‘ BEFORE THE TEACHER STANDARDS AND PRACTICES COMMISSION
OF THE STATE OF OREGON
In the Matter of the Teaching License of: ) FINAL ORDER
)
GERALD LEROY SPEES ) Hearing Officer Panel Case
) No. 20012876
On March 28, 2002, Administrative Law Judge Ella D. Johnson issued a Proposed
Order in this case. On April 10, 2002, Gerald Leroy Spees submitted exceptions to the
proposed order through his attorney, Aruna A. Masih. Ms. Masih subsequently presented
oral argument to the Commission.
After having considered the Proposed Order and the entire record in this case, the
Teacher Standards and Practices Commission adopts the attached Proposed Order dated
March 28, 2002 and incorporates by reference the Findings of Fact and Conclusions of
Law contained in the Proposed Order, except as modified herein.
' Conclusion of Law concerning Mr. Specs’ interaction with Student MP
The Commission modifies the language appearing on pages l8 and l9 of the
Proposed Order as follows:
With respect to the incident which occurred on October 23, 2000, the
Commission finds that Spees’ yelling and bumping and violating of the personal
space of MP did violate OAR 584-020-0040(4)(d), 584-020-0040(4)(n) and 584-
020-0030(2)(b). The physical force was not authorized by school policy and was
unreasonable under the circumstances. In addition, Mr. Spees’ intimidating
verbal behavior violated the requirement under OAR 584-020-0030(2)(b) that a
teacher use skill in communicating with students, staff and patrons of the district.
MP did not testify at the hearing due to a death in the family. However, the
eyewitness testimony of Donna Henry fl-Ienry) establishes that the physical force
used by Spees in bumping his chest against MP and screaming and violating the
student’s personal space in an intimidating manner was willful, unjustified and
unauthorized. Moreover, Specs’ actions were clearly inappropriate even though
MP may have feigned swings at him. Specs did not testify or argue that he was 1
defending himself. He testified that he yelled and poked his finger at MP to make
sure the student knew he was serious.
Consequently, the Commission concludes that Spees’ conduct in this
regard violated OAR 584-020-0040(4)(d) and 584-020-0030(2)(b). Because
' Spees‘ verbal interaction with the student was a substantial deviation from
Page l — FINAL ORDER/GERALD LEROY SPEES — B6972

professional standards, it also constitutes gross neglect of duty under OAR 584-
. 020-0040(4)(n).

At the outset of the hearing, the Commission was permitted to amend the
allegations in the Notice of Opportunity for Hearing to provide that Mr. Specs’ conduct
with respect to MP constituted both unreasonable physical force under OAR 584-020-
OO40(4)(d) and a substantial failure to use skill in communicating with students under
OAR 584-020—0030(2)(b). The hearing officer’s findings support a conclusion that
Spces violated OAR 584-020-0030(2)(b).

There was conflicting testimony as to whether Mr. Specs bumped this student.
The Commission concludes by a preponderance of the evidence that that Mr, Specs
caused some physical contact with the student; even if physical contact had not occurred,
Mr. Specs’ behavior was inappropriate and amounted to gross neglect of duty.

Mr. Spees requested the opportunity to present additional evidence because of the
failure of MP to appear at the hearing. The hearing record is now closed, and no request
for a continuance was made at the time of the hearin g. In light of this fact and in light of
the Commission’s conclusions on this issue, the request to present additional evidence is
denied.

Conclusion of Law concerning Statements to SR and RB

. The Commission modifies the language appearing on page 20 of the Proposed
Order by deleting the conclusion that Mr. Specs’ statements to these students constituted
a violation of Commission standards at the time this conduct occurred.

Mr. Specs made these statements in January 1988. At that time, the Commission
had not adopted standards concerning inappropriate verbal conduct of a sexual nature
when directed toward a student or students. The Commission’s rules prohibited “sexual
contact” with a student, but Mr. Specs did not violate this provision.

The Commission nonetheless finds that the sanction contained in the Proposed
Order is fully warranted based on Mr. Specs’ other violations of professional standards.

Page 2 — FINAL ORDER/GERALD LEROY SPEES — B6972

O ORDER
Based on the foregoing, the Commission adopts the Proposed Order, except as set
forth above, and orders that the Oregon Teaching License of Gerald Leroy Specs is
suspended for a period of 90 days from the date of the Order.
Dated this / 7 day ofMay, 2002.
TEACHER STANDARDS AND PRACTICES COMMISSION
By: Z ‘fvf
David V. Myton, Executive Dire tor
NOTICE: You are entitled to judicial review of this order. Judicial review may be
obtained by filing a petition for review within 60 days of service of this order. Judicial
review is pursuant to the provisions of ORS 183.482 to the Oregon Court of Appeals.
Page 3 a FINAL ORDER/GERALD LEROY SPEES i B6972

;. RECEIVED
APR 0 2 2002
‘ BEFORE THE HEARING OFFICER PANEL Tum" Standards a
STATE ()F OREGON Practice‘ Commlulon
for the
TEACHERS STANDARDS AND PRACTICES COMMISSION

In the Matter of the Teaching License of: ) PROPOSED ORDER

)
GERALD LEROY SPEES ) Hearing Officer Panel Case No. 20012876

)

)

HISTORY OF THE CASE
Gerald Leroy Specs, (Respondent or Specs) challenges the Teachers Standards and
Practices Commission’s (TSPC or Commission) proposed suspension of Respondent’s teaching
license for 9O to 120 days pursuant to ORS 342.175 through 342.190 and the Standards for
Competent and Ethical Performance of Oregon Educators. On July 18, 2001 the Commission
issued a Notice of Opportunity for Hearing (Notice) setting forth the allegations which
Respondent denies.
The Notice proposed to suspend or revoke or impose other discipline under ORS 342.177
because the Commission had reason to believe that Specs violated OAR 584-0020-0040(4)(n)
. relating to Gross Neglect of Duty in seven instances by allegedly: (l) violating OAR 584-020-
0040(4)(d) on or about April 2, 1986 when he held CP, a male middle school student in a manner
that caused him physical pain; (2) violating OAR 584-020-0040(4)(d) on or about January 21,
1988 when he grabbed SR, a female middle school student, by the arm and twisted it behind her
back; (3) violating OAR 584-020-0040(4)(t) on or about January 21, I988 when he made
suggestive remarks to SR, a female middle school student, and RB, a male middle school student
insinuating that they were attracted to each other; (4) violating OAR 584-020-0040(4)(d) on or
about April l4, 1989 when he grabbed DW, a male middle school student, by the neck and tore
his shirt; (5) violating OAR 584-020-0005(5)l on or about October 4, 1993 when he told a male
middle school student in his geography class “If you don’t want anymore kids, leave your gun in
your holster,” (6) violating OAR 584-020-0040(4)(d) on or about October 23, 2000 when he
violated the personal space of MP2, a male middle school student, screamed and yelled and
bumped him with his chest; and (7) violating OAR 584-020-0040(4)(d) on or about December 6,
2000 when he grabbed J V, a male middle school student, by the arm, shook him and grabbed
him by the chin and head. Thereafter, Respondent requested a hearing challenging the proposed
disciplinary action.
1 At hearing, TSPC moved to amend the notice to allege that this occurrence violated OAR 584-020-0005(5), instead
of OAR 584-020-0040(4)(f), inasmuch as this was the numbering of the administrative rule which was in effect at
the time of the occurrence in 1983. Respondent did not object and TSPC‘s motion was granted.
Z In the Notice, MP was referred to as “MP” For the sake of consistency, MP will be referred to as MP in this
' proposed order.

In the Matter 0f Gerald Leroy Specs, Page 1 of 23

On September 11, 2001, the Commission referred this matter to the Hearing Officer

Panel for hearing. On March 11, 12 and 13, 2002, Administrative Law Judge Ella D. Johnson

conducted a hearing in Salem, Oregon. The record closed on March 18, 2002 following receipt

of the Comrriission’s submission of the 1993 version OAR Chapter 584, division 20 which was
in effect during the allcgcd violation. Assistant Attorney General Joe Gordon McKeevcr
represented the Commission. Testifying on behalf of the Commission were: Russell “Buz”

Tautfest, David Myton, Michelle Gaines, Donna Henry, Melissa Ivey, Kathleen Shelly, Kathleen

Long, Jim Wilson, JV, MS, SJ, LI, TH, DW, and BP.3 Attorney Aruna A. Masih represented

Respondent. Testifying on behalf of Respondent were: Joyce Parmeter, Karen Murray, Mike

Gaines, Dan Halter, Greg Hile, Pam Morris, JG and Gerald Specs.

