two guests for
the nights of August 7 and 8. (Ex. Al at 66.)

(47) Licensee claimed reimbursement for 650 miles of travel from La Grande to
Salem and back on August 20, 2002, to purchase supplies at Costco in Salem for the
UBESD for “alt ed.” (Ex. A2 at 69.) He claimed reimbursement for dinner in Baker City
on August 19, 2002 at the per diem rate. (1d.) Licensee purchased $2,136 of supplies at
Costco in Salem at 6:23 p.m. on August 20. (Id. at 70.) He returned to La Grande afier
making the purchase, and claimed reimbursement at the per diem rate for breakfast, lunch
and dinner for August 20m. (Id. at 69.) Cole claimed reimbursement for 606 miles from
La Grande to Salem/Aurora and back on August 19/20, 2002, for “greenhouse and
supplies.” (Ex. Al at 70.) She claimed reimbursement for 252 miles of travel from La
Grande to Baker City/Grant County and back on the morning of August l9, 2002. (1d.)
Cole claimed reimbursement at the per diem rate for dinner on August 19, and claimed
reimbursement at the per diem rate for breakfast and for lunch on August 20. She
claimed reimbursement for dinner on August 20 at 9:28 pm. for $21.55 for two guests at
Sharis in Troutdale. (Ex. A1 at 70, 72; Cole’s testimony.) Cole did not claim
reimbursement for the purchase of any “greenhouse and supplies” on August 19 or 20.
(Ex. A1 at 70.)

(48) Licensee claimed reimbursement for 260 miles from La Grande to John Day
and back on May 29, 2003 for “senior graduation.” (Ex. A2 at 135; Licensee’s
testimony.) Cole claimed reimbursement for 252 miles fi'om La Grande to John Day and
back on May 29, 2003 for a “parent BBQ.” (Ex. A1 at 115; Cole’s testimony.)

(49) Licensee claimed reimbursement for 252 miles of travel from La Grande to
Prairie City/Grant County and back on February 19, 2004, to attend a meeting. (Ex. A2
at 175.) Cole claimed reimbursement for 252 miles from La Grande to Prairie City/Grant
County and back on February l9, 2004. (Ex. Al at 167.)

(3 ) Using the travel reimbursement form for the purchase of goods.

(50) Between August 2001 and June 2004, the UBESD allowed employees to
request reimbursement for the purchase of supplies and equipment on behalf of the
UBESD to be made on its standard “Union-Baker Education Service District,
Mileage/Expense Reimbursement Form.” (Exs. A1, A2; Licensee’s testimony; Dr.
Adams’s testimony.) The UBESD did not require its employees to use a separate
In the Matter of Jude E. Lehner, OAH Case No. l 102249
Page 14 of 30

procedure for the purchase of supplies and equipment; nor did the UBESD require
employees to use reimbursement forms different from the standard mileage/expense
reimbursement form. (Licensee’s testimony; Dr. Adams’s testimony.)

(4) Submitting a false reimbursement request for purchase of glass bowls.

(51) Radinovich-Brose, during the late summer of 2001, saw Cole and Licensee
deliver supplies they had purchased for the alternative education program at Ruda’s ranch
near Baker City. Among the supplies delivered, she saw sets of Pyrex bowls that she
liked. She wanted to buy a set for herself. She asked Licensee to buy her a set of the
bowls when he made a future trip to Costco to buy supplies, and advised that she would
reimburse him. Oladinovich-Broses testimony.)

(52) On September 21, 2001, Licensee made a trip to Costco and purchased
supplies totaling $4,021.68 for the alternative education program at the Ruda ranch. The
purchases consisted of many food stuffs, cleaning supplies and other household items,
including three sets of Pyrex bowls, each set costing $29.99. (Licensee’s testimony.)
The lengthy receipt that Costco gave Licensee specifically identified each item
purchased. (Ex. A2 at 12-19.) Cole accompanied Licensee on the trip. (Cole’s
testimony, Licensee’s testimony.)

(53) On or about September 24, 2001, Licensee and Cole delivered the supplies
to Ruda’s ranch. Radinovich-Brose picked up her set of Pyrex bowls. She started to
write a check payable to Licensee for the bowls. (Radinovich-Brose’s testimony.) As
she began writing “J” [for Jude], Licensee told her to make the check payable to Cole.
(Ex. A20 at l2.) She then wrote the check to “Sherry Cole” for $30.00 for the bowls and
handed the check to Cole, who was standing next to Licensee. (Radinovich-Brose’s
testimony; Ex. A20 at 12.) Cole deposited the check shortly afler September 21. (Cole’s
testimony.)

(54) At the end of September 2001, Licensee submitted a reimbursement request
form to the UBESD for reimbursement of$4,021.68 for the purchases he made at Costco
on September 21. (Licensee’s testimony; Ex. A2 at 12-19) He attached a copy of the
lengthy, detailed Costco receipt to his reimbursement request form. He did not deduct
$29.99 from his reimbursement request for the set of Pyrex bowls that Radinovich-Brose
took, nor did he ever reimburse the UBESD for the bowls. Licensee received
reimbursement fi'om the UBESD for $4,021.68 shortly afier he submitted his
reimbursement request. (Licensee’s testimony.)

