BEFORE THE TEACHER STANDARDS AND PRACTICES COMMISSION
OF THE STATE OF OREGON
In the Matter of the )
Teaching License of ) FINAL ORDER
)
MARK ALLEN LEICHTY ) Case No. 128296

On January 30, 2007, Administrative Law Judge (ALJ) Alison Greene Webster issued
a Proposed Order in this case. Mr. Leichty filed exceptions to the Proposed Order and his
attorney, Ralph E. Wiser, presented oral argument to the Commission on May 18, 2007.

On January 8, 2008, the Teacher Standards and Practices Commission issued an
Amended Proposed Order adopting the Findings of Fact and Conclusions of Law contained in
the Proposed Order, but rejecting the ALJ’s proposed sanction and rationale for the proposed
sanction. Mr. Leichty filed exceptions to the Amended Proposed Order on January 23, 2008.
Mr. Leichty did not request oral argument.

Afier considering the record and the exceptions filed, the Commission now adopts in its
entirety the Amended Proposed Order as the Final Order, and incorporates it into this Final Order
by this reference.

It is so ordered this [2 7/4‘ day of February 2008.

TEACHER STANDARD AND PRACTICES COMMISSION

a /
y: MM dr/AJAAl/A4
' lctoria Cha u 'n, Executive Director
NOTICE: You are entitled to judicial review of this Final Order pursuant to the provisions 0f
ORS 183.480. Judicial review may be obtained by filing a petition in the Oregon Court of
Appeals. The petition must be filed within 6O days from the date of service of this Final
Order.
PAGE 1 — FINAL ORDER — Mark Allen Leichty

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BEFORE THE
TEACHER STANDARDS AND PRACTICES COMMISSION
IN THE MATTER OF THE TEACHING )AMENDED PROPOSED ORDER
LICENSE OF )
)
MARK ALLEN LEICHTY, ) OAH Case NO- 128296
Licensee l
This matter came before the Commission during its regularly scheduled public meeting of
May l8, 2007 to consider the Proposed Order issued on January 30, 2007 by Administrative Law
Judge Alison Greene Webster. Leichty appeared and was allowed to present oral argument in
support of the exceptions he filed to the Proposed Order. Afier considering the record herein,
TSPC issues this Amended Proposed Order. The Amended Proposed Order adopts the majority
of the ALJ’s Findings of Fact and Conclusions of Law, but rejects the ALJ’s rationale in
recommending the sanction. Any substantial changes to the Proposed Order are identified
below.
HISTORY OF THE CASE
On February 3, 2006, the Teacher Standards and Practices Commission (TSPC or
Commission) issued a Notice of Opportunity for Hearing charging Mark Allen Leichty with
misconduct, including gross neglect of duty and gross unfitness. Specifically, TSPC alleged that
Leichty inappropriately touched four female middle school students on or near their breasts.
Leichty timely requested a hearing.
TSPC referred the hearing request t0 the Office of Administrative Hearings (OAH) on
May 12, 2006. Administrative Law Judge (ALJ) Alison Greene Webster was assigned to preside
at hearing‘ Prehearing conferences were held on August 11, October 10 and October 19, 2006.
TSPC was represented by Assistant Attorney General Matthew J. Donohue. Leichty was
represented by Attorney Ralph E. Wiser.
The hearing was held on October 23 through October 27, 2006 in Salem, Oregon. TSPC
was represented by Assistant Attorney General Matthew J. Donohue. Leichty was represented
by Attorney Ralph E. Wiser. The following witnesses testified at the hearing on TSPC‘s behalf:
Detective Stephen Dom, Albany Police Department; Detective Jerry Drum, Albany Police
Department; Pam Foster; Steve Jensen; Heitho Reuter and former North Albany Middle School
students AE, AC, AN and RK. The following witnesses testified on Leichty's behalf: Cody
Bright; Kori Anderson; Conner McClain; Lisa Spires; Mina Soot; Bonnie Anderson; Peggy
Kroessein; Chris McBride; Amanda Soto; Peggy Fosdick; Kathy Ebbs; Danon Kroessein; Tim
Stewart; Doug Dobie; Kent Hickam; and Brian Braught. Leichty also testified on his own
behalf.
The record remained open for receipt of written closing argument, and closed on January
9, 2007, upon receipt of TSPC‘s reply brief.
In the Matter ofMark Allen Leichty, OAH Case No. 128296
Page 1 0f 24 '

ISSUESI
1. Whether Leichty touched student AN on or near her breast in January or February 2004
and, if so, whether the conduct constitutes gross neglect of duty in violation of OAR 584-020-
0040(4)“).
2. Whether Leichty touched student AE on or near her breast in November or December
2002 and, if so, whether the conduct constitutes gross neglect of duty in violation of OAR 584-
020-0040(4)(f).
3. Whether Leichty touched student AR on or near her breast in November or December
2002 and, if so, whether the conduct constitutes gross neglect of duty in violation of OAR 584-
020-0040(4)(i).
4. Whether Leichty's touching of AN, AE and/or AR was criminal in nature and
constitutes gross unfitness in violation of OAR 584-020-0040(5)(e).
5. If Leichty's conduct violated OAR 584-020-0040(4)(f) or (5)(e), what is the appropriate
sanction?
EVIDENTIARY RULINGS
Exhibits Al to A48, offered by TSPC were admitted. Exhibits A8, Al l, A12, A13, A14
and A15 were admitted over Leichty's objections. Exhibits R1 through R54 and R56 through
R69 were admitted. Exhibits R44, R45, R50, R56, R57 and R59 were admitted over TSPC‘s
objections. Exhibit R55 was excluded as irrelevant.
FINDINGS OF FACT
1. At all times pertinent to this case, Respondent Mark Allen Leichty was licensed as an
educator by TSPC. Leichty began his teaching career in Oregon in 1987 as an elementary school
teacher. In 1993, he accepted a teaching position at North Albany Middle School (NAMS). He
has taught science, math and social studies. (Test. of Leichty.) Throughout his career, Leichty
consistently received positive teaching evaluations. (Ex. R30.) Many students appreciated his
teaching style and his caring and compassionate demeanor. (Test. of Braught; test. of Soot; test.
of McBride.)
2. In F all 20027 Leichty taught seventh and eighth grade science at NAMS. AE, AR and
AM were among the approximately 30 seventh grade students in his fourth period science class.
AE, AR and AM were friends. They sat together in a cluster of four desks near the front of
Leichty's classroom. Early in the school year, the girls were unhappy in Leichty's class because
1 TSPC charged Leichty with having sexual contact with a fourth student, AM, but has since conceded
that the evidence fails to demonstrate such contact occurred. Therefore, this order will only address
whether Leichty's conduct with regard to AN, AE and/or AR constituted gross neglect of duty in violation
of OAR 584-020-0040(4)(f) or gross unfitness in violation of OAR 584-020-0040(5)(e).
In the Matter 0fMarkAlIen Leichty, OAH Case No. 128296
Page 2 of 24

of its timing. They wanted to switch classes so that they could have the later (second) lunch
period. They contacted their counselor and asked to rearrange their class schedule and lunch
period, but their request was denied. (Test. of AE; test. of AC.)

3. Chris McBride was a student teacher in Leichty's science classes during Fall 2002. In
September 2002, he was working in the classroom full time. During October, November and
December, he was there part-time, mostly in the mornings. He taught classes for two or three
weeks during November 2002. (Test. of McBride.)

4. AE, AR and AM occasionally socialized and talked together during science class.
When they did so, Leichty or McBride reprimanded them and asked them to focus on their class
work. (Test. of McBride; test. of Leichty.)