After review and consideration of the entire record in this matter, Inow issue this

Proposed Order.

ISSUES

l) Whether Specs violated OAR 584-020-0040(4)(n) relating to Gross Neglect of Duty in seven
alleged instances as set forth below and in the Notice.

2) Whether the incident which occurred on or about April 2, 1986 wherein Specs allegedly held
CP, a male middle school student, in a manner that caused him physical pain, violated OAR

' 584-020-0040(4)(d).

3) Whether the incident which occurred on or about January 21, 1988 wherein Specs allegedly
grabbed SR, a female middle school student, by the arm and twisted it behind her back,
violated OAR 584-020-0040(4)(d).

4) Whether the incident which occurred on or about January 21, 1988 wherein Spees allegedly
made suggestive remarks to SR, a female middle school student, and RB, a male middle
school student insinuating that they were attracted to each other, violated OAR 584-020-
0040(4)(f).

5) Whether the incident which occurred on or about April l4, 1989 wherein Specs allegedly
grabbed DW, a male middle school student, by the neck and tore his shirt, violated OAR
584-020-0040(4)(d).

6) Whether the incident which occurred on or about October 4, 1993 wherein Specs allegedly
told a male middle school student in his geography class “If you don’t want any more kids,
leave your gun in your holster,” violated OAR 584-020e0005(5).

7) Whether the incident which occurred on or about October 23, 2000 wherein Specs allegedly

' 3 Students who are or were minors at the time of the incidents are identified by initials.

In the Matter of Gerald Leroy Spees, Page 2 of 23

violated the personal space of MP, a male middle school student, screamed and yelled and
' bumped him with his chest, violated OAR 584-020-0040(4)(d).

8) Whether the incident which occurred on or about December 6, 2000 wherein Specs allegedly
grabbed JV, a male middle school student, by the arm, shook him and grabbed him by the
chin and head, violated OAR 584-020-0040(4)(d).

9) If so, Whether Respondent’s violations warrant a suspension of 9O to 120 days.

EVIDENTIARY RULIN G

The Commission’s Exhibits l through 8, 10 through l6 and 18 through 22 were admitted
into the record without objection.4 The Respondent’s Exhibits A through N and P through V
were admitted into the record without objection.5

The Commission objected to Respondent’s Exhibit O, which is an incident report
authored by a teacher named Boyson concerning the behavior of one of the students involved in
the allegations against Respondent. The Commission argued that Respondent had not provided a
foundation for the exhibit. I delayed ruling on the Commission’s objection until the evidence had
been heard. Following my review of the record, I find that Exhibit O is admissible, inasmuch as
all documents, including hearsay, are admissible in administrative hearings if they are relevant,
without regard to whether they violate the Oregon Evidence Code (OEC), with the exception of

' the privileges authorized by law. ORS 183.450(1); OAR 137-003-0610.

Respondent objected to the Comrnission’s Exhibits 9, and 17 (Spees’ deposition).
Respondent argued that these exhibits were not relevant in that they involved incidents that were
not charged and their admission would be unduly prejudicial. In support of his objection,
Respondent cited ORS 342.177(1), which states in pertinent part:

The person against who the charge is made shall have the right to be
represented by counsel and to present evidence and argument. The
evidence must be confined to the charges.

With respect to Exhibit 9, the Commission argued that it was relevant as to whether
Specs engaged in a pattern of misconduct, which implicates the level of sanction. I find that the
document is relevant under OAR 584-020-00456 to the sanction imposed. I also find that
Respondent was not unduly prejudiced in that he was on notice that the Commission intended to
4 The Commission‘s Exhibits 22 and 23 were improperly marked and I have renumbered them as Exhibits 21 and
22.

5 The Commission objected to Respondent's Exhibits M and N but withdrew its objection provided that it was able
to cross-examine witnesses concerning the documents. Respondent called the authors of those documents.
Consequently Exhibits M and N are also admitted into the record without objection. ‘

. 5 See infra at page 21.
In the Matter of Gerald Leroy Spees, Page 3 0f23

' raise these prior incidents at the deposition and when he received a copy of the Commission’s
Exhibits and witness list prior to the hearing.

With respect to Respondent’s argument that ORS 342.177(1) prohibits admission of the
proffered evidence concerning uncharged prior incidents, the Commission argued that this
evidence was offered for the purpose of establishing a pattern of conduct that implicates the
sanction warranted. Respondent’s objection requires me to determine whether the language of
ORS 342. 177(1) is ambiguous. If the language of the statute is unambiguous, I apply Springfield
Education Assn v. School Dirt, 290 Or 217 (1980) to determine the analysis applied. Here, I find
that the statute is unambiguous and apply Springfield. In Springfield, the Court determined that
statutes could be divided into three classes: “exact” terms, where the terms have an exact
meaning which require only fact-finding; “inexact” terms where the terms have a less precise
meaning and require interpretation by the agency; and “delegative” terms, where the terms
express “non-completed legislation in which the agency is given delegative authority to
complete." Id. at 227-29.

ORS 342.177(1) states in relevant part that, in hearings under ORS 342.176, “[t]he
evidence must be confined to the charges.” I find this statute contains exact terms. The
Commission has applied this statute to find that it is allowed to offer evidence of instances not
charged to establish a pattern of conduct for the purpose of determining the sanction. I conclude
that the agency’s application of the statute to the facts of this case are reasonable in that this
evidence is not being offered as proof of other charges. Accordingly, I overrule Respondent’s

. objection to Exhibit 9.

With respect to Exhibit 17, Respondent objected to page 38 line 12 through page 42 line
14 and page 70 line 3 through page 73 line 11. Respondent argued these portions of the
deposition were not admissible because they relate to incidents that have not been formally
charged. The Commission argued that those portions of the deposition were relevant to show that
Respondent had been put on notice concerning his behavior and to establish a pattern of conduct
relevant to determining the sanction. I find that page 38 line 12 through page 42 line l4 and page
7O line 3 through page 73 line llare relevant in that regard and the Commission’s application of
ORS 342.1770) to the facts here is correct. Consequently, l deny Respondent’s objection in this
regard as well..

Respondent also objected t0 pages 91 through 100 of Exhibit 17, arguing that it violated
the psychotherapist-patient privilege. Ideferred ruling on Respondent’s objection. ORS
183.4500) requires agencies and those who conduct administrative hearings “to give effect to
the rules of privilege recognized by law.” ORS 40.230 (OEC 504) recognizes the
psychotherapist-patient privilege. OEC 504(3) states that the privilege t0 refuse to disclose and
prevent others from disclosing confidential communications may be claimed by the patient,
which in this case is Respondent. A privilege may be voluntarily waived by the holder of the
privilege. ORS 40.280 (OEC 511). Following review of page 91 line 25 through page 100 line of
the deposition, I find that Respondent voluntarily waived the privilege by answering the
Commission’s questions despite his counsel’s warnings. Moreover, even if he did not waive the
privilege, I find that the information contained in the deposition did not implicate any privileged

' communication. Consequently, I overrule Respondent‘s objection based on privilege and admit
In the Matter 0f Gerald Leroy Spees, Page 4 0f23

. page 91 line 25 through page 100 line 17 of Exhibit l7 into the record.
FINDINGS OF FACT

l) Spees has spent 25 years of his life teaching middle school students. He grew up in the
Philomath area and graduated from Philomath High School. He attended Oregon State
University (OSU) from 1967 to 1970. After serving in the US Army for 18 months, Spees
returned to OSU, completed a BS degree, and obtained a teaching license in 1976. His
teaching certificate allowed him to teach part-time langiage arts and part-time social studies.
Following graduation from OSU, he and his wife moved to Williamina, Oregon and he
became employed by the Williamina School District N0. 30] (the district). He taught seventh
and eighth grade social studies, math, and science at the Willamina Elementary School.7
Spees was a “catch-all" teacher for the first 17 or l8 years of teaching, meaning he was
assigned to teach any subject area that needed a teacher. He also coached girls‘ and boys"
sports. (Exs. 17-4 through 17-14; Spees’ testimony)

2) Spees is over six feet tall and weighs approximately 245 pounds. He was routinely assigned
to hall, bus, cafeteria, detention, and gym duty where he monitored the students’ behavior
and intervened in disciplinary problems. Most of the teachers were not assigned to these
duties. By routinely assigning him these duties, the school district placed him in the position
of being the primary disciplinan'an. (Spees’ testimony).