‘ (55) Cole also made purchases at Costco on September 21, 2001. (Cole’s

i testimony.) She wrote a personal check to Costco dated September 21, 2001, for $461.49
for the purchases she made. (Ex. R41 at 13-14.) Cole did not keep a copy of her receipt.
She did not later try to get a copy of her receipt from Costco to verify her purchases. She
did not seek reimbursement from the UBESD for any of the purchases she made at
Costco on September 21, 2001. (Cole’s testimony.)
In the Matter of Jude E. Lehner, OAH Case No. 1102249
Page 15 of 30

(5 ) Profiting from the purchase of the van.

(56) The UBESD ofien purchased vehicles and equipment for its operations. It
usually purchased vehicles from State of Oregon surplus sales, but sometimes purchased
used vehicles from private vendors. During 2001, Licensee was in the process of selling
personal property in connection with his recently concluded divorce. (Licensee’s
testimony.)

(57) On August 22, 2001, Licensee attended an auction run by auctioneer David
Kramer (Kramer). Kramer was auctioning property for different individuals. Kramer
had auctioned some of Licensee’s personal property during 2001. Shortly before the
auction started on August 22, a 1993 Aerostar van was brought in for sale. Licensee saw
that the van was in good condition and believed it would fit the needs of the UBESD’s
The Dalles alternative education program. Licensee telephoned Mann and got permission
to purchase the van for the UBESD. Mann told Licensee to “keep it under $4,000.”
(Licensee’s testimony.) Mann told Licensee that the UBESD would reimburse him for
the purchase of the van. Licensee was the successful bidder and purchased the van. He
did not have enough money in his checking account on August 22 to pay Kramer for the
van. (1d.) Licensee did pay the $15 title transfer fee to the Oregon Department of Motor
Vehicles on August 22, 2001 to have title to the van transferred from the seller to the
UBESD. (Ex. A2 at 7; Licensee’s testimony.)

. (58) On or about August 23, 2001, Licensee submitted a reimbursement form to
the UBESD for the month of August 2001 that included, among other items, a request for
reimbursement for $3,900 for the purchase of the 1993 van on August 22, 2001. (Ex. A2
at 4.) The one-page, computer- generated receipt for the purchase of the van that Licensee
attached to his reimbursement request has the word “Receipt” and date of “August 22,
2001” at the top left, with Licensee’s name and home address at the top right. (Id. at 6.)
The receipt has the UBESD’s address below the date. Below the UBESD’s address are
the description of the vehicle and the price of $3,900. Below the description and price,
Licensee hand wrote, “Purchased for The Dalles Alternative Education Program.” (1d.)
The receipt does not have Kramer's name or the name of his business on it. Licensee
received reimbursement of $3,900 for the van, as well as reimbursement for the other
items on his August 23 reimbursement request, shortly afier August 23, 2001.
(Licensee’s testimony.)

(59) Licensee wrote a check dated September 16, 2001, payable to “David
Kramer,” for $3,675.50 for the van. (Ex. R39 at 4; Licensee’s testimony.) In the memo
section on the front of the check, Licensee wrote: “Remaining owed on ESD Van after
sale of personal items.” (Ex. R39 at 4; Licensee’s testimony.) Kramer negotiated the
check on September 17, 2001. (Ex. R39 at 5.) Licensee later sent an email to his brother
in which he boasted that he had bought a van for the UBESD and profited from the
transaction. (Campbe11’s testimony; Licensee’s testimony.) '

(60) Kramer did not testify at the hearing. He signed a “declaration” dated
October 2009. (Ex. R39.) In his declaration, Kramer stated that he and his wife had
In the Matter of Jude E. Lehner, OAH Case No. 1 102249

‘ Page l6 of 30

owned and operated “Kramer’s Auction and Appraisal” since 1975. (Id. at 2.) He
acknowledged that he recalled in approximately 2001 auctioning assets belonging to
Licensee and his former wife. He went on in his declaration to state:

* * *. I understand that Jude Lehner had authority to purchase the van for

the ESD for a total price of $3,900.00.

In payment for the van Jude Lehner provided me a check dated 9/16/01

made payable to “David Kramer” in the amount of $3,675.50. In the note

at the bottom of the check Jude Lehner wrote: “Remaining owed on ESD

Van afier sale of personal items.” The total price for the purchase of the

van was $3,900.00. .
(1d.)

CONCLUSIONS 0F LAW

(l) Licensee did not engage in gross neglect of duty under ORS 342.175(1)(b) by
reporting false and/or erroneous student attendance data in order for the UBESD to
receive money the UBESD was not entitled to receive.

(2) Licensee engaged in gross neglect of duty under ORS 342.175(1)(b) by
submitting false claims for travel reimbursement. Licensee did not engage in gross
neglect of duty by failing to share expenses with another employee traveling to the same

' site.

(3) Licensee did not engage in gross neglect of duty under ORS 342.175(1)(b) by
using travel reimbursement forms to be reimbursed for goods purchased at retail stores.

t (4) Licensee engaged in gross neglect of duty under ORS 342.175(1)(b) by
submitting a false reimbursement request for a set of glass bowls (cost $29.99).