5. If one of the girls raised her hand and asked for help in class, Leichty would approach
her desk and provide the help. Leichty was friendly toward the girls, and helped them complete
their class projects. He would occasionally touch the girls‘ backs or arms while helping them.
He would also occasionally put his arm around the girls‘ shoulders. (Test. of AE; test. of AC;
Ex. A2.)

6. During one class period in early December 2002, AE, AR and AM were talking
together and being disruptive. Leichty became frustrated with them. He yelled at the girls and
stemly reprimanded them. He also separated them by changing two of the girls‘ seats. He then
felt bad for losing his temper. He approached the girls individually and had a private
conversation with each. (Test. of Leichty.) During the conversations, Leichty put his arm
around the girls’ shoulders. When he put his right arm around AE's shoulder, his right hand came
down over her shoulder and touched her chest below her arm pit, near her breast. When Leichty
put his arm around AR's shoulder, his right hand also touched her in the chest area near her
breast. (Test. of AE; test. of AC.) Although Leichty also put his arm around AM's shoulder, he
did not touch her on or near her breast. (Ex. R40 at 37.)

7. On December 9 or 10, 2002, AE, AR and AM went to the Administration Offices to
complain about Leichty. As the girls were making their initial report to the counseling secretary,
Leichty came to Vice Principal Heitho Reuter's office to report that the girls had been disruptive
in class. He asked Reuter if she could support "Saturday school“ as a disciplinary measure for
the girls. He explained that other measures he had taken, including having the girls write
sentences, had not been effective. (Test. of Reuter; test. of Leichty)

8. After Leichty lefi Reuter's office, AE, AR and AM went in to talk with her. The girls
told Reuter that they were feeling uncomfortable with the way Leichty touched them in class.
They said the touching had been going on since the beginning of the school year. They
explained that Leichty would kneel down beside their desks and wrap his arm around their
shoulder with his hand dangling over their breast. They demonstrated how Leichty hugged them.
One of the girls described it as "feeling like a seat belt." They also reported that Leichty drew
them in close when he wrapped his arm around their shoulder. (Ex. Al; Ex. R39 at 2; test. 0f
Reuter.)

In the Matter of Mark Allen Leichty, OAH Case No. 128296
Page 3 of 24

9. Reuter talked with the school resource officer about the girls’ complaints. Based on
what the girls reported about how they had been touched, the resource officer determined that no
crime had occurred. (Test. of Reuter.)

10. On December 10, 2002, Reuter met with Leichty and advised him of the girls‘
complaints. She told Leichty that he needed to keep his hands and body away from all students.
Leichty acknowledged that he occasionally touches his students. With regard to AE, AR and
AM, he explained that he had yelled at the girls in class, causing them to start crying. He
acknowledged that, in an attempt to console AE, he knelt down next to her desk and put his arm
around her. (Ex. R39 at 4; test. of Reuter.)

11. Reuter advised Leichty that he was not being reprimanded for this incident, but that
she would be drafting a letter of expectation to document what had occurred and her expectation
that he not touch any student in a way that makes the student uncomfortable. (Ex. R39 at 4; test
of Reuter).

12. Over the next several days, Reuter spoke to the girls‘ parents to discuss the girls‘
complaints about Leichty. AE's mother asked that her daughter be removed from his class. She
also advised that AE was very upset about the incident and scared to see Leichty at school. (Ex.
A16 at 6; Ex. R39 at 5.) Reuter and Leichty also met with AR and her parents. He said he
understood her concerns and apologized for making her uncomfortable. AR's parents also asked
that she be removed from Leichty's class. Eventually, all three girls were transferred into other
science classes. During a meeting with Reuter on December 17, 2002, Leichty denied rubbing
the girls‘ backs or touching as described (the like a seatbelt). Reuter told him that this position
was different than what he had said previously. Leichty did not explain the discrepancy and
maintained that he had not touched the girls inappropriately. (Ex. R39 at 4-7; test. of Reuter.)

13. On December 19, 2002, Reuter gave Leichty a Letter of Expectation regarding the
girls‘ complaints. The letter stated, in pertinent part, as follows:

This letter is to review an issue that surfaced on December 2, 2002,
and the conversations that have occurred since that time. I
informed you that three girls in your class reported to me that they
were uncomfortable with being physically hugged by you. They
reported that you had knelt beside them at various times during the
year and had placed your arm around them, giving them a hug.
The girls described the hug as "feeling like a seat belt" Where they
were "pulled close." They reported that this had happened several
times over the course of the year. In addition they said that you
have stroked girls On the back or shoulder.
You agreed that you sometimes do touch girls in the manners
described. In addition, you mentioned that your former principal
had talked to you about this manner. You also said that you do this
as an act of caring or consoling behavior, and all parties agree that
it was not interpreted as sexual in nature. This letter is intended to
In the Matter ofMark Allen Leichty, OAH Case N0. 128296
Page 4 of 24

inform you that touching of any kind that makes a child or staff
member feel uncomfortable is inappropriate. In addition, it could
be interpreted as sexual harassment which is against state law and
district policy. Further incidents may result in employee discipline
up to and including dismissal. (Ex. A2.)

I4. Leichty accepted the letter and did not contest Reuter‘s description of the touching
and/or the investigation that followed. He declined to attach his own explanation to the letter,
stating to Reuter that he was comfortable with the letter as written. (Test. of Reuter; Ex. R39 at
7.)

15. During the 2003-2004 school year, AN and RK were students in Leichty's sixth
period science class. They sat next to each other at the end of the third row on the right side of
the class room, the same side as Leichty's desk. AN had the end desk, and RK sat to her lefl.
(Test. of AN; test. of RK; Ex. A7.)

l6. At the beginning of the school year, AN had been designated by the school‘s
administration as a potentially "at risk" student, because of her poor academic performance.
Leichty agreed to be an “invisible mentor" to several designated "at risk" NAMS students,
including AN. Students in the invisible mentoring program were not supposed to know who
their teacher-mentors were, but the teachers were expected to give these students more attention
and assistance in class. (Test. of Leichty; test. of Spires.)

l7. As part of his mentoring of AN, Leichty engaged her in conversation and asked how
she was doing. Unbeknownst to Leichty, this special attention and questioning made AN
uncomfortable. Leichty would oflen ask AN about her home life, a topic she was not
comfortable discussing with him. (Test. of Leichty; test. of AN.) AN mentioned to RK on
several occasions that Leichty's attention and questioning made her uncomfortable. (Test. of
AN; test. of RK).

18. At some point in January 2004, Leichty came to the side of AN's desk, leaned in
close to her and put his arm around her shoulder. As he leaned in, his hand came into contact
with AN's chest and breast. This physical contact and Leichty‘s close proximity made AN
extremely uncomfortable. (Test. of AN; Ex. A9.)

l9. RK noticed that Leichty treated AN differently from the other students in class. She
saw him touch AN on the arm and shoulders when talking to her during class projects. AN
mentioned to RK that Leichty‘s touching made her uncomfortable. (Test. of RK.)

20. On or about January 22, 2004, AN raised her hand for help, and Leichty walked over
to her desk. He put his right hand on the desk and his left hand on the back of her chair. As she
asked her question, Leichty leaned in closer to her. His foot came into contact with hers under
the desk. She thought that he was trying to play "footsie." She moved her feet and body away
from him. (Test. of AN; Ex. A9.)