3) Following his first year of teaching, Spees was rated as an effective teacher and an asset to

. the elementary school staff by Principal Ted Busselle. (Ex. E).

4) During the 1979-80 school year, Spees was employed in the Willamina Junior High School8
as a social studies teacher. In Spees' performance evaluation for the school year, WJHS
Principal Gene Metzzer noted his concern that Specs needed to modify his classroom
disciplinary techniques and that he would expect “ a more personalized, private mode of
disciplinary control techniques” in the next school year. (Ex. 1).

5) In 1982, the district adopted a Student Discipline policy. The policy stated that student
discipline was based upon a guidance-counseling philosophy designed to produce behavioral
changes with three major objectives centered on teaching the fundamental concepts for
living, including “[u]nderstanding and respect for the rights, dignity and safety of all
individuals." The policy was revised in 1989. (Ex. C).

6) In Specs’ performance evaluation for the 1982-83 school year, the WJHS principal noted he
needed to avoid making inappropriate statements or remarks in the classroom. (Exs. 2, E).

7 The elementary school subsequently burned down. In approximately 1982, the middle school moved into its own

side of a building it shared with the elementary school. (Exs. 17-8, 17-13).

. 8 The Willamina Junior High School subsequently became the Willamina Middle School.

In the Matter of Gerald Leroy Spees, Page 5 of 23

' 7) During the 1984-85 school year, Spees taught language arts and social studies. In his
performance evaluation response, Spees stated that his view on the use of physical force
differed from that of the principal’s and noted that neither method fit all students but that he
would do as instructed. (Exs. 3, E).

8) In 1984, Dr. Kathleen Shelly, became principal of Willamina Middle School (WMS). In
2000, Dr. Kathleen Long became the principal at WMS. (Exs. 17-32, E; testimony of Dr.
Shelly and Dr. Long).

9) During the period of time that Dr. Long served as principal, John Wilson served as the
“TOSA” or teacher on special assignment. As the TOSA, he was responsible for scheduling.
Several parents objected to their children being placed in Specs’ class. Up until Dr. Long
became principal, the complaints were handled by moving the objecting parent’s children to
another class. (Ex. U; testimony of Dr. Long).

10) Some parents had Spees as a teacher when they attended school in Willamina and they were
concerned about him telling dirty jokes, making sexual innuendoes, and making
inappropriate racial comments. One parent reported that he had thrown a stapler in class.
Other parents thought Specs was a very good teacher who provided their children with the
skills they needed to be successful in high school. (Testimony of Dr. Long, Karen Murray).

ll) On January 9, 1989, the district adopted a policy on Hazing/Sexual Harassment. (Ex. A). The
policy defined sexual harassment as “unwelcome conduct, either sexual or non-sexual, that is

‘ directed toward a person because of that person‘s gender.” The policy stated that prohibited
sexual harassment occurs when “unwelcome sexual or other gender based conduct interferes
with a student’s performance or creates an intimidating, hostile or offensive school
environment,” and noted that the conduct could be by a teacher, student, administrator or
school staff. The policy also stated that sexual harassment included “[rn1aking sexually
suggestive remarks, gestures, or jokes, or remarks of a sexual nature about the victim’s
appearance." A formal complaint process was part of the policy. The policy was revised in
1993. (Ex. B).

12) The district adopted a Corporal Punishment policy in 1990, Which was defined as “willful
infliction of, or willfully causing the infliction of, physical pain." The policy prohibited all
corporal punishment and the use of physical force to discipline or punish a student but
authorized staff members to use physical force “when, in his or her professional judgment,
the physical force is necessary to prevent a student from harming self, others or doing harm
to school district property.” (Ex. D).

l3) WMS had a discipline/detention system in place during the period when Dr. Long was
principal. If students received a certain number of detention slips, they were placed on a
behavior contract, which had three levels with different consequences. A student could be
placed in the ABLE class9 for a period of time, receive in-school suspension, home

. 9 The ABLE class was a class for students with academic and/or behavioral problems.

In the Matter 0f Gerald Leroy Spees, Page 6 of 23

. suspension or expulsion. (Ex. S; testimony of Dr. Long).

l4) In 1990, Willamina School District Superintendent Gerry Elstun investigated a complaint by
a parent that Specs used excessive force and choked FS as he broke up a fight between FS
and another middle school student. The superintendent concluded that the facts as reported
by the students were inconsistent and that disciplinary action was, therefore, not warranted.
The superintendent cautioned Specs that his history and reputation made him more
susceptible to these allegations than other staff and that Specs must be more cognizant of
why, when, where and how he touched students. (Ex. 9).

15) In Specs‘ teacher evaluation for 1990, Dr. Shelly noted that she appreciated “his efforts to
maintain discipline during lunch while allowing students to enjoy this time together. He and
the other noon supervisors are to be commended for doing a difficult job well.” (Ex. E).

16) In Specs’ 1994 teacher evaluation, Principal Russell “Buz” Tautfest stated that “Jerry needs
to work [on] using good professional judgment when talking about controversial issues. He
needs not to give his own personal views on subjects that may offend others, [i]f it is not
appropriate to the age of the students.” (Ex. E).

17) Close to the date of the prom in 2000, LI was in Specs social studies class. Specs made
inappropriate comments about “how to get girls drunk.” He called LI and some other female
students “beautiful.” She complained to her mother. LI asked Specs to stop calling her
“beautiful.” He continued to do so. Specs later told the class about his testicular cancer

. condition when they were discussing diseases. She complained to her mom again and her
mom talked to the interim principal. She later talked to Dr. Long about Specs inappropriate
comments. (Testimony of LI and Melissa Ivey).

18) In June 1996 and June 2001, Specs received Distinguished Service awards from the school
district. (Ex. F).

19) Specs used a disciplinary system, which was developed by the entire staff wherein he would
write a student’s name on the board for disruptive behavior as notice to the student that the
behavior needed to be discontinued. Thereafter, Specs would place a check mark next to the
student’s name if the student continued to disrupt class and directed the student to write a
sentence apologizing for the behavior. A second check next to the student’s narnc resulted in
an automatic detention slip, which was to be signed by the student. WMS’s disciplinary
system assigned a number of points to each type of misbehavior. After the student was given
a certain number of points within a specified period, the student was placed on a behavior
contract with possible placement in the ABLE class. WMS also used a Discipline Matrix
governing suspension, restitution, and possible police contact for a variety of offenses based
on the number of referrals. (Exs. l7-24, 19, 20; testimony of Spees and Pam Morris).

20) Despite complaints about Specs’ disciplinary style, WMS continued to assign him to duties,
such as monitoring the hall, cafeteria, and gym for disciplinary problems. He was also
assigned to oversee students sent to detention for disciplinary problems during the lunch

. hour. At some point, Specs requested not to be assigned to these duties and was not assigned

In the Matter of Gerald Leroy Spees, Page 7 0f23

that school year. The next school year, the school continued to assign him to those duties.
. (Exs. 17-28 through 17-32, l7-57, 17-92 , 17-93; testimony of Specs and Pam Morris).

April 2, 1986 Incident with CP

21) On April 2, 1986 during his fifth period class, CP was noisy and Specs put CP’s name on the
board. CP then received a check mark for talking. CP stated that he would not accept the
resulting detention and refused to sign the detention slip. Specs place another check by CP’s
name. At the end of the class, CP walked out of class leaving the detention slip and a book at
his desk. Specs put his hand on CP’s shoulder to “reassure” him and guided him back to the
classroom. CP refused to pick up his detention slip and book. Specs moved his hand from
CP’s shoulder to the nape of CP’s neck and raised his voice, directing CP to pick the items
up. CP ducked under Specs hand. CP yelled to the incoming sixth period class that they were
witnesses to Specs choking him. CP later told his father that Specs had choked him. CP failed
to show up for detention and Specs wrote a referral form to the office with a description of
the incident. Specs did not choke CP and cause CP physical pain. (Exs. 6, 17-26 through 17-
32; testimony of Specs and Dr. Shelly).

