BEFORE THE TEACHER STANDARDS AND PRACTICES COMMISSION
l'N THE MATTER OF: ) FINAL ORDER
)
DANIEL J. HIATT, )OAH Case N0.: 901312
RESPONDENT. )
HISTORY OF THE CASE

On August 26, 2009, the Teacher Standards and Practices Commission (Commission)
issued a Notice of Opportunity for Hearing to Daniel J. Hiatt (Respondent). On August 27,
2009, Respondent requested a hearing. On September 28, 2009, the Commission referred the
hearing request to the Office of Administrative Hearings (OAH). Administrative Law Judge
(ALJ) Stephen Elmore was assigned to preside at hearing.

On December 15, 2009, a pre-hearing telephone conference was held. ALJ Elmore
presided. Aruna Masih, attorney at law, represented Respondent. Assistant Attorney General
(AAG) Judith Anderson represented the Commission. Lynn Beaton appeared on behalf of the
Commission. On December l6, 2009, ALJ Elmore issued a letter setting forth the schedule for
hearing. On December 29, 2009, the case was reassigned to Senior ALJ Dove L. Gutman.

On February 23, 2010, a hearing was held in Salem, Oregon. ALJ Gutman presided. Ms.
Masih represented Respondent. Ms. Anderson represented the Commission. Ms. Beaton
appeared on behalf of the Commission. The following individuals provided testimony: C.J.
Easterling, Denise Easterling, Gary Carlton, Trevor Barratt, Steve Johnson, Daniel Hiatt, Rick
Hassrnann, Margaret Sturza, Evan Brown, Rory Oster, Mike Dennis, Austin Say, Caleb Pugh,
Rusty Clemons, Wayne Marshall, Anna Wallace, and Gavin Romanick. The record closed on
February 23, 2010.

ALJ Gutman issued a Proposed Order on April 7, 2010. The Commission issued an
Amended Proposed Order on June 15, 2010 that adopted the ALJ ’s findings of fact and
reasoning for Conclusions of Law (l ), but rejected the ALJ’s reasoning for Conclusions of Law
(2) and added 4 years probation to the ALJ’s recommended Public Reprimand. Licensee filed
exceptions to the Amended Proposed Order on June 297 2010. The Commission considered the
exceptions on August 6, 2010 during its meeting and finds them unpersuasive, with the exception
of a reference in the opinion section to CJ quitting the football team. The reference is amended
to reflect the language in Findings of Fact (13). For the foregoing reasons, the Commission
adopts the Amended Proposed Order, with this correction, as the Final Order.

ISSUES

1. Whether, on or about October 9, 2008, Respondent engaged in gross neglect of duty in
violation of OAR 584-020-0040(4)(n) as it incorporates OAR 584-020-0010(1) and OAR 584-
020-0010(5).

In the Matter of Daniel .l. Hiatt, OAH Case No. 901312
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2. Whether Respondent shall be disciplined by the Commission for his conduct. ORS
342.175, ORS 342.177.

EVIDENTIARY RULING

The Commission’s Exhibits A1 through A15 and Respondent’s Exhibits R1 through R38
were admitted into the record without objection.

CREDIBILITY DETERMINATION

A witness testifying under oath or affirmation is presumed t0 be truthful unless it can be
demonstrated otherwise. ORS 44.370 provides, in relevant part:

A witness is presumed to speak the truth. This presumption,
however, may be overcome by the manner in which the witness
testified, by the character of the testimony of the witness, or by
evidence affecting the character or motives of the witness, or by
contradictory evidence.

A determination of a witness’ credibility can be based on a number of factors other than
the manner of testifying, including the inherent probability of the evidence, internal
inconsistencies, whether or not the evidence is corroborated, and whether human experience
demonstrates that the evidence is logically incredible. Tew v. DM V, 179 Or App 443 (2002).

C.J. Easterling testified that Respondent made the following statement to him, “I should
get a rope and hang you with it.” Mr. Easterling’s testimony was logical, credible, and
corroborated in-part by the testimony of Caleb Pugh and Exhibits A1, A2, and A4.

Respondent, on the other hand, testified that he made the following statement to C.J., “l
should get a rope.” However, Respondent’s testimony was contradicted by the statements he
made to Steve Johnson and Gary Carlton during the investigation. Accordingly, Respondent’s
testimony will not be relied upon when it contradicts evidence presented by the Commission.

FINDINGS 0F FACT
Background

l. Respondent has been teaching for approximately 35 years. His record is exemplary.
Respondent’s evaluations have all been positive. He has met or exceeded expectations.
Respondent is respected by his colleagues and supervisors, and he gets along with students and
parents. Respondent’s reputation is tough but fair. He expects 110 percent. Respondent is a
good teacher. He cares about his students. Respondent has had a positive impact on staff,
students, and parents. He is a good mentor. Respondent has held fundraisers for school
equipment. He is respected in the community. Respondent has not previously received any
In the Matter ofDaniel J. Hiatt, OAH Case No. 901312
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complaints or disciplinary actions. (Test. of Hiatt, Hassman, Sturza, Brown, Oster, Clemons,
Marshall, Wallace, Romanick; Exs. R1-R7, R11-R20.)