In the Matter ofMarkAIIen Leichty, OAH Case No. 128296
Page 5 of 24

21. During a class period about three weeks later, AN was upset over something
involving her boyfriend. Leichty came up to her desk. He put his arm around her, leaned in
towards her and asked "Is everything alright?" As in the prior incident, when he had his arm
around her shoulders, Leichty's hand touched AN's chest and the top part of her breast. AN told
Leichty that she was "fine." He then removed his arm from her shoulders and walked away. AN
then turned toward RK and asked, "Did you see how close he was to me?" RK acknowledged
that she had noticed the proximity. Later, during the same class period, Leichty called students
to his desk one at a time to show them their respective grades. When AN was at his desk,
Leichty placed his hands on her shoulders and ran his hands down her arms to about the elbow.
He again asked her how she was doing. The touching and his inquiry added to her distressed
mood. RK noted that AN was upset and in tears. (Ex. A4; test. of RK; test. of AN.)

22. On or about February 12, 2004, another student (LK) advised Reuter that Leichty
was touching AN in class and making her uncomfortable. Reuter called AN to her office to ask
about the touching. Another NAMS teacher, Pam Foster, was also present for this meeting.2
Reuter and Foster spent several minutes questioning AN about Leichty. AN reported that
Leichty had put his arm around her and, in doing so, touched her breast. She described how
Leichty would come up to her desk, put his arm around the back of her chair and lean in close t0
her. AN appeared serious and a bit frightened as she described these incidents to Reuter and
Foster. (Test. of Reuter; test. of Foster; Ex. A8; Ex. A3.)

23. Reuter asked AN to prepare a written statement. On a note dated February 16, 2004,
AN wrote, in pertinent part, as follows:

I was working on my paper and Mr. Lieckty came over and leaned
agenst the counter next to me and he lend over me and put his lefl
arm on my shoulder. Next he slid his hand closer to my brest.
Slides hand down to brest above nibl [sic].

24. Reuter also talked with RK about AN's allegations against Leichty. RK confirmed
that she saw Leichty put his arm around AN on the day in question. RK also stated that AN
often complained to her about Leichty questioning and/or touching her. Reuter had RK write a
statement about what had happened and What she saw. RK did so.3 (Ex. A4.)

2 AN was a student in Foster‘s "Resource Room" class. Foster was also friendly with AN's stepmother.

(Test. of Foster.)

3 RK's statement provides, in pertinent part, as follows:
Mr. Liechty [sic] came up and put his arm around her got like right up in
her face and asked her "is everything alright?" She told him "yea fine"
and he left. But in my opinion he was way too close to her and I arn
scared for her and all but he was like holding her close to him. And
when he calls her to his desk he grabs her shoulders and runs his hands
down her arrns to about the elbow and then asks her stuff. (She never
told me what he asks though). Alicia came back to me and lag crying
and she said she was really scared and was upset all the rest of the day.

* * *
In the Matter ofMarkAllen Leichty, OAH Case No. 128296
Page 6 of 24

25. Alter talking with AN and RK, Reuter believed that Leichty had violated the law by
touching AN in a manner that made her feel uncomfortable. On February l3, 2004, she advised
Leichty that a student had alleged that he had touched her inappropriately. On or about February
l8, 2004, NAMS administrators and school district personnel met with Leichty and his attorney
to discuss the allegations. Leichty denied touching AN, putting his arm around her shoulder or
touching her breast. When he was asked about the incident involving AE, AR and AM the year
before, Leichty denied hugging them and drawing them in close. After the interview with
Leichty, Reuter reported the incident to the Department of Human Services (DHS). Reuter also
advised DHS that three other girls had complained the year before that Leichty's touching made
them feel uncomfortable. (Ex. A10; test. of Reuter; Ex. R61.)
26. On February 23, 2004, DHS referred the complaints about Leichty to the Albany
Police Department. The police opened an investigation into whether Leichty had sexually
abused AN or any other female students. Over the next few months, detectives interviewed
Leichty, Reuter, AN, RK, AE, AR, AM and their parents, other NAMS students and their
parents, and other NAMS teachers and administrators. (Exs. Al l, A12, A13, A14, A15, A16.)
27. Albany Police Detective Dorn interviewed AN on the afiemoon of February 23,
2004. She reported, among other things, that Leichty had touched her breast during class on two
different occasions. She stated that when she raised her hand and asked for help, Leichty would
kneel down beside her desk. She explained that on two occasions, he placed his right hand on
her desk and his left hand on her shoulder and slid his hand down onto her breast. AN also
advised Detective Dorn that she thought Leichty‘s questions about her home life were
inappropriate, that she was not comfortable being around him and did not think that he should be
a teacher. (Ex. A1 1.) Detective Dorn provided AN with an anatomically correct drawing of a
teenage female and asked her to mark where Leichty had touched her. She marked an x on the
chest, just above the breast. (Ex. A14.)
28. On March l, 2004, Albany Police Detective Jerry Drum interviewed AR at school.
She reported that Leichty would rub her back and touch her shoulder, and that this touching
made her uncomfortable. She also indicated that Leichty had also touched her on the chest area,
above her breast, but admitted that she could not recall clearly because it happened "a long time
ago." During the interview, AR became increasingly upset. She refused to answer further
questions about the incident, so Drum terminated the interview. (Ex. A12 at 2.)
Well when he put his arm around her and everything as soon as he
walked away she slowly turned toward me and she said "did you see how
close he was to me?" I said, "Yea, but what did he say?" "He asked me if
my day has been going good" and she was trying so hard not to cry!

(EX. A4.)

In the Matter ofMarkAllen Leichty, OAH Case No. 128296

Page 7 of 24

29. Detective Dorn interviewed AM on March 1, 2004. She reported that she felt
uncomfortable around Leichty. She stated that Leichty put his arm around her shoulder and his
hand came close to touching her breast. AM refused, however, to indicate on an anatomically
correct drawing where Leichty had touched her. (Ex. A13 at 4.)

30. Detective Dorn also interviewed AE on or about March l, 2004. She reported that
Leichty had touched her "boob" on more than one occasion when she was working on projects
during class. She indicated that he would put his arm over her shoulder by reaching around her
back, and then slide his hand down onto the top of her breast. (Ex. A13 at 7.)

31. During March 2004, Leichty was arrested and charged with eight counts of first
degree sexual abuse. (Test. of Hickam.) The indictment, filed in the Benton County Circuit
Court, alleged that in December 2002 Leichty touched three female students inappropriately on
or around the breast area, and did the same with another female student in February 2004. (Ex.
A18.) The arrest made the news. The criminal charges shocked the NAMS faculty and many in
the community who were familiar with Leichty. Several teachers came to Leichty‘s defense.
They stated publicly that Leichty was innocent and the allegations against him were false. (Test.
of AC; test. of RK; test. of P. Krossein.) This was very divisive, and upsetting to the students
involved in the allegations. (Test. of RK; test. of AE.)

32. Leichty was placed on administrative leave during the investigation. On May 11,
2004, the Greater Albany Public School District recommended that he be dismissed. The basis
for the recommendation was his alleged misconduct constituting immorality, insubordination and
neglect ofduty under ORS 342.8650). (Ex. A18.)

33. In June 2004, AR's parents and AE's parents filed a Notice of Tort Claim on their
daughters‘ behalf against the school district, asserting, among other things, that school officials
were negligent in failing t0 protect the girls from unwanted and illegal touching by Leichty, and
in failing to respond appropriately to their complaints in December 2002. (Exs. R41 and R48.)

34. In December 2004, AR's parents and AE's parents filed a civil action against the
school district and Leichty on their daughters‘ behalf seeking damages resulting from Leichty's
alleged unlawful sexual harassment of AR and AE. (Exs. R42 and R43.)

35. In the course of discovery in the civil lawsuit, Leichty‘s attorney took depositions of
the four girls (AE, AR, AM and AN) and their parents. AM testified that Leichty put his arm
around her shoulder, but did not touch her on or near her breast. (Ex. R40 at 37.) The other girls
testified that Leichty touched them on or near their breasts, but their accounts of when and how
ofien the touching occurred differed from their initial statements and complaints to Reuter and
their statements to the police. (Exs. R46, R49 and R60.)