22) The OEA contract required the administration to hear the teachers’ side of the story before
taking action on any complaint. Dr. Shelly refused to talk to Specs about the incident before
taking disciplinary action. Specs did not file a grievance against Dr. Shelly for her refusal to
meet with him.10 . (Exs. 5, 17-35 through 17-40; testimony of Specs, Pam Morris and BP).

. 23) On April 7, 1986, Specs received a letter of reprimand from Dr. Shelly concerning the
incident involving CP. The letter stated that Specs had caused physical pain to the student
when the student refused to comply with Specs’ directions. The letter also referenced their
discussion about a prior incident involving BP, a male middle school student, which occurred
on February 25, 1986. BP was teasing JD. JD was very tall at five feet eight inches. BP
jumped up like he was going to hit JD and Specs held BP’s arms in a bear hug below the rib
cage and got between BP and JD. While Specs was holding his arms, JD slapped BP. (Id.)

24) Dr. Shelly stated in her letter of reprimand that “[p]hysical and/or mental mistreatment of any
student by you will not be tolerated in the future. * * * In the future, you are to refrain from
touching any student except to protect yourself or another person from physical harm.” Specs
refused to sign that he had received the reprimand. (Exs. 5; testimony of Specs and Dr.
Shelly).

25) On April 8, 1986, Specs wrote a letter in response to the letter of reprimand denying that he
had caused CP physical pain. He complained that, prior to writing the letter, Dr. Shelly
interviewed students but did not meet with him to hear his side of the story. Specs stated that
he had only put his hand on CP’s shoulder reassuringly and then rnoved it up to the nape of

'0 Pam Morris, the OEA representative for the school, stated that it was up to the teacher whether to pursue a

grievance and that Specs had six or more grievances against the district but decided not to grieve the letter of

. reprimand. (Pam Morris‘ testimony).

In the Matter of Gerald Leroy Spees, Page 8 0f23

the neck when CP ducked from under his hand. Specs also stated that CP had rubbed and

. twisted his own neck to make it look red. He complained that Dr. Shelly did not support him
when parents voiced concerns about their children being in his class. (Exs. 6, H; Specs’
testimony).

Januw 21, 1988 incidents with SB and RB

26) On January 21, 1988, in Specs’ fourth period geography class, two students, SB, a female
seventh grade middle school student, and RB, a male seventh grade middle school student,
were teasing each other. RB, who had a history of disruptive behavior both at school and on
the school bus, already had his name on the board with one check mark. To avoid a second
check mark which would have possibly resulted in a three-day suspension, RB begged Specs
to allow him to do push-ups instead. Specs at first declined to allow him to do push ups
because it was his understanding that push-ups were no longer allowed as a disciplinary
sanction. RB then asked if he could just assume the push up position and hold it. Specs
agreed. While RB was holding the push up position, his face became red and another student
asked why his face was so red. Specs jokingly said that it was because SB liked RB. SB was
a student who had severe mood changes and was easily frustrated. SB kicked Specs and
when she tried to kick him a second time, he blocked her kick. When SB tried to hit Specs,
he grabbed her wrist. He did not twist her arm behind her back. He told her to stop and she
ran out of the classroom. (Exs. 7, 17-43 through l7-51, K; testimony of Specs and Pam
Morris).

' 27) Specs later explained in a meeting with Dr. Shelly, OEA representative Pam Morris and
Willamina School District Superintendent Mike Wsiaki that he had merely grabbed her arm.
Specs also explained that he sometimes made cements about the students’ relationships to
test the seriousness of the conflict and to possibly defuse a tense situation when two students
were squabbling. (Exs. 7, 17-52).

28) In a letter of reprimand dated January 25, 1988, Dr. Shelly concluded that Specs’ cements
were inappropriate coming from a teacher because middle school students were very
sensitive to personal comments. Dr. Shelly further concluded that, although it was
inappropriate for SB to kick him, his remarks contributed to SB’s inappropriate behavior. Dr.
Shelly noted that Specs was “unnecessarily rough” in responding to SB’s actions. She
warned him that in the future, if he made inappropriate personal comments to students, used
inappropriate physical force with them or required them to do push ups or “burpces”ll as a
form of discipline, he would be subject to disciplinary action which could include
termination of his employment as a teacher at WMS. She later clarified that she did not feel
that it would be a problem for him to compliment students on their appearance or on
appropriate behaviors. Specs signed the reprimand letterlz. (Exs. 7, I; testimony of Specs and

H Pam Morris, the OEA representative for the school, credibly testificd that other teachers were not notified of the

change in policy and continued to use push ups as a form of discipline.

11 Specs testificd that he signed the letter of reprimand because he had learned mat a refusal to do so constituted

. insubordination, which could result in his immediate dismissal. By signing the letter, he acknowledged that he

received the letter, not that he agreed with it.

In the Matter 0f Gerald Leroy Specs, Page 9 of 23

. Dr. Shelly).
29) By letter dated January 26, 1988, Specs responded to Dr. Shelly’s reprimand. He denied that
he had twisted SB’s arm behind her back. He stated that he only defended himself by
restraining her from striking him. He stated his belief was that he was authorized to use
physical force to protect other students and himself. (Ex. I).
April 14, 1989 incident with DW ,
30) On April 14, 1989, Specs was on duty in the gym during the lunch hour when DW, a male
seventh grade middle school student, attempted to make a basket in a basketball game he was
playing with other students. DW was just a little over five feet tall and weighed about 120
pounds. As he came down from his lay up, DW fell into Specs who was in the out-of bound
area approximately five feet behind the basket. Specs saw something coming at him out from
the corner of his eyc. DW’s arm was raised in what looked like a karate position. Specs
defended himself by deflecting DW’s body away from him and DW’s weight and motion
carried him off to the side. As a result of the impact, DW’s neck was scratched above the
collar and below the chin and Specs’ hand accidentally caught DW’s shirt, ripped it and a
button popped off. Specs thought DW had intentionally run into him and ordered him out of
the gym. DW told Specs that he would “get him for this." DW and TH, another middle
school student, subsequently reported the incident to Dr. Shelly, claiming that Specs had
choked DW. (Exs. 8, 17-56 through 17-62; testimony of Specs, DW and TH).
' 31) Specs was very familiar with DW. DW had a history of doing fake punches and karate-like
moves to intimidate teachers and other students. DW wanted to be the center of attention.
Karen Murray who ran the ABLE class for student’s with academic and/or behavioral
problems found DW to be a challenging student who became loud and combative when hc
did not get his own way. (Ex. 17-59; testimony of Specs and Karen Murray).
32) After the incident, Specs lectured DW’s language arts class, which he taught, about the
students’ responsibility to control the atmosphere of the school in the context of a discussion
of the book “Call of the Wild.” Specs related the topic to the incident with DW. (Ex. 17-61;
Specs’ testimony). _ 1
33) Willamina High School (WHS) Principal Yates investigated the incident because Principal j
Shelly was away from the building. Upon investigation of the incident, TH confirmed DW’s i
story that Spces grabbed DW by the neck and tore his shirt and that Specs looked angry. JP, ‘
another middle school student, confirmed Specs story that DW made aggressive moves .
toward Specs but did not think that DW was going to hit him. Thereafter, Specs met with
WHS principal Yates and DW’s grandmother. DW’s grandmother seemed satisfied with
Specs explanation, but asked that DW and his brother be removed from Specs’ class. Yates
told DW that the incident could not have happened the way he described and that Specs did
not engage in improper conduct but that he had “over-reacted.” (Ex. 8; testimony of Specs and
Pam Morris).
In the Matter 0f Gerald Leroy Spees, Page 10 0f23

. 34) Dan Halter (Halter), a physical education (PE) teacher at WMS, provided information to the
administration that following the April 4, 1989 incident, DW and another student were in the
lunch room rubbing and pinching DW’s neck to make it look worse. Halter also observed
DW in his PE class over the next two days and recorded the number of times DW initiated
physical contact with him and other students. In the two 39 minute periods, DW initiated
physical contact nine times with other students and twice with Halter. Halter characterized
DW as “very aggressive.” (EX. M; Halter’s testimony).