(5) Licensee engaged in gross neglect of duty under ORS 342.175(1)(b) by
purchasing a vehicle for the UBESD and profiting from the transaction.

(6) Licensee’s teaching license should be revoked.

OPINION

TSPC seeks to revoke Licensee’s teaching license. TSPC has the burden of proof

to establish its allegations. ORS 183.450(2) and (5); Harris v. SAIF, 292 Or 683, 690

(1982). The allegations must be proven by a preponderance of the evidence. Sobel v.
Board of Pharmacy, 130 Or App 374, 379 (1994), rev den 320 Or 588 (1995) (standard
of proof under the Administrative Procedures Act is preponderance of evidence absent
legislation adopting a different standard). Proof by a preponderance of the evidence

In the Matter of Jude E. Lehner, OAH Case No. 1102249

Page 17 of 30

means that the fact finder is persuaded that the facts asserted are more likely true than not
true. Riley Hill General Contractor v. Tandy Corp, 303 Or 390, 402 (1987).

TSPC is charged with the responsibility of disciplining teachers and
administrators in Oregon. ORS 342.175 et seq. One basis for disciplining a teacher or
administrator is gross neglect of duty. ORS 342.175(1)(b). TSPC has alleged that
Licensee engaged in gross neglect of duty by violating three sections in OAR 584-020-
0040(4). OAR 584-020-0040(4) defines gross neglect of duty, in relevant part, as
follows:

Gross neglect of duty is any serious and material inattention to or breach

of professional responsibilities. The following may be admissible as

evidence of gross neglect of duty. Consideration may include but is not

limited to:

* * * * *

(c) Knowing falsification of any document or knowing misrepresentation

directly related to licensure, employment, or professional duties;

* * * * *

(n) Substantial deviation from professional standards of competency set

forth in OAR 584-020-0010 through 584-020-0030;

(o) Substantial deviation fi'om professional standards of ethics set forth in

OAR 584-020-0035[.]

OAR 584-020-0010(5) states that the “competent educator” demonstrates a
commitment to the “use of professional judgment.”

OAR 584-020-0035 defines the ethical educator as:

(2) The ethical educator, in fulfilling obligations to the district, will:

(b) Conduct professional business, including grievances, through

established lawful and reasonable procedures[.]

OAR 584-020-0035(3) states that the ethical educator, in fulfilling obligations to
the profession, will:

(a) Maintain the dignity of the profession by respecting and obeying the

law, exemplifying personal integrity and honesty[.]

l The five allegations against Licensee are addressed in turn.
In the Matter of Jude E. Lehner, OAH Case No. 1 102249
Page 1s of 30

(I) Whether, by reporting false and/0r erroneous student attendance data in
order for the UBESD to receive money the UBESD was not entitled to receive, Licensee
engaged in gross neglect of duty under ORS 342.1 75 (I )(b); OAR 584-020-0040(4)(c)
(knowing falsweation/misrepresentation related to employment, licensure or professional
duties); OAR 584-020-0040(4)(o) (substantial deviation from professional standards of
ethics), as it incorporates OAR 584-020-0035(3)(a) (maintain the dignity of the
profession by respecting and obeying the law, exemplifying personal integrity and
honesty); OAR 584-020-0040(4)(0), as it incorporates OAR 584-020-0035(2)(b) (conduct
professional business through established lawful and reasonable procedures); and OAR
584-020-0040(4)(n) (substantial deviation fiom professional standards of competency),
as it incorporates OAR 584-020-0010(5) (use of professional judgment).

TSPC has accused Licensee of gross neglect of duty by reporting false and/or
erroneous data student attendance data in order for the UBESD to receive state education
funds from the state to which the UBESD was not entitled. Licensee denies that he had
the responsibility to report such data and denies that he committed gross neglect of duty
by reporting false and/or erroneous data.

The record contains conflicting evidence on this issue. TSPC’s evidence, much of
it presented through Campbell, portrayed Licensee as having a major role in the UBESD

1 for putting together ADM data and preparing the ADM reports. Licensee downplayed his

‘ role with ADM data, and denied that he was involved in preparing the ADM reports. The

l ODE based its payment of state funds to the UBESD on the ADM reports. The UBESD
was overpaid approximately $3.4 million in ADM funds over a period of several years, as
the Secretary of State’s office later determined in its audit report.

Classroom teachers kept track of and reported student attendance in the
alternative education programs. As an alternative education coordinator, Licensee
reviewed ADM attendance data reported by teachers in the alternative education
programs that he oversaw, but did not verify their accuracy.

With respect to who prepared the ADM reports, how much responsibility should
be attributed to Licensee, and whether TSPC proved that Licensee engaged in gross
neglect of duty for this ground, I find the testimony of Coe, the former superintendent of
a school district who dealt with both Mann and Licensee on student attendance issues in

' the alternative education programs, and the declaration of Kast, most persuasive.