36. In July 2005, the Benton County District Attorney's office moved to dismiss the
criminal charges against Leichty. The charges were dismissed without prejudice. (Test. of
Hickam.)

In the Matter ofMark Allen Leichty, OAH Case No. 128296
Page 8 of 24

CONCLUSIONS 0F LAW
TSPC adopts the ALJ’s Conclusions of Law, but rejects the conclusion that the appropriate
sanction is a reprimand. TSPC’s conclusion of law number 5 articulates the sanction that TSPC
finds is appropriate in this case.
1. Leichty touched student AN on her breast in January or February 2004 in a manner that
constituted gross neglect of duty under OAR 584-020-0040(4)(f).
2. Leichty touched student AE on or near her breast in November or December 2002 in a
manner that constituted gross neglect of duty under OAR 584-020-0040(4)(f).
3. Leichty touched student AR on or near her breast in November or December 2002 in
manner that constituted gross neglect of duty under OAR 584-020-0040(4)(f).
4. The evidence fails t0 establish that Leichty‘s touching of AN, AE and AR was criminal
in nature. Therefore, no violation of OAR 584-020-0040(5)(e) has been proven.
5. The appropriate sanction for Leichty's gross neglect of duty is revocation of his
teaching license.
OPINION
Under ORS 342.175(l)(b), TSPC is authorized to discipline educators licensed in the
State of Oregon for “ gross neglect of duty." TSPC may also discipline an educator for "any
gross unfitness" under ORS 342.175(l)(c). In this case, TSPC alleges that Leichty had sexual
contact with three female middle school students, AN, AE and AR, by touching them
inappropriately on or near their breasts.4 TSPC alleges that this conduct constitutes gross neglect
of duty in violation of OAR 584-020-0040(4)(f) and/or gross unfitness in violation of OAR 584-
020-0040(5)(e).
TSPC bears the burden of proving the allegations by a preponderance of the evidence.
ORS 183.45()(2) and (5); Reguero v. Teachers Standards and Practices Commission, 312 Or
402, 418 (I991) (burden is on Commission in disciplinary action); Cook v. Employment Div., 47
Or App 437 (1980) (in the absence of legislation adopting a different standard, the standard in
administrative hearings is preponderance of the evidence). Proof by a preponderance of
evidence means that the fact finder is convinced that the facts asserted are more likely true than
false. Riley Hill General Contractor v. Tandy Corp, 303 Or 390 (1987).
A. Gross Neglect of Duty
OAR 584-020-0040(4) describes “ gross neglect of duty" as "any serious and material
inattention to or breach of professional responsibilities." The rule further states that "any sexual
conduct with a student" may constitute gross neglect of duty. OAR 584-020-0040(4)(f). "Sexual
conduct" is defined in OAR 584-020-0005(5). lt includes:
4 As noted above, TSPC has withdrawn the allegation that Leichty had sexual contact with student AM.
In the Matter ofMarkAllen Leichty, OAH Case No. 128296
Page 9 of 24

(a) The intentional touching of the breast or sexual or other intimate
parts 0f a student;

(b) Causing, encouraging, or permitting a student to touch the breast
or sexual or other intimate parts of the educator;

(c) Sexual advances or requests for sexual favors directed towards a
student;

(d) Verbal or physical conduct of a sexual nature when directed
toward a student or when such conduct has the effect of
unreasonably interfering with a student's educational performance or
creates an intimidating, hostile or offensive educational
environment; or

(e) Verbal or physical conduct which has the effect of unreasonably
interfering with a student's educational performance or creates an
intimidating, hostile or offensive educational environment.

TSPC asserts that Leichty had "sexual contact" with the three female students by
touching them inappropriately on or near their breasts.5 TSPC contends that this contact
constitutes "sexual conduct" under OAR 584-020-0005(5)(a) or (e). Leichty, on the other hand,
denies touching the girls‘ breasts or other intimate parts. He also challenges the girls’ credibility,

. noting their inconsistent accounts as to the manner in which, when and how oflen Leichty
touched them.

In determining whether Leichty engaged in conduct constituting gross neglect of duty,
the first question is whether he touched the girls on or near their breasts. If so, the next question
is whether this touching rises to the level of "sexual conduct" as defined by TSPC‘s rules.

With regard to student AN, TSPC finds that the most reliable account of what occurred in
January and/ or February 2004 comes from Reuter‘s notes and the written statements of AN and
RK. All of these accounts were written shortly after the events in question. There is no evidence
that, at the time the statements were made and the documents were written, these two students or
Reuter had any motive to falsely accuse Leichty of misconduct. Indeed, AN did not initiate the
complaint. Another student reported the inappropriate touching to Reuter, prompting Reuter to
question AN about it. When first questioned, AN indicated that on two occasions, Leichty put
his arm around her and leaned in close. She stated that, on both occasions, his hand made
contact with her chest and the top part of her breast. She reported that this physical contact and
Leichty's close proximity to her made her extremely uncomfortable. RK confirmed that on at
least one occasion she saw Leichty put his arm around AN's shoulders and draw her close. She
also confirmed that AN was distressed by the physical contact and Leichty's close proximity to
her. Based on this evidence, TSPC is persuaded that Leichty touched AN on her breast in
January or February 2004.

5 The term "breast" is not defined by TSPC‘s rules, but is defined by Webster's Third New International
Dictionary at 273 (unabridged 2002 ed.), as follows: 1 a: either of two protuberant milk producing
glandular organs situated on the front of the chest or thorax in the human female * * * 2 a: the fore or
ventral part of the body between the neck and abdomen: the front of the chest."

In the Matter ofMark Allen Leichty, OAH Case No. 128296

Page 10 of 24

TSPC is also persuaded that this touching constitutes sexual contact under the provisions
of OAR 584-020-0005(5)(e). The testimony of AN, RK and Reuter establishes that Leichty's
touching of AN's breast unreasonably interfered with her educational performance and/or created
an intimidating or offensive educational environment for her. AN's distress was apparent to RK,
who sat next to her in class. RK noted that on the day she saw Leichty put his arm around AN
and draw her close, AN was visibly upset by his actions. Reuter also noted AN's serious and
frightened demeanor as she described the touching during the February 12, 2004 interview.

With regard to students AE and AR, TSPC finds that the most reliable account of what
occurred in November or December 2002 comes fiom the girls‘ statements to Reuter in
December 2002 and Reuter‘s investigatory notes written shortly thereafter. When the girls first
complained about the touching, they clearly expressed their discomfort with it. They all sought
to transfer to a different science class. The girls reported that Leichty hugged them and wrapped
his arm around their shoulders with his hand dangling over their breasts. They described it as
"feeling like a seat belt. " Although the girls did not specifically indicate that Leichty touched
their breasts, they demonstrated how his hand came into contact with their chests, near the top of
their breasts. Based on this evidence, TSPC is persuaded that, on at least one occasion, Leichty
touched both AE and AR on the chest area near their breasts.