35) Greg Hilc (Hilc), also a teacher at WMS and DW’s neighbor, reported to Dr. Shelly that on
many occasions, DW had made aggressive and threatening gestures at him which included
partially swinging his closed fist at Hilc or intentionally running into him. On several
occasions, DW had also knocked Hile off his balance and into others. Hilc had warned DW
that, if he continued to behave in that manner, Hilc did have the right to defend himself. Hilc
further reported that DW always threatened retaliation from his parents when confronted with
his own misbehavior. Hilc opined that, given DW’s behavior in the April 4, 1989 incident,
Specs acted in a reasonable manner. (Ex. N; Hile’s testimony).

36) Another teacher reported an incident with DW and TH on April 6, 1989, where the students
intentionally obstructed the crosswalk by stopping in the middle of the crosswalk to tic their
shoes and then took baby steps through the crosswalk. This was the second time DW and TH
had done this while the teacher was pulling out of the staff parking lot. The teacher raised the
concern that the students’ actions were harassing and reflected an attitude of intentionally

. trying to irritate or bait the teacher. (Ex. O).

37) In a memorandum dated April 12, 1989 from Dr. Shelly to Specs, Dr. Shelly noted that
another teacher had subsequently seen DW and other students in the lunchroom rubbing
DW’s neck to make it look worse. She acknowledged that DW did make an aggressive
feinting move toward Specs and had not been completely honest in describing the incident.
However, she concluded that Specs had “overrcacted” and directed Specs to use physical
restraint only in a situation where physical harm or damage to school property may otherwise
occur. Where physical restraint was needed, she directed him to avoid touching the student in
the area of the student’s head or neck. Dr. Shelley warned Specs that failure to follow this
directive would result in disciplinary action, including termination of his employment. (Ex.
8).

October 4, 1993 incident

38) On October 4, 1993, Specs was discussing the overpopulation of India and the economics of
having a large family in his geography class. 13 A student asked how can you prevent having
more children. Specs responded, “leave your gun in the holster.” His comment was not
directed to any one student. (Exs. 10, 17-63 through 17-66; testimony of Specs and Russell

'3 Russell “Buz” Tatufcast (Tatufeast), who was the principal at that time, testificd that Specs made the comment in

. his “social studies class" but that and Tatufeast could not remember what the context of the comment was.

In the Matter of Gerald Leroy Specs, Page 11 of 23

. “Buz” Tatufcast).

39) WMS principal Russell “Buz” Tatufcast overheard a male middle school student who was
offended complaining about the comment. When he caught Spces in the hall, he asked about
the comment. Specs did not deny making the comment but later acknowledged that there was
a better way to promote abstinence. The principal had also received complaints about other
inappropriate comments by Specs about the students’ appearance and his own philosophy
about life. Compared to other teachers, more parents asked for their children not to be
assigned to Specs’ class. (Id.).

40) On November 19, 1993, the principal issued a written reprimand to Specs for his poor
judgment in making the comment to his geography class. The principal noted that middle
students often took things too literally and often believe a general comment is directed to
them. In this case, the principal stated that Specs’ comment was interpreted as offensive by
this particular male student, whose brother was a senior in high school with a new baby. The
principal cautioned Specs that further incidents of a similar nature should not occur and if
they did, further disciplinary action may bc taken. (Ex. 10).

October 23, 2000 incident with MP

41) On October 23, 2000 during the high school’s homecoming noise parade which the middle
school and elementary students were permitted to watch, the middle school students were
unusually rowdy and ill behaved. Specs had just addressed a rock-throwing incident when

' MP, a male middle school student, approached Specs and asked him if he wanted to fight.
MP took a couple of swings at Specs. Specs continued walking and told him to “knock it
off.” Specs thought that MP was trying to annoy him. The student took a third swing at Specs
and almost hit him. Specs was red faced and pointed his finger in the student’s face in an
angry manner. He stood inches away from MP, “chewed” him out, and bumped him with his
chest while MP was trying to back away. Because of the noise created by the noise parade
and Specs’ desire to make sure that MP knew he was serious,l4 Specs was yelling at the
student. Because of the noise, the other teachers observing the incident could not hear what
was said. (Exs. 11, 17-75 through 17-81; testimony of Specs, Donna Henry, Dr. Long).

42) The incident was witnessed by special education teacher Nancy Hayden and school counselor
Donna Henry. They were 15 feet away from Specs and MP when the incident occurred and
nothing was blocking their view. They reported the incident to WMS principal Kathleen
Long. 5 Dr. Long talked to MP one week later and he indicated that the incident was not “a
big deal.” Nonetheless, Dr. Long told Specs that it was inappropriate for hirn to lose his
temper and shout at a student in that manner. Specs cited personal problems and she offered
him counseling. Dr. Long cautioned him not to compromise his professional demeanor by

N Specs also testificd that he had learned in the army as a military policeman that his voice was his best “weapon.”

‘5 Specs had previously spoken to Dr. Long about Hayden after Dr. Long suggested that he meet with her about his

special education students. He told Dr. Long that he did not trust her because she had previously filed a complaint

. against another teacher. (Spces‘ testimony).

In the Matter 0f Gerald Leroy Specs, Page 12 of 23

shouting or advancing on a student. (Ex. ll; testimony of Specs, Donna Henry and Dr.
' Long).

December 6, 2000 incident with JV

43) On December 6, 2000, several students had been excused early by the sixth grade teacher and
were in the hall when Specs was leaving his classroom, including IV, a male sixth grade
student at WMS, and MS, a female sixth grade middle school student. The last period of the
day was ending. There were three female students standing in the open door of the sixth
grade class. Specs asked JV and MS why they were in the hall because the bell dismissing
them from class had not rung. He also asked them whether they had a hall pass. Specs
decided to stay in the area to ensure that there were no problems.16 When MS asked JV who
Specs was, he replied that Specs was a teacher and that he was okay because they were just
talking about Jay Leno’s chin. MS and JV started making fun of each other. Specs saw a
behavior problem in the making and said “you don’t say that" and grabbed JV’s chin and
head and bent his head back. LI who was observing the incident from 10 to 12 feet away,
thought Specs appeared to be angry. JV grabbed Specs’ finger that was holding his chin and
pulled it back because Specs was hurting him. This caused Specs intense pain. Specs yelled
at J V to stop and tried to extricate his finger by holding JV in a bear hug and pulling his
finger away. After Spees cxtricatcd his finger, he let go of JV and JV ran away. JV’s mother
picked him up from school right after the incident. JV was upset and she could see red marks
on his face. He told her that Specs had grabbed his chin. (Exs. l5, 17-81 through 91;

. testimony of JV, MS, SJ, Michelle Gaines, Specs and Dr. Long).

44) JV had a history of being disruptive in the classroom and had been placed in the ABLE class
for students with academic and/or behavioral problems. He was also placed on three behavior
contracts during the year due to excessive detention slips. A study done by Jim Wilson
indicated that five to seven percent of the students were responsible for 87 percent of the
detentions. J V was in the five to seven percent group. JV had never lied or made false
accusations against teachers and took responsibility for his own behavior. In January 2001,
JV successfully completed the school’s four-week course in anger management taught by
Donna Henry. (Testimony of LI, Karen Murray, Michelle Gaines Joyce Parrneter and Donna
Henry).

45) Specs did not file a disciplinary referral concerning JV’s conduct. JV’s mother filed a
complaint against Specs. Dr. Long talked to JV and he demonstrated how Specs had grabbed
his chin. Without meeting with Specs to hear his side of the story, Dr. Long filed a child
abuse reportl7 with the Yamhill County Sheriffs Office at the direction of the
superintendent. Three female middle school students, LI, SJ and MS, were named as
witnesses in the investigation by the sheriffs office. Specs also asked Dr. Long to talk to

'6 Specs testified that he was also covering for Mr. Sears, a new sixth grade teacher. Specs understood from Dr.

Long that after the first month, sixth grade students were not to be let out early to go to their lockers. (Spees'

testimony).

. ‘7 The charge was actually for "harassment." (Ex. 15).
l

In the Matter of Gerald Leroy Specs, Page I3 0f23

another student, JG, but JG told Dr. Long that he did not remember the incident. 15 Dr. Long
' thought Specs was evasive. (Exs. 12, 13, 15, 17-85; testimony of Michelle Gaines, Specs and
Dr. Long).