According to Coe, when he challenged Mann’s inclusion of students in the
. alternative education pro gram, Mann dismissed his concerns and refused to adjust the
attendance data. Coe found that Licensee was more focused on providing services to

alternative education students than with student attendance numbers and reimbursement
to the UBESD for alternative education students.

According to Kast, she forwarded the student attendance data she received from
Licensee that he received from the teachers to Mann and Campbell for them to prepare
In the Matter of Jude E. Lehner, OAH Case No. 1102249
Page 19 of 30

the ADM reports. Campbell worked for Mann as his assistant. Kast did not believe that
Licensee participated in or influenced the ADM numbers that were reported to the ODE.

At the hearing, Campbell downplayed her role in the preparation of ADM reports.
However, in correspondence with school districts regarding the AMD reports, she
informed the districts to contact her if they had any questions about their ADM reports.

As explained by Dr. Adams and Bushek, ultimately the UBESD’s administration,
in this case Mann and Schumacher (as superintendent), bore the responsibility for the
accuracy of the ADM reports that led to the UBESD receiving money it turned out it was
not entitled to receive.

In sum, the evidence failed to prove by a preponderance that Licensee knowingly
reported false and/0r erroneous student attendance data that resulted in the UBESD
receiving money that the UBESD was not entitled to receive.

(2) Whether, by submitting improper claims for travel reimbursement, or in the
alternative, by failing to share expenses with another employee traveling to the same site,
Licensee engaged in gross neglect of duty under ORS 3 42. I 75 (I )(b), OAR 5 84-020-
0040(4)(c) (knowing falsification/misrepresentation related to employment, licensure or
professional duties); OAR 584-020-0040(4)(0) (substantial deviation from professional
standards of ethics), as it incorporates OAR 584-020-0035(3)(a) (maintain the dignity of
the profession by respecting and obeying the law, exemplifying personal integrity and
honesty); and OAR 584-020-0040(4)(n) (substantial deviation from professional
standards of competency), as it incorporates OAR 584-020-0010(5) (use of professional
judgment).

TSPC has accused Licensee of gross neglect of duty by submitting false claims
for travel reimbursement, or in the alternative, of failing to share expenses with another
employee (i.e., Cole) traveling to the same sites.

Licensee’s job duties differed from Cole’s job duties. While their travel took
them to the same towns or areas on the same days, they needed to be at different locations
Within those towns or areas at different times. There may have been times when they
could have arranged their schedules to ride together, and in fact they did so on occasion.
However, the UBESD had no policy that required employees share rides. In fact, the
UBESD’s administration encouraged employees to do just the opposite. As part of
Schumacher’s and Mann’s goal of building the UBESD into an empire by collecting
more and more state money, the administration and the overall culture within the UBESD
encouraged employees to take their personal vehicles for travel, and to ride separately
and claim mileage separately. TSPC failed to prove that Licensee engaged in gross
neglect of duty by not riding together with Cole to share travel expenses when the
UBESD had no policy or expectation that employees would do so.

However, whether Licensee and Cole in fact rode together and each claimed
reimbursement for mileage is a different matter entirely. Such conduct of “double
In the Matter of Jude E. Lehner, OAH Case No. l 102249
Page 20 of 30

billing” would be misappropriation of UBESD funds, and in essence would constitute
theft of property, and would clearly constitute gross neglect of duty under the above
administrative rules.

The evidence that Licensee and Cole rode together but each claimed
reimbursement for mileage is circumstantial. However, TSPC presented evidence
establishing more likely than not that on at least several occasions, Licensee and Cole in
fact rode together but each separately claimed reimbursement for mileage

Licensee claimed reimbursement for 290 miles of travel from La Grande to
Malheur and Boise and back on August 30, 2001. He claimed reimbursement for $43.87
for dinner, but claimed no reimbursement for breakfast. The amount of $43.87,
substantially more than the per diem rate for dinner of $14.35, most likely would have
covered two dinners rather than one. It is unclear why Licensee needed to go to Boise, in
another state, on business for the UBESD. Cole claimed reimbursement for 410 miles of
travel to Malheur/Adrian/Nyssa/Boise and back on August 30, 2001. She listed the
reason for traveling to Boise as “Costco.” Exhibit Al at 1. However, she did not submit
any request for reimbursement for the purchase of any supplies at Costco for the UBESD
on that date. She claimed reimbursement for breakfast in the amount of $7.95, but made
no claim for dinner. She claimed reimbursement for lodging of $87.68 for double
occupancy in a motel in Boise on August 30/31. Based on Cole’s reimbursement request,
she traveled to Malheur on August 30, went on to Boise, purportedly to shop at Costco
for the UBESD, spent the night in Boise with someone (i.e., Licensee), and returned to La
Grande early the following morning, yet apparently made no purchases at Costco for the
UBESD. The evidence strongly points to the conclusion that Licensee and Cole rode
together in one vehicle, but each claimed reimbursement for mileage. Their pattern of
one claiming reimbursement for a meal in excess of the per diern rate, and the other not
claiming anything for that meal, and then switching their meal reimbursement requests, is
consistent with the two of them traveling together. Neither Licensee nor Cole offered
any logical explanation to support a conclusion that they took separate vehicles.
Consequently, a preponderance of the evidence demonstrates that Licensee and Cole
improperly double billed the UBESD for mileage for the August 30/31, 2001 trip.