Based on these findings, TSPC concludes that Leichty engaged in “sexual conduct” as
defined in OAR 584-020-0005(5)(a).6 As mentioned above, the facts demonstrate that Leichty
touched AN on her breast in January or February of 2004. This conduct falls within the
definition of OAR 584-020-0005(a) as it constitutes “[t]he intentional touching of the breast.”
Leichty’s conduct regarding students AE and AR also meets the definition of “sexual conduct”
because he intentionally touched an intimate part of the students’ bodies, namely, the area of
their chest near their breasts. An “intimate part of the body” is a place on a person’s body that
the person ordinarily allows to be touched only by other people with whom the person has an
intimate relationship. State v. Meyrovich, 204 Or App 385 (2005) (finding the touching of the
victim's neck to be an intimate part); see also State v. Woodley, 306 Or 458, 463 (1988). (the
part must be subjectively intimate to the person touched, and either known by the accused to be
so or to be an area of the anatomy that would be objectively known to be intimate by any
reasonable person). In this case, the facts demonstrate that both AE and AR found Leichty’s
touching of the area near their breasts to be inappropriate and offensive. In addition, it is
objectively reasonable to conclude that the area of a woman’s chest near her breast is a place
where she would only allow touching from a person with whom she has an intimate relationship.
Leichty’s touching of AN, AR, and AE constitute “sexual conduct” as defined in OAR 584-020-
0005(5)(a).

Leichty's touching of AE and AR also unreasonably interfered with the girls‘ educational
performance and/ or created an intimidating, hostile or offensive educational environment under
584-020-0005(5)(e).7 The girls made it clear to Reuter that Leichty's touching made them
uncomfortable. Even though, at the time, the girls did not interpret the physical contact as sexual
6 This paragraph has been modified from the text in the Proposed Order in response to Leichty’s
exceptions 15 and 16 to the Amended Proposed Order.

7 This paragraph has been modified from the text in the Proposed Order in response to Leichty’s
exceptions 15 and 16 to the Amended Proposed Order.

In the Matter ofMarkAllen Leichty, OAH Case N0. 128296

Page ll of 24

in nature,8 they nevertheless found it offensive and inappropriate. AE was very distressed by the
incident and advised her mother that she was scared to see Leichty at school. As evidenced by
Leichty's apologies to AR and her parents, he recognized that his touching made the girls
uncomfortable. Because TSPC’s definition of "sexual conduct" includes any touching that
creates a intimidating, hostile or offensive educational environment, TSPC has shown that
Leichty engaged in "sexual conduct" with the three students at issue when he touched them on or
near their breasts.
Insofar as any sexual conduct with a student may constitute gross neglect of duty, OAR
584-020-0040(f), TSPC has proven that Leichty violated ORS 342.175(l)(b) with regard to
students AN, AE and AR.
B. Gross Unfitness
"Gross unfitness" is defined by OAR 584-020-0040(5)(e) as follows:
[A]ny conduct which renders an educator unqualified to perform
his or her professional responsibilities. Conduct constituting gross
unfitness may include conduct occurring outside of school hours or
off school premises when such conduct bears a demonstrable
relationship to the educator's ability to fulfill professional
responsibilities effectively. The following may be admissible as
evidence of gross unfitness. Consideration may include but is not
limited to:
>1: * a: * *
(e) Admission of or engaging in acts constituting criminal conduct,
even in the absence of a conviction; * * *.
TSPC asserts that by touching AN, AE and AR on or near the breast, Leichty engaged in
criminal contact, namely sexual abuse in the first degree. Under ORS 163.427(1), a person
commits the crime of sexual abuse in the first degree when the person "subj ects another person
to sexual contact" and the victim is less than l4 years of age. For purposes 0f the criminal
statutes, "sexual contact" is defined as:
[A]ny touching of the sexual or other intimate parts of a person or
causing such person to touch the sexual or other intimate parts of
the actor for the purpose of arousing or gratifying the sexual desire
of either party.

ORS 163.305(6).

A woman's breast is an intimate part of a person. State v. Woodley, 306 Or 458 (1988).
An intimate part of a person also includes a body part that the person ordinarily allows to be
touched only by other people with Whom the person has an intimate relationship, State v.
Meyrovich, 204 Or App 385 (2005) (finding the touching of the victim's neck to be an intimate
8 Reuter‘s December l9, 2002, Letter of Expectation states that the touching was not "interpreted as
sexual in nature." (Ex. A2.)

In the Matter ofMark Allen Leichty, OAH Case No. 128296
Page 12 of 24

part); see also Woodley at 463 (the part must be subjectively intimate to the person touched, and
either known by the accused to be so or to be an area of the anatomy that would be objectively
known to be intimate by any reasonable person).

In assessing whether Leichty's touching of AN, AE and AR on or near their breasts
constitutes sexual contact for purposes of ORS 163.305(6) and 163.427, one determinative
question is whether this touching was for the purpose of arousing or gratifying sexual desire.
Although a pattern of touching similar victims in a similar manner can be relevant to proving a
person's mens rea, see State v. Wert, 144 Or App 581 (1996),9 the record in this case fails to
establish any nefarious intent in connection with Leichty's touching.

As documented in Reuter‘s December l9, 2002 expectation letter, the touching of AE and
AR occurred as Leichty was trying to console them following his reprimand of them. The girls
were offended by the touching, but did not interpret it as sexual in nature. There is no evidence
that Leichty made any sexual or otherwise inappropriate cements to any of the girls. The
touching of AN occurred as Leichty asked her if she was okay, when she appeared upset during
class. Again, although the touching and Leichty's inquiry made her uncomfortable, the
circumstances provide no basis for inferring that he touched the top of her breast for the purpose
of arousing or gratifying sexual desire. No criminal conduct, and therefore no gross unfitness,
has been established.

C. Response to Exceptions to Proposed Order

Leichty filed exceptions to the Proposed Order in a timely manner. TSPC has considered
the exceptions and rejects them for the following reasons:

Leichty makes 12 exceptions to the order proposed by the ALJ. Leichty’s first exception
is a general exception to any portion of the proposed order that is inconsistent with his written
closing argument. Exceptions 2 and 8 pertain to findings that Leichty touched the students on or
near their breasts. Exceptions 3, 10, ll, and 12 relate to any finding, explicit or implicit, that the
students were credible witnesses. Exception 6 challenges the finding that AR and AE did not
have any motive to falsely accuse Leichty of touching them. The remaining exceptions, 4, 5, 7,
and 9 challenge individual factual findings of the ALJ.

TSPC rejects Leichty’s first exception as it finds the ALJ’s findings t0 be more
persuasive than Leichty’s closing argument. TSPC rejects Leichty’s second and eighth
exceptions as it concludes that the ALJ correctly determined, from the evidence introduced
during the contested case hearing that Leichty touched AR, AE, and AN on or near their breasts.
TSPC rejects exceptions 3, 10, ll and 12 regarding the students’ credibility because it finds the
9 In Wert, the defendant was charged with sexual abuse in the first degree for rubbing the buttocks of a
nine year old girl. At trial, to rebut the defendant's claim that the touching was accidental and without
sexual intent, the state offered evidence that two or three days after the alleged sexual abuse, the
defendant touched the leg of a 12 year old girl, and rubbed it up to "the crease" where her leg joined the
body. The trial judge admitted this uncharged misconduct evidence, and the defendant was later
convicted of sex abuse. On appeal, he argued that the trial court erred in admitting the evidence under
OEC 403 because it was more prejudicial than probative. The court disagreed, finding that evidence was
relevant to prove mens rea.

In the Matter ofMarkAllen Leichty, OAH Case No. 128296
Page 13 of 24

findings of the ALJ to be conclusive on the issue of the students’ credibility. TSPC rejects
exception 6 because it finds that the ALJ has implicitly found that AE and AR did not have a
motive to falsely accuse Leichty of touching them.

TSPC rejects exception four as it is persuaded by the findings of the ALJ that AE and AR
did not make false allegations against Leichty for the purpose of being removed from his class in
order to allow them to attend a different lunch period.