46) Specs told Dr. Long that he had “chucked” JV under his chin and otherwise did not touch
him but that JV had grabbed Specs’ finger and bent it back. ‘9 Specs stated that he had used
only enough force to free himself. On December 8, 2000, Specs was placed on paid
administrative leave while the matter was investigated. He was referred to counseling. Spees
was allowed to return to his teaching position on January 8, 2001. (Exs. 12, 13, 14, O).

47) On January 10, 2001, Dr. Long issued a written reprimand to Specs for his conduct on
December 6, 2000 and warned him that further incidents of this kind would result in
disciplinary action, including dismissal. Dr. Long directed Specs to refrain from initiating
physical contact with students in responding to student misbehavior, to follow established
discipline procedures, to participate in a series of counseling sessions addressing anger
management, and to refrain from discussing this incident with students. Spees appealed the
reprimand and the matter is still pending. Specs subsequently talked to other teachers in the
lunchroom about the incident. When Dr. Long found out, she “chewed” Specs out. (Ex. 12;
testimony of Specs’ and Mike Gaines).

48) The Yamhill District Attorney (DA) declined to prosecute Specs or JV for the incident
because of the conflicting evidence, which would have made it impossible to get a conviction
for child abuse or harassment. The DA noted JV had a strong self-defense claim. Despite the

' district attorney’s decision, Dr. Long told Specs that she thought he was still “guilty.” Dr.
Long did not read his file until late in the process. (Ex. R; testimony of Mike Gaines and Dr.
. Long).

49) Specs completed all five counseling sessions. 1n March 2001, Specs took sick leave for his
high blood pressure on the advice of his doctor and has not returned to work since then. (Ex.
17-21; Specs’ testimony).

50) After the incident with J V, Joyce Parmeter talked to Dr. Long and asked her if teachers
should refrain from touching students. Dr. Long said teachers should continue to touch
students because “they need it.” (Joyce Parameter’s testimony).

“3 JG testificd that no one talked to him after the incident. However, 1 do not find JG to be an accurate historian.

Moreover, even ifl did, I would not find his testimony persuasive. He testificd that JV initiated the physical contact

and that he did not see Specs’ hands on JV during the incident. However, his testimony indicates that he was present

only for the last part of the incident after the bell rang. Additionally, 1 find his testimony is not credible based on his
demeanor at hearing and because he offered to help Specs only after he saw Specs “down in the dumps" and Specs
told him that it was his last day at work due to the incident with IV. (JG's testimony).

l9 This is contrary to Specs’ testimony at hearing that he only lightly touched JV‘s chin. Ido not find Specs’

testimony persuasive because it is contrary to Dr. Long’s credible testimony concerning Specs’ statements to her and

' the eye witness testimony of JV, MS, SJ.
In the Matter of Gerald Leroy Specs, Page 14 0f23

' CONCLUSIONS 0F LAW

1) Specs violated OAR 584~0020-0040(4)(n) relating to Gross Neglect of Duty in three of the
instances set forth in the Notice.

2) During the incident which occurred on or about April 2, 1986, Specs put his hand on the
shoulder of CP, a male middle school student, and moved it up to the nape of his neck but did
not cause physical pain, which did not violate OAR 584-020-0040(4)(d).

3) During the incident which occurred on or about January 21, 1988, Specs acted in self-defense
when he restrained thc arm of SR, a female middle school student, from hitting him, which
did not violate OAR 584-020-0040(4)(d).

4) During the incident which occurred on or about January 21, 1988, Specs made inappropriate
remarks to SR, a female middle school student, and RB, a male middle school student,
stating that SR was attracted to RB, violating OAR 584-020-0040(4)(f).

5) During the incident which occurred on or about April 14, 1989, Specs acted in self-defense
when he deflected DW, a male middle school student, from falling into him while he was on
gym duty and accidentally scratched DW’s neck and tore his shirt, which did not violate
OAR 584-020-0040(4)(d).

6) During the incident, which occurred on or about October 4, 1993, Specs inappropriately

. made the offensive comment in his geography class that thc way to avoid having more
children was to “leave your gun in your holster," which did not violate OAR 584-020-
0005(5). l

7) During the incident that occurred on or about October 23, 2000, Specs violated the personal
space of MP, screamed and bumped him with his chest, violating OAR 584-020-0040(4)(d).

8) During the incident that occurred on or about December 6, 2000, Specs grabbed JV, a male
middle school student, by the chin and head, violating OAR 584-020-0040(4)(d).

9) Specs’ violations warrant a suspension of 90 days.

OPINION
Respondent challenges both his alleged violations of OAR 584-0020-0040(4)(n), 584-
020-0040(4)(d), 584-020-0040(4)(i), and 584-020-0005(5) and the proposed suspension of 90 to

120 days. In that regard, the Commission has the burden of proving these allegations and that the

proposed sanction is warranted by a preponderance of the evidence. See ORS 183.450(2) and (5);

Reguero v. Teachers Standards and Practices Commission, 312 Or 402, 418 (1991) (burden is

on the 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).
In the Matter of Gerald Leroy Spees, Page I5 of 23

' Alleged violations of OAR 584-020-00401411nl
OAR 584-020-0040(4)(n) states in relevant pan:
(4) 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:
****
(n) Substantial deviation from professional standards set forth in OAR
584-020-0010 through 584-020-0030[.]
As set forth below, I find that Specs violated the professional standards in three instances.
Alleged violations of 584-020-0040g4yd).
OAR 584-020-0040(4)(d) states in relevant part:
4) 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:
* * * >l<
(d) Unreasonable physical force against students, fellow employees, or
visitors to the school, except as permitted under ORS 339.250[.]
(Emphasis added).
ORS 339.250 states in relevant part that:
(2) Pursuant to the written policies of a district school board, an
individual who is a teacher, administrator, school employee or school
volunteer may use reasonable physical force upon a student when and
to the extent the individual reasonably believes it necessary to maintain
order in the school or classroom or at a school activity or event,
whether or not it is held on school property. The district school board
shall adopt written policies to implement this subsection and shall
inform such individuals of the existence and content of these policies.
(Emphasis added).
In accordance with ORS 339.250, the district adopted a written policy on
corporal punishment to implement the statute. The policy defined “corporal
. punishment” to include “willful infliction of, or willfully causing the infliction of,
In the Matter of Gerald Leroy Spees, Page I6 of 23

physical pain." The policy prohibited all corporal punishment and the use of

. physical force to discipline or punish a student but authorized staff members to use
physical force “when, in his or her professional judgment, the physical force is
necessary to prevent a student from harming self, others or doing harm to school
district property." Reading and interpreting the statute, rule and district policy
together, I find that teachers are prohibited from using physical force which
willfully inflicts or willfully causes physical pain, and is not necessary to maintain
order in the school or classroom, prevent a student from banning self, others 0r
doing harm to school district property.

With respect to the incident which occurred on or about April 2, 1986, J find that TSPC
failed to met its burden of proving that Specs violated OAR 584-020-0040(4)(d) because there is
no credible evidence that Specs willfully caused CP physical pain. CP did not testify at the
hearing and the only testimony other than the testimony of Specs concerning the incident was
that of Dr. Shelly, who was not present during the incident. Dr. Shelly testified that when she
was the principal, Specs mishandled a student disciplinary problem because he caused physical
pain in order to force a student to follow his directions. She stated that standard operating
procedure was to talk to the student and teacher before issuing a written reprimand, However,
she did not have a specific recollection about talking to Specs in this regard but thought she
remembered that Specs stated that his actions were justified.

I do not find Dr. Shelly’s testimony in that regard to be persuasive because Dr. Shelly’s
investigation of the incident was incomplete in that she refused to speak to Specs about what had

. occurred. Pam Morris, the OEA representative, corroborated Specs’ testimony that Dr. Shelly
refused to meet with them. Moreover, cvcn though the written reprimand stated that Specs
caused physical pain to CP, there was no evidence that Specs intentionally used physical force 0r
inflicted or caused pain to CP. Neither Dr. Shelly nor any other witness testificd that Dr. Shelly
had spoken to CP or his parents or how she knew that Specs intentionally caused CP physical
pain. Additionally, it also appears that Dr. Shelly formed her conclusion of what occurred in the
incident with CP based in part on a prior incident involving BP where Specs held BP’s arms
while JD slapped him, because she cited that incident in her letter.