Licensee claimed reimbursement for 600 miles for travel fiom La Grande to

t Portland on June 16 to attend a meeting, and returning to La Grande on June 18, 2002.
He claimed reimbursement at the per diem rate for the meals for the trip. Cole claimed
reimbursement for 606 miles from La Grande to Salem on June 16 to attend a meeting,
and returning to La Grande on June l8, 2002. She claimed reimbursement at the per
diem rate for dinner on June 16, claimed reimbursement at the per diem rate for
breakfast, lunch and dinner on June l7, and claimed reimbursement at the per diern rate
for breakfast on June l8. She claimed reimbursement for $43.40 for dinner on June 18,
for two guests at a restaurant in Hood River at 4:29 p.m. Again, the evidence strongly
points to the conclusion that Licensee and Cole rode together on this trip, yet each
claimed reimbursement for mileage. More likely than not, Cole dropped Licensee off at
his meeting in Portland, drove on to Salem, attended her meeting, then picked License up
in Portland on the way back to La Grande. They stopped in Hood River and had dinner
In the Matter of Jude E. Lehner, OAH Case No. 1102249
Page 21 of 3O

on June 18 at 4:29 p.m. Licensee had no persuasive explanation why he and Cole would
have taken separate vehicles and separately stopped and had dinner together at the same
restaurant on the way back to La Grande. Neither Licensee nor Cole knew who, other
than Licensee, would have had dinner with her in Hood River at that time. Licensee and
Cole improperly double billed the UBESD for mileage for the June l6-18, 2002 trip.

Licensee claimed reimbursement for 252 miles of travel from La Grande to John
Day and back on Wednesday, August 7, 2002. He did not claim reimbursement for '
mileage, or for any other expenses, until Monday, August 12, 2002. Cole claimed
reimbursement for 688 miles of travel from La Grande to Lakeview and back, between
August 7 and 9, 2002. John Day is on a commonly traveled highway between La Grande
and Lakeview. Cole claimed reimbursement for lodging for $ 144.16 at a motel in
Lakeview for two guests for the nights of August 7 and 8. She had no recollection of
who shared the motel room with her, but acknowledged it probably was Licensee. It is
possible that Licensee and Cole could have driven in separate vehicles from La Grande to
John Day on August 7; he could have conducted his business in John Day while Cole
waited; he could have left his vehicle in John Day and ridden with Cole from John Day to
Lakeview, where she conducted her business for the next two days; both of them could
have returned in Cole’s vehicle to John Day on August 9, where Licensee picked up his
vehicle; and they could have driven back to La Grande in separate vehicles. However,
such a scenario is illogical. The more likely scenario is that they rode in the same vehicle
from La Grande to Lakeview and back, and each claimed mileage for separate trips to the
different locations so as not to arouse suspension. Licensee and Cole improperly double
billed the UBESD for mileage for the August 7-9, 2002 trip.

Licensee claimed reimbursement for 650 miles of travel from La Grande to Salem
and back on August 20, 2002, to purchase supplies at Costco for the UBESD. He
purchased $2,136 of supplies at Costco at 6:23 p.m. He returned to La Grande afler
making the purchase and claimed reimbursement at the per diem rate for all three meals
that day. Cole claimed reimbursement for 606 miles from La Grande to Salem/Aurora
and back on August 19/20, 2002, for “greenhouse and supplies.” Exhibit A1 at 70. She
claimed reimbursement for meals at the per diem rate for August l9, and claimed
reimbursement at the per diem rate for breakfast and lunch on August 20. She claimed
reimbursement for dinner on August 20 for $21.55 for two guests at Sharis restaurant in
Troutdale at 9:28 p.m. She did not claim reimbursement for any purchase of greenhouse
and supplies on the trip. Licensee failed to present persuasive evidence why he and Cole
would drive separate vehicles on this trip, why Cole would make the trip to purchase

- greenhouse and supplies, yet not make any such purchases, and why they would happen
to stop in separate vehicles to eat dinner at the same restaurant in T routdale late in the
evening on August 20. Again, more likely than not, Licensee and Cole rode together in
one vehicle on this trip and each claimed reimbursement for mileage. Licensee and Cole
improperly double billed the UBESD for mileage for the August 19-20, 2002 trip.

For August 15 and 21, 2001, May 29, 2003, and February l9, 2004, Licensee and
Cole each claimed reimbursement for mileage for traveling to the same town. Given the
pattern of the specific locations for their trips and the claimed purpose of the trips, and
In the Matter of Jude E. Lehner, OAH Case No. l 102249
Page 22 of 30 _

given their claims for reimbursement for meals 0n these trips—one claiming
reimbursement in excess of the per diem rate for a meal and the other not claiming
anything for that meal, then switching their reimbursement request for other meals on the
trip, more likely than not they rode in the same vehicle and each separately claimed
reimbursement for mileage. They improperly double billed the UBESD for mileage on
these occasions.