TSPC rejects exception five as well. This exception involves the timing of AE and AR’s
testimony that Leichty touched them on or near their breasts. TSPC accepts the ALJ ’s
conclusions of fact and law on this issue because, while neither AE or AR explicitly told Reuter
that Leichty touched them on their breasts, TSPC concludes that the ALJ correctly concluded
from the evidence presented at the contested case hearing that Leichty touched AE and AR on or
near their breasts.

In exception seven, Leichty appears to argue that the ALJ erroneously determined that
AN did not have any personal animosity toward Leichty because he served as AN’s “invisible
mentors.” TSPC rejects this exception because it finds the ALJ’s findings on this issue to be
conclusive, including, but not limited to, the finding that, “RK confirmed that on at least one
occasion she saw Leichty put his arm around AN's shoulders and draw her close. She also
confirmed that AN was distressed by the physical contact and Leichty's close proximity to her.
Based on this evidence, I am persuaded that Leichty touched AN on her breast in January or
February 2004.”

In exception nine, Leichty challenges the ALJ factual findings regarding RK’s account of
AN’s interactions with Leichty. TSPC rejects this exception because it finds the ALJ findings
regarding RK’s credibility, and RK’s explanation of AN’s interactions with Leichty during her
testimony of the contested case hearing, to be persuasive.

D. Response to Exceptions to Amended Proposed Order

Leichty filed exceptions to the Proposed Amended Order in a timely manner. TSPC has
considered the exceptions and rejects them for the following reasons:

Several of Leichty’s exceptions to the proposed amended order re-iterate exceptions that
he made to the proposed order. These include exceptions l, 4 and 5. TSPC rejects these
exceptions for the reasons stated in its rejection of Leichty’s exceptions to the Proposed Order.

In exception 2, Leichty excepts to the ALJ’s exclusion of exhibit marked R55. Exhibit
R55 was excluded as not relevant to issues in the case. Exhibit R55 is an Oregon Judicial
Information Network (OJIN) report on Yamhill County Case No. CR0203 70. Page 8 of the
exhibit identifies AN as one of the victims in the case. TSPC accepts the ALJ’s ruling that this
exhibit is not relevant to the issues in this case. TSPC also notes that, to the extent that Leichty
would seek to use the results of the case to impeach AN’s credibility, the case is a criminal case,
which has a higher burden of proof (beyond a reasonable doubt) than the contested case
(preponderance of evidence). Dismissal of any charge in the criminal case can therefore not be
interpreted to mean that the allegations made in that case could not be proven by a
preponderance of evidence. For these reasons, TSPC rejects exception 2.

In the Mat/er ofMarkAllen Leichty, OAH Case No. 128296
Page l4 of 24

In exception 3, Leichty takes exception to finding of fact 3 because it allegedly ignores
the testimony of Chris McBride. Finding of fact 3 merely describes McBride’s participation in
Leichty’s class as a student teacher. TSPC rejects exception 3 as it is persuaded that the record
supports finding of fact number 3.

TSPC rejects exception 6. In exception 6, Leichty seeks to have TSPC make additional
findings of fact regarding his classroom interactions with AN. The ALJ declined to make these
findings of fact and TSPC is persuaded that the ALJ made all of the necessary findings of fact to
support the Conclusions of Law.

TSPC rejects exception 7 as it seeks to require TSPC to make additional findings of fact.
The ALJ declined to make these findings of fact and TSPC is persuaded that the ALJ made all of
the necessary findings of fact to support the Conclusions of Law.

TSPC rejects exception 8 as it seeks to require TSPC to make additional findings of fact.
Footnote 3 of finding of fact 22 is a quotation of a statement made by RK. The ALJ declined to
make this finding of fact and TSPC is persuaded that the ALJ made all for the findings of fact
necessary to support the Conclusions of Law.

TSPC rejects exception 9 which challenges the credibility of Heitho Reuter. TSPC
rejects this exception because it finds the ALJ ’s implicit determination of Heitho Reuter’s
credibility to be persuasive.

In exception 10, Leichty excepts to findings of fact regarding the investigation conducted
by Albany Police Department Detectives Dorn and Drum. TSPC rejects this exception. In
making findings of fact 27, 28, 29, and 30 the ALJ implicitly determined that Detectives Dom
and Drum conducted an adequate police investigation. TSPC rejects exception 10 as it finds the
ALJ’s findings of fact numbers 27, 28, 29, and 30 to be persuasive.

In exception 11, Leichty argues that TSPC must prove its allegations against him by clear
and convincing evidence. TSPC rejects this exception based on case law articulating a
“preponderance of evidence” standard for contested case proceedings. See Gallant v. Board of
Medical Examiners, 159 Or App 175, 180 (1999). In exception ll, Leichty also excepts t0
findings that AE, AR, and AN were credible. As mentioned previously in TSPC’s response to
Leichty’s exceptions to its proposed order, the ALJ implicitly found that AE, AR, and AN
credibly testified as to the facts necessary to support the ALJ’s conclusions and TSPC is
persuaded by this finding. In addition, TSPC is persuaded that the ALJ applied the correct
standard when making any implicit findings regarding the credibility of AE, AR, and AN in that
the ALJ reviewed the whole record in reach any conclusions on credibility. In exception 11,
Leichty also excepts to any ALJ determination, implicit or otherwise, regarding the credibility of
witnesses Heitho Reuter, Hollie Martin, Pam Foster, Detective Steve Dorn, and Detective Jerry
Drum TSPC rejects this part of exception 11 on the same grounds that it rejects his credibility
arguments regarding AE, AR, AN: there is substantial evidence in the record that the witnesses
were credible and the ALJ reviewed this evidence before making any implicit or explicit findings
of witness credibility.

In the Matter ofMarkAIIen Leichty, OAH Case No. 128296
Page 15 of24

In exception 12, Leichty argues that the Amended Proposed Order is not consistent and
lacks reason based on what Leichty characterizes as inconsistent testimony of witness Heitho
Reuter. TSPC rejects this exception because the record includes testimony and documents in
addition to Ms. Reuters testimony including, but not limited to, testimony of AE, AR, and AN,
testimony from Detective’s Drum and Dorn, written admissions by Leichty to inappropriately
touching AE and AR, and RK’s witness statements of Leichty’s interactions with AN. TSPC
rejects exception 12 as it is persuaded that the record, viewed as a whole, supports the ALJ’s
determination that Leichty touched AN, AE, and AR on or near their breasts.

In exception 13, Leichty argues to all of TSPC’s conclusions of law except the TSPC
conclusion that it has not proven that Leichty’s behavior constituted “gross unfitness.” Leichty
argues that the conclusions are not supported by substantial evidence, are clearly erroneous as a
matter of law, and are an abuse of TSPC discretion. As explained previously in this Amended
Order, TSPC is persuaded that the findings of fact are supported by substantial evidence and that
the findings of fact support the conclusions of law. TSPC rejects Leichty’s allegations that the
Amended Order is erroneous as a matter of law and an abuse of discretion because the exception
does not explain how it is erroneous as a matter of law or an abuse of discretion, nor does it cite
any statute or regulation that TSPC has violated or that prevents the agency fiom issuing the
Amended Order.

In exception l4, Leichty objects to the sanction set forth in Conclusion of Law number 5.
For the reasons below, TSPC rejects this exception.