On the other hand, Specs credibly testified that he called CP back to pick up his detention
slip and book as CP was walking out the door of the classroom and that he put his hand on CP‘s
shoulder to reassure him and guided him back to the classroom. After CP refused to pick up his
detention slip and book, Specs moved his hand from CP’s shoulder to the nape of his neck and
raised his voice, directing CP to pick the items up. CP ducked under Specs hand and ran away
after accusing Specs of choking him. Consequently, I conclude that this allegation is not
supported by the evidence.

With respect to the incident which occurred on or about January 21, 1988 involving SR, I
also find that TSPC failed to meet its burden of proving that Specs grabbed SR by the arm and
twisted her arm behind her back, violating OAR 584-020-0040(4)(d). Neither SR nor RB or any
other student present during the incident testificd. The only testimony TSPC offered concerning
the incident came from Dr. Shelly who was not present during the incident. Dr. Shelly testificd

. that SR was an “average kid” not prone to mood swings. However, the documentary evidence
In the Matter 0f Gerald Leroy Spees, Page I 7 0f23

clearly establishes that SR was a special education student who was prone to severe mood

' swings and anger. Additionally, Dr. Shelly testificd that at a staff meeting she told all of the
teachers that push ups and “burpces” were no longer to be used as a fonn of discipline when the
record establishes that the other teachers were not told and continued to use them as forms of
discipline. Because of these inaccuracies in her testimony, I do not find Dr. Shelly’s testimony
persuasive because they demonstrate that she is not a accurate historian.

Furthermore, Specs credibly testified that SR tried to hit him and that he restrained SR’s
arm in self-defense. In addition, Specs consistently stated after the incident and at hearing that he
only grabbed her arm and did not twist it behind her back. I find that Specs did not twist SR’s
arm behind her back because he would have no logical reason for doing so. Consequently, I
conclude that Specs’ use of physical forcc to restrain SR from hitting him was not an
unreasonable or prohibited use of force because he did so in self-defense to prevent harm to
himself.

I likewise find Specs‘ acted in self-defense on April l4, 1989 by deflecting DW from
falling into him while on gym duty. I further find that the resulting scratched neck and torn shirt
were unintentional and accidental. TSPC called both DW and TH as witnesses at the hearing.
DW testificd that as he was going down from his lay up, Specs grabbed him by the neck and shirt
and “flung” him to the side. DW admitted the incident happened very quickly. Hc denied making
an aggressive move toward Specs. He also denied that he had a history of making physical
contact with teachers and other students as reported by his PE teacher. He further denied the

. incident involving Hilc wherein DW used threatening and intimidating gestures and feigned
hitting Mr. Hilc. DW could not recall the incident where he and TH harassed another teacher,
Mr. Boyson. He also could not recall he and TH rubbing the scratches on his neck to make them
look worse. Additionally, TH, who was present in the gym, also testificd that Specs grabbed DW
across the neck and flung him to the side. However, TH conceded that when DW came down
from his lay up, DW had his arm was up and someone could have interpreted it as a karate move.
I do not find the testimony of DW to be persuasive. WHS principal Yates who investigated the
incident, discounted DW’s statements because he found that DW’s version of the incident could
not have happened the way he stated. Even Dr. Shelly acknowledged that DW did make an
aggressive move toward Specs and had not been completely honest in describing the incident.

The evidence establishes that DW was physically aggressive and had a history of doing
fake punches and karate-like moves to intimidate and irritate other students and teachers. When
DW came down from his lay up after attempting to make a basket, Specs credibly testificd that
he saw something coming at him out from the corner of his eye. Specs defended himself by
deflecting DW’s body away from him and DW’s weight and motion carried him off to the side.
As a result of the impact, DW’s neck was accidentally scratched above the collar and below the
chin and Specs’ hand accidentally caught DW’s shirt, ripped it and a button popped off. l find
that while Specs may have overreacted to some degree, he was entitled to defend himself under
the district’s policy. Consequently, I conclude that TSPC has failed to meet its burden with
respect to this allegation.

. With respect to the incident which occurred on or about October 23, 2000, I find that
In the Matter 0f Gerald Leroy Specs, Page 18 0f23

Specs’ yelling and bumping and violating of the personal space of MP did violated OAR 584-

' 020-0040(4)(d) because the physical force used was not authorized by the district’s policy. MP
did not testify at hearing due to a death in his family. However, the eyewitness testimony of
Nancy Hayden (Hayden) and Donna Henry (Henry) establish that the physical force used by
Specs in bumping his chest against MP and screaming and violating the student’s personal space
in an intimidating manner was willful, unjustified and unauthorized. Moreover, Specs’ actions
were clearly inappropriate even through MP may have taken feigned swings at him. Specs did
not testify or argue that he was defending himself. He testificd that he yelled and poked his
finger at MP to make sure that the student knew he was serious.

Consequently, I conclude TSPC met its burden of proving that Specs’ conduct in this regard
violated OAR 584‘ 020-0040(4)(d).

Finally, with respect to the incident which occurred on or about December 6, 2000, I also
find that TSPC has met its burden of establishing that Specs violated OAR 584—O20-0040(4)(d)
by grabbing JV by the chin and head and causing physical pain. TSPC offered the testimony of
JV, MS, SJ, Michelle Gaines, and Dr. Long. Respondent offered the testimony of Specs and JG.
JV testificd that he was talking to MS when Specs grabbed his chin and bent his head back
without warning or provocation. In response, JV bent Spees’s finger back on the hand that was
holding his chin because Specs was hurting him. When Specs let go, JV ran to meet his mother
who was picking him up from school. JV testificd that he was scared and angry. His mother,
Michelle Gaines, confirmed in her testimony that JV was upset and frightened and had red marks
on his face. JV told her that Specs had grabbed his chin and that he did not provoke Specs.

. Although the testimony of MS differs slightly from that of JV in that she stated that Specs said
“you don’t say that” before he grabbed JV's chin and head, her testimony corroborated JV’s
testimony that JV did not touch Specs or say anything to him before Specs grabbed his chin and
head. SJ who was also in the hall when the incident occurred, testificd that Specs grabbed JV’s
chin and had his other hand on JV’s head. She stated that Specs looked angry. SJ also testificd
that they were talking about Jay Leno’s chin and Specs said ”don‘t make fun of people” and then
grabbed JV’s chin. Specs testificd that he barely brushed J V’s chin when he was trying to
demonstrate how long Jay Leno’s chin was and then JV grabbed his finger and bent it back. Dr.
Long testificd that Specs told her that he had “chucked” J V's chin. JG testificd that he was in the
hall after the bell rang and saw JV grab Specs finger and bend it back but that he did not see
Specs grab JV’s chin and head.

I find the eyewitness testimony of JV, MS and SJ, as corroborated by Michelle Gaines .
and Dr. Long, more persuasive. Although the testimony of JV, MS and SJ all differ slightly from
one another, l find the differences insignificant. ln addition, they all agree that Specs was the
aggressor in grabbing JV’s chin and head. I do not find the testimony of JG, the only other
eyewitness besides Specs to testify that JV was the aggressor, to be helpful inasmuch it is clear
from his testimony that he did not sec the beginning of the incident because he arrived only after
the bell rang. In addition, I do not find Spees’s testimony that he barely touched JV’s chin to be
credible. That testimony is contrary to the eyewitness testimony of JV, MS and SJ and contrary
to the physical evidence that JV had red marks on his face. It also conflicts with Specs’ prior
statement to Dr. Long that he had “chucked” JV under his chin. I also note that, even though the

. DA declined to prosecute Spces or JV for the incident, the DA found that JV had a good claim
In the Matter 0f Gerald Leroy Spees, Page 19 0f 23

for self-defense. Consequently, I conclude that Specs violated the district’s policy on using

' physical force during the incident with JV. Accordingly, TSPC has met its burden of establishing
that Spces violated OAR 584-020-0040(4)(d) in two of the four incidents alleged.
Alleged violation of OAR 584-020-004044119

There is no dispute that on or about January 21, 1988 Specs commented to SR and RB
that SR was attracted to RB. Specs testificd that he said it jokingly. Nonetheless, the question is
whether Specs’ comment constituted “sexual conduct” which violated OAR 584-020-0040(4)(t).