Considering the pattern of Licensee’s and Cole’s travel for approximately three
years, and the clear pattern of each claiming reimbursement for mileage on numerous
occasions when they rode together, more likely than not they rode together on at least six
days in August 2001, when they each claimed reimbursement for mileage from La
Grande to Baker City and back to set up the school at Ruda’s ranch. Both Valentine and
Radinovich-Brose testified that they usually saw Licensee and Cole arrive and leave in
the same vehicle during the time period the school at Ruda’s ranch was getting
established. The evidence demonstrates that Licensee and Cole improperly double billed
the UBESD for reimbursement for mileage for at least several days in August 2001.

Licensee and Cole were able to get away with making duplicate claims for
mileage for such a long period of time, in part, because of lax oversight by the UBESD’s
administration.

i Licensee testified that in 2004 the UBESD administration reviewed his mileage

reimbursement requests and found nothing wrong with how he reported his mileage
reimbursement requests. However, no evidence was presented that any review of records

by the administration in 2004 was the same as the exhaustive and detailed review of
records that TSPC made of Licensee’s and Cole’s reimbursement and travel records and
that TSPC presented at the hearing.

In sum, TSPC proved, more likely than not, that Licensee knowingly claimed and
was reimbursed by the UBESD on numerous occasions for mileage worth at least several
hundred dollars to which he was not entitled. Licensee’s conduct of knowingly
submitting false reimbursement forms constituted gross neglect of duty under ORS
342.17 5(1)(b) and the administrative rules cited above.2

(3) Whether, by using travel reimbursement forms to be reimbursed for goods
purchased at retail stores, Licensee engaged in gross neglect of duty under ORS
Z In his written closing argument, Licensee asserts that of the approximately 104 dates identified

~ in the Amended Notice of filing false claims for reimbursement or failing to share travel
expenses, TSPC presented evidence on only a small number of the dates. Licensee requests that
the ALJ “disrrriss” the charges against Licensee for all the other dates. Licensee’s Written
Closing Argument at 14. Licensee cites no authority for an ALJ to grant such a request. It is
unnecessary for TSPC to prove each and every allegation for the approximately 104 dates in
order to establish a violation. Proof of a single instance of filing a false claim for reimbursement
on one date could constitute gross neglect of duty in violation of ORS 342.175(1)(b) and the cited
administrative rules. The number of proven allegations might be important in deter-mining the
appropriate form of discipline to be imposed, but not whether a violation occurred.
In the Matter of Jude E. Lehner, OAH Case No. 1102249
Page 23 of 30

342.175(1)(b); OAR 584-020-0040(4)(o) (substantial deviation from professional
standards of ethics), as it incorporates OAR 584-020-0035(3)(a) (maintain the dignity of
the profession by respecting and obeying the law, exemplifi/ing personal integrity and
honesty); OAR 584-020-0040(4)(o), as it incorporates OAR 584-020-0035(2)(b) (conduct
professional business through established lawfirl and reasonable procedures); and OAR
584-020-0040(4)(n) (substantial deviation from professional standards of competency),
as it incorporates OAR 584-020-0010(5) (use of professional judgment).

TSPC accuses Licensee of gross neglect of duty by using the travel
reimbursement forms to be reimbursed for goods purchased at retail store, such as the
purchases he made at Costco.

After exposure of the mismanagement and fiaud at the UBESD, Dickey and
Trernper, the accounting and business advisory firm hired to investigate the UBESD,
recommended that reimbursement to employees for purchases of materials and supplies
by employees not be made on travel reimbursement forms.

However, during the period of time TSPC accused Licensee of using the improper
form, no evidence was presented that Licensee or any other employee were required by
UBESD policy or procedure to use any form other than the travel reimbursement form to
seek reimbursement for supplies and equipment. No evidence was presented that
Licensee was ever told not to use the travel reimbursement form for reimbursement for
the purchase of supplies or equipment. In fact, the UBESD allowed employees to use the
travel reimbursement form for reimbursement for purchases of materials and supplies.

In the absence of evidence that TSPC required or expected Licensee or other
employees not to use the travel reimbursement to seek reimbursement for supplies and
equipment, TSPC failed to prove that Licensee’s conduct regarding this issue constituted
gross neglect of duty.

(4) Whether, by submitting a false reimbursement request for a set of glass bowls
(cost $29. 99), Licensee engaged in gross neglect of duty under ORS 342.1 75(I)(b); OAR
584-020-0040(4)(c) flcnowingfalsrfication/misrepresentation related to employment,
licensure or professional duties); OAR 584-020—0040(4)(o) (substantial deviation fi'om
professional standards of ethics), as it incorporates OAR 584-020-0035(3)(a) (maintain
the dignity of the profession by respecting and obeying the law, exemplifving personal
integrity and honesty); and OAR 584-020-0040(4)(n) (substantial deviation from
professional standards of competency), as it incorporates OAR 584-020-0010(5) (use of
professional judgment‘).

TSPC accuses Licensee of gross neglect of duty by submitting a false
reimbursement request and receiving $29.99 from the UBESD to which he was not
entitled. Licensee denies the accusation. He contends that Cole purchased the set of
Pyrex bowls that Radinovich-Brose received, and that he did not submit a false
reimbursement request, and therefore did not unlawfully profit from the transaction.