Leichty first objects to the proposed sanction by arguing that TSPC did not demonstrate
that Leichty had the disqualifying status or character trait that deemed him grossly unfit at the
time of the actual TSPC hearing. Leichty supports this argument by citing Teacher Standards
and Practices Commission v. Bergerson, 342 Or 301 (2007). TSPC first notes that, in exception
14, Leichty supports his argument by citing the standard that the Bergerson Court articulated for
determining “gross unfitness.” However, because TSPC did not conclude that Leichty’s conduct
constituted “gross unfitness,” that standard is not applicable in this case. On the issue of “gross
neglect of duty,” the Bergerson Court determined that any TSPC rule defining gross neglect of
duty must bear some nexus to a teacher’s professional responsibilities. 342 Or at 312 (“In
ordinary parlance, professional duties are specific to a profession and are distinct from the moral
and civic obligations of all citizens to behave ethically and to obey the law at all times.”.) In this
case, Leichty was found to have touched female students on or near their breasts during the
students ’ class time and while in Leichty ‘s classroom during regular classroom hours. Whatever
the outer boundaries are regarding the nexus between teacher misconduct and professional
responsibilities sufficient to support a conclusion of gross unfitness, Leichty’s professional
responsibilities most certainly involve refraining from touching female students on or near their
breasts While they are in his classroom attending class.

Leichty also argues in exception l4 that the sanction of revocation is an abuse of
discretion under ORS l83.382(8). In support of this position, Leichty argues that the sanction is
an abuse of discretion because it is inconsistent with what he characterizes as “similar” case and
because the ALJ determined that there was n0 “nefarious intent” to Leichty’s touching of AR,
AE, and AN. Leichty cites Labor Ready Northwest, Inc. v. BOLI, 208 Or App 195, 199 (2006)
for the proposition that “intent” means “conscious choice” or “design or purpose.” TSPC rejects
In the Matter ofMarkAllen Leichty, OAH Case N0. 128296
Page 16 of 24

these arguments. Leichty made a conscious choice to place his hand on or near the breasts of
three students in his class. In addition, ORS 342.175(l)(b) authorizes TSPC to revoke a
teacher’s license for gross neglect of duty. TSPC has determined that, given the facts and
circumstances in this case, revocation of Leichty’s license is the appropriate sanction. In
addition, TSPC notes that, in the overwhelming majority of previous TSPC reprimand sanctions
that Leichty presented during the contested case hearing, the teacher stipulated to the sanction,
meaning that no evidentiary hearing was ever held. In this case, Leichty’s misconduct has been
proven by a preponderance of evidence. This conduct involved multiple violations over multiple
years involving multiple students. Further, the evidence demonstrates that the misconduct had a
profound negative impact on the student’s learning environment. TSPC has the statutory
discretion to revoke Leichty’s teacher license and the agency is convinced that the facts of this
case support the revocation.

Leichty next argues that the evidence does not support any finding that Leichty’s conduct
“created an intimidating or offensive educational environment” for AN. The ALJ determined
that Leichty’s conduct did create such an environment and TSPC is persuaded by the ALJ’s
findings on this issue is supported by substantial evidence, including but not limited to,
testimony from RK as to the negative effect that Leichty’s conduct had on AN during Leichty’s
class.

Leichty also argues that the ALJ finding that “Leichty’s touching of AE and AR
unreasonably interfered with the girl’s education performance and/or created an intimidating,
hostile or offensive environment” is not supported by substantial evidence. The ALJ concluded
that Leichty’s touching did create such an environment and TSPC is persuaded that the
determination is supported by substantial evidence. Irrespective of any other problems or
challenges that AE and AR may have had that impacted their academic performance and
environment, there is evidence in the record, including but not limited to testimony by AE, AR,
and Heitho Reuter, that Leichty’s touching created a learning environment so untenable to the
students that they approached school administrators seeking a transfer from his class. TSPC
therefore rejects this argument.

In exception 15, Leichty argues that TSPC’s application of OAR 584-020-0005(e)
(defining sexual conduct) to this case is “clearly erroneous” because Leichty argues that the rule
could encompass conduct that is not of a sexual nature, and therefore is beyond the legislature’s
grant of authority. Leichty’s exceptions is rejected. First, Leichty’s reliance on this exception is
inconsequential because — as discussed below — the conduct in question fits the definition of
sexual conduct under OAR 584-020-0005(a). Second, the situation that Leichty complains of
with regarding to OAR 584-020-0005(e) is not present here. Indeed, the application of OAR
584-020-005(e) to this case is limited to conduct that is 0f a sexual nature. TSPC’s interpretation
of the rule is neither inconsistent with, nor outside of the scope of, the legislative authority given
to TSPC to promulgate rules.

In exception l6, Leichty argues that his conduct does not rise to the level of “sexual
conduct” under OAR 584-020-0005(a). He argies that touching of the students was not
“intentional” because the ALJ determined that the touching was not sexual in nature and because
Leichty did not make any sexual or inappropriate comments to the students. OAR 584-020-
0005(a) defines “sexual conduct” as “[t]he intentional touching of the breast or other intimate
parts of a student.” An intent to gratify one’s sexual desires is not a part of the definition of
In the Matter ofMark Allen Leichty, OAH Case No. 128296
Page l7 of 24

“sexual conduct” under OAR 584-020-0005(a). That is to say, a teacher engages in sexual
conduct when he or she intentionally touches a female student’s breast or intimate parts for any
reason, not merely to satisfy sexual desire. As discussed above, an intimate part of a person is a
place on that person’s body that includes a body part that the person ordinarily allows to be
touched only by other people with whom the person has an intimate relationship. State v.
Meyrovich, 204 Or App 385 (2005) (finding the touching of the victim‘s neck to be an intimate
part). The facts in this case, including but not limited to, testimony of AE, AR, and AN support
the finding that all three students considered their breasts, and the area of their upper chest above
and around their breasts, to be an intimate part of their bodies. The evidence also demonstrates
that Leichty did touch the students on or near their breasts. Leichty’s conduct satisfies the OAR
584-020-0005(a) definition of “sexual conduct” and TSPC rejects exception l6.
Finally, in exception l7, Leichty argues that TSPC cannot use an unwillingness to accept
responsibility for his actions as one of the factors for determining the severity of sanction.
Leichty supports this argument by noting that OAR 584-020-0045 lists eight factors that TSPC
considers when disciplining a teacher and that these factors are exclusive. However, OAR 584-
020-0045(9) allows TSPC to consider “[a]ny extenuating circumstances or other factors bearing
on the appropriate nature of a disciplinary sanction,” when determining an appropriate sanction.
The refusal of a teacher to acknowledge that he or she has engaged in behavior that has
negatively affected students’ learning environment falls under OAR 584-020-0045(9),
particularly when TSPC has proven by a preponderance of evidence that the touching occurred
and that it had a negative impact on the student victims’ learning environment. TSPC also notes
that Leichty’s unwillingness to accept responsibility for his actions toward the student victims is
only one of several factors that TSPC considered in imposing the sanction. To the extent that
Leichty argues in his exception that he has taken responsibility for his actions, TSPC is
persuaded by the ALJ’s determination that Leichty has not taken such responsibility. TSPC
rejects exception 17,
E. Sanction
TSPC proposed the sanction of revocation of Leichty’s teaching license with the ,
opportunity to apply for a teaching license afier one year. The sanction also requires that Leichty
submit proof of successful completion of a sexual offender training program with any future
license application.
The ALJ disagreed with the proposed TSPC sanction and recommended the following
sanction:
“In recommending the sanction in this case, I considered the following circumstances:lo
Despite Reuter‘s admonition in December 2002 not to touch any student in a manner that made
1° Under OAR 584-020-0045, TSPC may consider any of the following factors in disciplining a teacher:
(1) If the misconduct or violation is an isolated occurrence, part of
a continuing pattern, 0r one of a series of incidents;
(2) The likelihood of a recurrence of the misconduct or violation;
(3) The educator's past performance;