OAR 584-020-0040(4) provides in relevant part that:

Gross neglect of duty is any serious and material inattention to or
breach of professional responsibility. The following may be admissible
as evidence of gross neglect of duty. Consideration may include but is
not limited to:

* * * >t< *

(f) A_ny sexual conduct with a student. (Emphasis added).

TSPC has interpreted its own rule to include the type of comment made by Specs. I am

required to defer to an administrative agency’s plausible interpretation of its own rule if the
. interpretation cannot be shown to be inconsistent with the wording of the rule itself, or with the

rule’s context, or any other source of law Don 't’ Waste Oregon Committee v. Energy Facility
Siting Council, 320 Or 132, 142 (1994). I am authorized to overrule an agency's interpretation of
a rule if an agency has "erroneously interpreted a provision of law." Id. However, here the
"provision of law" is the rule itself.

Where, as here, the agency's plausible interpretation of its own rule

cannot be shown either to be inconsistent with the wording of the rule

itself, or with the rule's context, or with any other source of law, there

is no basis on which * * * assert that the rule has been interpreted

"erroneously." It follows that, in circumstances like those presented

here * * * [ I] cannot overrule * * * * an agency’s interpretation of its

own rule. Don 't’ Waste Oregon, 320 Or at 143.

Consequently, I conclude that Specs violated OAR 584-020-0040(4)(f) in making the
comment to these two middle school students. I note that the comment when made to older
students or adults would appear to be innocent and non-sexual. However, as Dr. Shelly stated in
her letter of reprimand, Specs’ comment was inappropriate coming from a teacher because
middle school students are very sensitive to personal comments.

Alleged violation of OAR 5840200005151
. The 1993 version of the applicable rule, OAR 584-020-0005(5), provides in pertinent part
In the Matter 0f Gerald Leroy Spees, Page 20 0f23

t, l
l
. that: i
1
“Sexual Contact” includes:
* >l< >l< A:
(c) Sexual advances and verbal or physical conduct of a sexual nature
directed toward a student. (Emphasis added).
Furthermore, the district has adopted a policy on Hazing/Sexual Harassment,
which defined sexual harassment as “unwelcome conduct, either sexual or non-
scxual, that is directed toward a person because of that person’s gender." (Emphasis
added). The policy stated that prohibited sexual harassment occurs when
“unwelcome sexual or other gender based conduct interferes with a student’s
performance or creates an intimidating, hostile or offensive school environment,”
and noted that the conduct could be by a teacher, student, administrator or school
staff. The policy also stated that sexual harassment included “[m]aking sexually
suggestive remarks, gestures, or jokes, or remarks of a sexual nature about the
victim’s appearance.” A formal complaint process was part of the policy. The policy
was revised in 1993.
l find that during the incident that occurred on or about October 4, 1993, Specs made an
' offensive comment to students in his geography class but that the comment did not violate OAR
584-020-0005(5). Specs told students that the way to avoid having more children was to “leave
your gun in your holster." OAR 584-020~0005(5) prohibits verbal conduct of a sexual nature
directed toward a student. Specs argued that he did not violate OAR 584-020-0005(5) because
his comment was in keeping with the classroom discussion concerning the overpopulation of
India and the economics of having a large family. He also testificd that the comment was not
directed to any one student.
I find that the comment was crude and inappropriate even in light of the topic discussed
by the class. Specs himself acknowledged that there was a better was to promote abstinence.
Additionally, by the way Specs phrased the comment it was clearly directed to the male members
of the class. Given the age of the students and their tendency to personalize comments, it was
certainly foreseeable that a male student whose brother was a senior in high school with a new
baby would be offended by the comment. However, the rule requires that such comments be
directed toward a student. I am persuaded that the comment was not specifically directed toward
that student. Consequently, I conclude that TSPC has failed to meet its burden of proving that
Specs’ comment violated OAR 584-020-0005(5).
Sanction warranted
ORS 342.175 (l) gives TSPC the authority to suspend or revoke the license of a teacher
. for gross neglect of duty. Additionally, subsection (5) states that:
In the Matter of Gerald Leroy Specs, Page 21 0f 23

“Violation of rules adopted by the commission relating to competent
. and ethical performance of professional duties shall be admissible as
evidence of gross neglect of duty or gross unfitness.”
Pursuant to this statute, I have found that Specs’ conduct in three of these instances violated
OAR 584-020-0040 and constituted gross neglect of duty. The Commission has proposed a
suspension of 90 to 120 days. In determining the appropriate sanction, I apply OAR 584-020-
0045, which states:
The Commission may consider one or more of the following factors, as
it deems appropriate, in its determination of 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:
(1) 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.
(3) The extent, severity, and irm'ninence 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
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.

Applying the factors set forth above, I conclude that a suspension for a period of 90 days
is warranted. In reaching this conclusion, I particularly note that Spees was repeatedly warned by
his supervising principals that unreasonable and improper physical force except to protect
himself or another person from physical harm and inappropriate personal comments to students
would not be tolerated in the future. He was also specifically instructed not to touch students in
the area of the head or neck. I also note that I find his conduct in this regard was not an isolated

. incident but rather a continuing pattern of similar behavior over a decade of employment with
In the Matter of Gerald Leroy Spees, Page 22 0f23

the district, that this conduct is likely to reoccur without the further reinforcement of this

. sanction, and that his conduct was open and notorious causing problems between the school and
the parents, thus affecting the public image of the school. Finally, I note that there is some
danger, given his behavior with J V and MP, that his conduct in this regard could escalate and
pose a danger to students and a student may be seriously injured. It could also have an adverse
consequence for the district should a student bring a lawsuit against the district. At a minimum, I
find that there is a danger that these impressionable young male middle school students will
imitate Specs’ behavior in dealing with conflict situations. The only extenuating circumstances I
note is that Specs underwent counseling and completed the counseling to the district’s
satisfaction. This may impact whether his conduct is likely to reoccur. However, this was not the
first time he was asked to seek help.

Respondent contended at hearing that he should receive a reprimand instead of a
suspension. In support of his contention he argues that a suspension would effectively end his
career as a teacher because the district would not retain him and no other district in Oregon
would hire him in light of the suspension. However, there is no evidence supporting
Respondent’s contention. Moreover, inasmuch as Spees has received numerous reprimands
without changing his behavior, I find a suspension is needed to reinforce the prohibition against
improper comments and the use of excessive force.

PROPOSED ORDER
I propose that the Commission issue the following order: The teaching license of Gerald
. Specs is suspended for 90 days for violations of OAR 584-0020-0040(4)(d), (f), and (n).
Dated this 26w day of March 2002 at Salem, Oregon.
ugqlé;
Ella D. Johnson, Ad istrative Law Judge
Hearing Officer Panel
APPEAL PROCEDURE
NOTICE: Under the current procedures, the Commission reviews the record and proposed order
in contested cases and issues a final order. Pursuant to OAR 137-003-0650, you are entitled to
file written exceptions to this proposed order within 30 days of the date this proposed order is
mailed. The exceptions should explain all of the reasons why you believe that the proposed order
is incorrect. Mail exceptions to:
Teachers Standards and Practices Commission
Public Service Building
255 Capitol Street NE
. Salem. OR 97310~1332 .
In the Matter of Gerald Leroy Spees, Page 23 0f23

' CERTIFICATE 0F SERVICE
RE: Gerald Specs
CASE NO.: TSPC 20012876
I HEREBY CERTIFY that I have made service of copies of the foregoing
PROPOSED ORDER upon the following parties by causing to be mailed in the United
States Post Office at Salem, Oregon, on the 28‘h day of March 2002 by mail, a certified
true, exact and full copy thereof, enclosed in an envelope with postage thereon prepaid,
addressed to:
FIRST CLASS MAIL:
Gerald Specs
PO Box 61
Willamina, OR 97396
Aruna Masih
Attorney at Law
851 sw 6"‘ Ave., Suite 1625
Portland, OR 97204
Joe McKcever
' Department of Justice
1162 Court St. NE
Salem, OR 97310
David Myton
TSPC
255 Capitol St.
Salem, OR 97301
l
nnon DeMello, Hearin Coordinator
Hearing Officer Panel
(503) 373-0387 (Voice)
(503)378-4067 (Fax)
CERTIFICATE OF SERVICE