In the Matter of Jude E. Lehner, OAH Case No. 1 102249
Page 24 of 3O

Licensee purchased three sets of Pyrex bowls, together with a large number of
other supplies for the UBESD, from Costco on September 21 , 2001. When he and Cole
delivered supplies to the UBESD’s alternative education in Baker City on or about
September 24, 2001, he gave one set of the bowls to Radinovich-Brose. Licensee
submitted his reimbursement request to the UBESD for September 2001 that included the

. three sets of Pyrex bowls. He did not deduct $29.99 from his reimbursement request, nor
did he ever reimburse the UBESD for one set of bowls. The UBESD reimbursed
Licensee for three sets of Pyrex bowls, but only received two sets.

I find Licensee’s contention that Cole purchased the set of Pyrex bowls that
Radinovich-Brose received, and that he did not submit a false reimbursement request and
did not profit from the transaction, is not credible. Cole made purchases at Costco on
September 21, 2001 totaling $461.49. However, no receipt was ever produced showing
that Cole purchased any Pyrex bowls, Licensee presented no persuasive evidence why he
and/or Cole could not have produced a receipt from Costco showing what purchases Cole
made that day and whether they included Pyrex bowls. Given the failure to present
credible evidence to support the claim that Cole purchased the bowls for Radinovich-
Brose, and given the persuasive evidence that Licensee and Cole knowingly submitted
false claims for reimbursement for mileage as described in Section (2) above, it is
reasonable to conclude that Licensee, not Cole, supplied the set of Pyrex bowls to
Radinovich-Brose.

TSPC has proven, more likely than not, that Licensee knowingly received $29.99
from the UBESD to which he was not entitled. His conduct constituted gross neglect of
duty under ORS 342.175(1)(b) and the administrative rules cited above.

(5 ) Whether, by purchasing a vehicle fbr the UBESD and profiting from the
transaction, Licensee engaged in gross neglect of duty under ORS 342.1 75(1) (b); OAR
584-020-0040(4)(o) (substantial deviation from professional standards of ethics), as it
incorporates OAR 584-020-0035(3)(a) (maintain the dignity of the profession by
respecting and obeying the law, exemplifying personal integrity and honesty); OAR 5 84-
020-0040(4)(n)(substantial deviation from professional standards of competency), as it
incorporates OAR 584-020-0035(2)(b) (conduct professional business through
established lawful and reasonable procedures); and OAR 584-020-0010(5) (use of
professional judgment).

Finally, TSPC accuses Licensee of committing gross neglect of duty by profiting
from his the purchase of the 1993 Aerostar van for the UBESD. Licensee denies that he
personally profited from the transaction.

Licensee paid the auctioneer $3,675.50 out of his own money for the van. He
claimed and received reimbursement of $3,900 from the UBESD for purchase of the van.
Licensee testified that the difference of $224.50 was an offset from the sale of his
personal property that the auction house owed him. Licensee explained that he did not
have enough money in his checking account on the day of the auction to pay for the van.

He claimed that he had enough money in his account to write a check for $3,675.50, that
In the Matter of Jude E. Lehner, OAH Case No. 1102249
Page 25 of 30

he paid that sum to Kramer on the day of the auction, and that difference of $224.50 was
money the auction house owed him from the sale of his personal property.

On or about August 23, 2001, Licensee submitted a reimbursement request to the
UBESD that included $3,900 for the van. The reimbursement request listed the purchase
of the van as occurring on August 22, 2001. Exhibit A2 at 4. The receipt for the
purchase of the van that Licensee submitted to the UBESD with his request for
reimbursement showed August 22, 2001 as the date of the purchase. Id. at 6. Licensee
received reimbursement for the van and the other items on his reimbursement form
shortly after August 23. Licensee’s check for $3,675.50 to Kramer is dated September
l6, 2001. Kramer negotiated the check on September l7, 2001. Exhibit R39 at 4-5.

When it was pointed out to Licensee at the hearing that it was not logical for him
to have sought and received reimbursement for something purchased at an auction that
had not yet occurred, he claimed that the auction occurred on September 16, 2001. When
it was pointed out that records clearly showed that the auction occurred on August 22,
2001, and asked why his check would be dated approximately three weeks later, when he
claimed he had written a check and paid for the van on the day of the auction, Licensee
became flustered and gave contradictory, confusing and illogical answers to questions.

Licensee presented no documentation to corroborate his testimony about the sale
of his personal property. Such records would have existed and likely could have been
obtained from the auction house to support his contention, if in fact he had sold personal
property that explained the difference for what he paid for the van and the reimbursement
he received. Licensee presented no persuasive reason why he could not have obtained
and presented such records.

The receipt for $3,900 that Licensee submitted to the UBESD to document his
purchase of the van is a generic computer generated “receipt” that does not'contain the
logo or name of the auction house, or Krarner’s name or signature. Exhibit A2 at 6. It is
impossible to tell from looking at the receipt where it came from.