In the Matter ofMarkAlIen Leichty, OAH Case No. 128296

Page l8 of 24

the student feel uncomfortable, Leichty hugged and touched AN in that manner l3 months later.
When questioned about AN, he flatly denied touching her or putting his arm around her
shoulder, even though another student observed him do so. Leichty also denied that he had
hugged or touched AE and AR, even though he had previously conceded he had done so. It is
also significant that these incidents involved middle school girls who are maturing into puberty
and conscious of their bodies. Although the misconduct itself was not open and notorious, the
investigation that followed and Leichty's arrest on sex abuse charges had negative effects on the
public image of the school. Furthermore, unlike many of the Stipulated Orders that Leichty
offered in support of his position, he has not accepted responsibility for his conduct. He also did
not cooperate with the agency's investigation.ll
In mitigation, Leichty is a good teacher with no prior record of misconduct or discipline.
Throughout his l7 years in the classroom, he consistently received positive teaching evaluations.
Many students appreciate his teaching style and his caring and compassionate demeanor. And,
as noted above, although the touching made AE, AR and AN uncomfortable, there is no evidence
of nefarious intent. There is no evidence that Leichty made any sexual advances toward these
girls or other students. He did not touch or attempt to contact the students outside the classroom
environment.
In consideration of the above factors and the sanctions that TSPC has imposed for similar

misconduct (i. e., touching students in a manner that made the students uncomfortable and created

(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

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; or

(10) To deter similar misconduct by the educator or other

educators.
1' The sequence of events in this case may account for some of Leichty‘s lack of cooperation with the
TSPC investigation. As set out above, in March 2004, within weeks of the AN incident, he was arrested
and charged with eight counts of sexual abuse. He was placed on administrative leave, and in May 2004,
dismissed by the school board. The following month, AE's and AR's parents filed the notice of tort claim.
The civil action was filed in December 2005. Although the criminal charges were dismissed in July 2005,
TSPC charged Leichty with misconduct including gross unfitness in February 2006.
In the Matter ofMark Allen Leichty, OAH Case No. 128296
Page l9 of 24

an intimidating, hostile or offensive educational environment),l2 I find that an appropriate
sanction is a public reprimand and probation for a period of two years with the conditions set out
below, to begin if or when Leichty returns to teaching. Because Leichty has not worked as a
teacher for nearly three years (since he was placed on leave in March 2004 and then dismissed
by the school district in May 2004), a suspension of his teaching license is unnecessary at this
point.”

TSPC agrees with the ALJ ’s conclusions regarding the aggravating factors supporting
sanction. TSPC does not, however, agree with the ALJ’s conclusions that the mitigating factors
identified support a sanction that does not include revocation of Leichty’s license. While
Leichty has received positive teaching evaluations in the past, the ALJ findings in this case
demonstrate that Leichty has engaged in a pattern of behavior over several years that involved
the touching of female middle school students on or near their breasts. The ALJ’s findings also
support the conclusion that this touching had a serious negative impact on the emotional well-
being of his student victims. Finally, while Leichty did not attempt to touch his student victims
outside the classroom, the ALJ ‘s findings support the conclusion that Leichty is unwilling to
accept responsibility for his actions. The ALJ’s findings also demonstrate that attempts by
school administration to prevent further touching from occurring have not been successful. The
ALJ’s findings of fact and conclusions of law therefore support the sanction set out below.

'2 For example, a male teacher who leaned over two female students while assisting them in class in a
manner that made the students uncomfortable; brushed another female student‘s buttocks with his hand
while she passed him in the hallway; and made an inappropriate comment to a female student in class;
stipulated to a public reprimand and one year probation with conditions, including attending a sexual
harassment training program. Curtis Wilkins (August 2000). Another male teacher who hugged female
students, massaged their backs and otherwise touched them in a manner that made the students feel
uncomfortable stipulated that his conduct violated OAR 584-020-0040(4)(t) (gross neglect of duty
through sexual conduct with a student). He received a public reprimand and two years probation with
conditions, including completing an intensive education program regarding appropriate boundaries with
students. David Coleman Parsons (May 2003). On the other hand, TSPC has revoked the license of a
male teacher who pled guilty and was convicted of sex abuse involving female students, Dustin Timothy
Beck (November 2005); a male teacher who hugged and kissed a student, vocalized his love for her and
attempted to contact her at home despite specific directives not to do so, Joel Edward Malone (August
1996); and a male teacher who developed an overly personal relationship with high school student and
had sexual relations with the student after she turned age 18 but before she graduated from the school,
Richard W. Duerr (September 1996).

In the Matter ufMark Allen Leichty, OAH Case No. 128296

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ORDER

For the foregoing reasons, TSPC disagrees with the sanction proposed by the ALJ and
issues the following order:

1. Mark Leichty ’s teaching license is hereby revoked. He may apply for a teaching
license any time after one year of the date of revocation.

2. Any future application for a teaching license must include as part of the application
documentation that he has completed (at his own expense) an intensive education program
regarding appropriate boundaries with students, including sexual harassment education, such
program to be approved by the Commission. The training program shall consist of at least 12
hours, and the Commission shall be provided with a copy of the course outline and a report of
Leichty‘s successful completion of the program.

In the Matter ofMarkA/len Leichty, OAH Case No. 128296
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EXCEPTIONS
The amended proposed order is proposed by the TSPC. 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
465 Commercial Street NE
Salem OR 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 0fMarkAl/en Leichty, OAH Case No. 128296
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APPENDIX A
LIST 0F EXHIBITS CITED

Ex. A1: Report regarding Leichty, dated 12/9/2002

Ex. A2: Letter to Leichty from Heitho Reuter, Assistant Principal, North Albany Middle
School, dated 12/19/2002

Ex. A3: Handwritten statement by student AN, dated 2/ 16/2004

Ex. A4: Handwritten statement by student RK, dated 2/19/2004

Ex. A7: Supplemental Report, Albany Police Department, dated 4/19/2004

Ex. A9: Letter of Interest to Leichty from Heitho Reuter and Reuter‘s typed notes, dated
2/ 18/04

Ex. A10: Trmiscript of Tape Recording, Leichty interview, dated 2/ 18/2004

Ex. Al 1: Supplemental Report, by Detective Steve Dorn, Albany Police Department, dated
2/24/2004

Ex. A12: Supplemental Report, by Detective Jerry Drum, Albany Police Department, dated
3/2/2004

Ex. A13: Supplemental Report, by Detective Steve Dom, Albany Police Department, dated
3/2/2004

Ex. A14: Supplemental Report, by Detective Steve Dom, Albany Police Department, dated
5/3/2004

Ex. A15: Supplemental Report, by Detective Steve Dom, Albany Police Department, dated
6/28/2004

Ex. A16: Journal entries regarding AE, dated 4/8/2004

Ex. A18: Letter to Leichty from Pat Bedore, Superintendent, Greater Albany Public School
District 8], dated 5/11/2004

Ex. R30 Excerpts of Leichty's personnel file, Greater Albany Public Schools

Ex. R39: Reuter‘s notes and memoranda, dated 12/9/2002 to 12/19/2002

Ex. R40: Deposition of student AM, dated 6/25/2005

In the Matter ofMarkA/len Leichty, OAH Case No. 128296

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Ex. R41: Notice of Tort Claim (AR), dated 6/8/2004
Ex. R42: Complaint, dated 12/3/2004

Ex. R43: Amended Complaint, dated 12/ 16/2004
Ex. R46: Deposition of student AR, dated 7/19/2005
Ex. R48: Notice of Tort Claim (AE), dated 6/8/2004
Ex. R49 Deposition of student AE, dated 7/19/2005
Ex. R60 Deposition of student AN, dated 5/26/2005
In the Matter QfMark Allen Leichty, OAH Case N0. 128296

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