Kramer did not testify at the hearing. Licensee did produce a declaration dated
October 2009 and signed by Kramer to support his (Licensee’s) testimony. In his
declaration, Kramer states that he and his wife have owned and operated “Kramer’s
Auction and Appraisal” since 1975. Exhibit R39 at 2. He also acknowledged that he
recalled in approximately 2001 auctioning assets belonging to Licensee and his former
wife. However, a careful reading of Kramer's declaration does not support Licensee’s
testimony regarding the purported offset for the personal property. Kramer’s declaration
states that Licensee wrote on the bottom of the check, “[r]ernaining owed on ESD Van
after sale of personal items.” Id. The declaration does not say that he (Kramer) asserts
that the check for $3,675.50 represented the amount owed afier the sale of Licensee’s
personal property.

Some time afier the transaction, Licensee bragged to his brother that he profited
from the purchase of the van for the UBESD. Licensee presented no coherent, logical
In the Matter of Jude E. Lehner, OAH Case No. l 102249
Page 26 of 30

explanation why he would make such a statement to his brother if the statement were not
true.

I find Licensee’s testimony and evidence about the van transaction not credible.
The more likely scenario is as follows: Licensee purchased the van for $3,675.50 at the
auction on August 22, 2011; he did not have the money in his bank account to pay for the
van that day; he worked out an agreement with Kramer to pay for the van when he had
enough money to do so; he submitted a request for reimbursement for $3,900 (he had
authority from Mann to bid up to $4,000 for a van) from the UBESD on August 23; he
received his reimbursement check shortly thereafler; and he wrote the check to Kramer
on September 16, 2001 for $3,675.50 (a check that Kramer deposited the next day) to pay
for the van.

I believe that Licensee profited fi-om the van transaction in the amount of
$224.50, and that he unlawfully converted that sum of money belonging to the UBESD.
Licensee’s conduct constituted gross neglect of duty under ORS 342.175(1)(b) and the
administrative rules cited above.

( 6) If Licensee committed one or more of the above violations, what discipline _

1 should be imposed?
ORS 342.177(3) sets forth the form of discipline TSPC may take against a
‘ licensee as follows:

* * *. If the decision of the commission is that the charge described in ORS

342.175(1) had been proven, the commission may take any or all of the

following disciplinary action against the person charged:

(a) Issue a public reprimand.

(b) Place the person on probation for a period not to exceed four years and

subject to such conditions as the commission considers necessary.

(c) Suspend the license or registration of the teacher or administrator for a

period not to exceed one year.

(d) Revoke the license or registration of the teacher or administrator. i

(e) Revoke the privilege to apply for a license or registration. ‘

TSPC seeks to revoke Licensee’s teaching license. Licensee denies that he
committed any of the alleged violations. However, he requests that if any violations are
proven, the factors in OAR 584-020-00453 be considered to impose a sanction other than
revocation of his license.

3 OAR 584-o2o-0045 states:
In the Matter of Jude E. Lehner, OAH Case No. 1102249
Page 27 of 3O

Licensee and Cole engaged in a pattern of conduct over approximately three years
in which they repeatedly and unlawfully submitted false claims for reimbursement of
mileage and other expenses from the UBESD. Licensee essentially committed theft of at
least hundreds of dollars of the UBESD’s money. Any discipline less than revocation
would be inappropriate.

The Commission may consider one or more of the following factors, as it deems appropriate, to
determine what sanction or sanctions, if any, should be imposed upon a finding that an educator
has violated any standard set forth in OAR 584-020-0040:

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

pattern, or one of a series of 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 students, other educators, 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 afierwards;

(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 disciplinary sanctions; or

(10) To deter similar misconduct by the educator or other educators.
In the Matter of Jude E. Lehner, OAH Case No. l 102249
Page 28 of 30 .

' ORDER
I proposed TSPC issue the following order:
Revoke Licensee Jude E. Lehner’s teaching license.
Ken L. Betterton
Senior Administrative Law Judge
Office of Administrative Hearings
EXCEPTIONS
The proposed order is the Administrative Law Judge's recommendation to the
Twcher Standards and Practices Cormnission. 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 of the proposed order
with the:
Teacher Standards and Practices Commission
250 Division Street, N.E.
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 Jude E. Lehner, OAH Case No. l 102249
Page 29 of 30

v—wr——_—‘—~w—_——_
CERTIFICATE OF MAILING
On August 1'6, 2012, I mailed the foregoing Proposed Order issued on this date in OAH
Case N0. 1102249.
By: First Class and Certified Mail
Certified Mail Receipt #7010 2780 0000 2132 9202
Ralph Wiser
Attorney at Law
Wiser & Associates
l Centerpointe Dr Ste 570
Lake Oswego OR 97035
By: First Class Mail
J eff Van Laanen
Teacher Standards & Practices Commission
250 Division Street NE
Salem OR 97301
Raul Ramirez i
Assistant Attorney General
Department of Justice
1162 Court St NE
Salem OR 9730l-4096
Lucy Garcia ' ~
Administrative Specialist ’
Hearing Coordinator
In the Matter of Jude E. Lehner, OAH Case No. l 102249 I
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