2. During the period of August 29, 2001 through October 16, 2008, Respondent was
employed with the Jefferson County School District 509-J as the Physical Education (PE)
teacher and head football coach at Madras High School (MHS). Respondent also served as the
boy’s golf coach. (Test. of Hiatt; Exs. A7, R10.)

3. MHS has approximately 800 students of diverse ethnicity. MHS employs three PE
teachers. MHS does not employ any African Americans. (Test. of Carlton.)

4. C.J. Easterling is an l8-year-old senior student at MHS. He grew up in Madras,
Oregon, and is Afiican American. CJ enjoys athletics, including basketball and football. He is
outgoing, conscientious and well-adjusted. C.J. does not overreact to situations and does not get
into trouble. (Test. of Mrs. Easterling, Carlton, Johnson.)

5. In fall 2008, C.J. was a member of the MHS football team. (Test. of C.J. Easterling)
Incident

6. On October 9, 2008, C.J. informed Respondent that he was going to be late to football
practice because he had homework to finish with another teacher. The homework took longer
than C.J. thought it would. He arrived at the locker room afier football practice was over. (Id.)

7. As C.J. walked into the locker room, Respondent asked where he had been. C .J .
responded that he had been doing homework. Respondent then stated, “I should get a rope and
hang you with it.” C.J. said, “What?” Respondent repeated the statement. (1d.; Exs. A4 at 1-4,
R38 at l.)

8. There were four other students in the locker room who overheard Respondent make
that statement or something similar. (Ex. A4 at 1-4.)

9. C.J. was shocked and hurt by the statement. C.J. felt the statement was racially
motivated. (Test. of C.J. Easterling.)

10. Respondent was frustrated because C.J. had missed football practice. He did not
mean to hurt C.J. when he made the statement. Respondent did not intend to make a racially
motivated statement. (Test. of Hiatt.)

ll. That evening, C.J. informed Steve Johnson, the Athletic Director of MHS, about the
incident. C.J. admitted that Respondent made the statement in a joking manner. Mr. Johnson
indicated that he would address the issue with Respondent. C.J. also told his mother, Denise
Easterling, about the statement. Mrs. Easterling was very upset and could not sleep. (Test. of
Johnson, Mrs. Easterling; Ex. Al.)

In the Matter ofDanielJ. Hiatt, OAH Case No. 901312
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Investigation

12. On October 10, 2008, at 8:15 a.m., Mrs. Easterling and C.J. met with Gary Carlton,
Principal of MHS, and reported the incident involving Respondent. Also present were the two
Assistant Principals. Mrs. Easterling made a formal complaint against Respondent. Principal
Carlton initiated an investigation. (Test. of Carlton, Mrs. Easterling; Exs. Al at 1, R38.)

13. C.J. quit the football team, in part, because of the statement that Respondent made to
him. (Test. of C.J. Easterling.)

14. On October 10, 2008, at 10:15 a.m., Mr. Johnson, at the direction of Principal
Carlton, spoke with Respondent regarding the incident. Respondent admitted that he made a
statement to C.J. Respondent told Mr. Johnson that he said he “should take a rope and hang you
from the fence post.” Respondent said it was made in a joking manner, not meant to harm C.J.,
and not meant in a racial manner. (Test. of Johnson; Ex. A1.)

15. Respondent was suspended from coaching the football game that night and from
traveling with the team. Respondent took leave for the rest of the day. (Id.)

16. On October 10, 2008, at 11:35 a.m., Principal Carlton gave Respondent a ride to the
Redmond Safeway store where he had parked his car. On the way there, Respondent told
Principal Carlton that he was not a racial person, he liked C.J., and although he said, “I ought to
get a rope and hang you from a fence post,” it was a mistake and he was joking with C.J. (Exs.
A2, A5.)

17. Principal Carlton placed Respondent on paid administrative leave. (111.)

18. On October 14, 2008, Principal Carlton and Melinda Bryce, Human Resource
Director, held an investigative meeting with Respondent and his representative regarding the
incident. Respondent denied making a statement containing the words “fence,” “fencepost,” or
“hanging.” (Ex. A3.)

19. On October 15, 2008, Principal Carlton issued a Letter of Reprimand to Respondent,
finding the following:

. Respondent engaged in unprofessional conduct towards a student at MHS, which created

a hostile educational environment.

l On the evening of October 9, 2008, Respondent made an unprofessional and
inappropriate comment to C.J. Easterling.
o Multiple witnesses verified that the comment Respondent made was “I should take a rope
and just hang you.”
v Respondent’s conduct violated school board policies and State standards.
(Ex. A5.)
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20. On October 16, 2008, Respondent issued a letter of apology to C.J. and resigned as
head football and golf coach at MHS. (Exs. A6, A7.)

21. On October 20, 2008, Respondent returned to his teaching position at MHS. (Ex.
R28 at 2.)

22. On October 22, 2008, Rick Molitor, Superintendent of the Jefferson County School
District 509-], notified the Commission of the incident involving Respondent. (Ex. A8.)

23. On November 10, 2008, the Commission initiated an investigation. (Ex. A10.)

24. On March 12, 2009, Respondent’s teaching contract with Jefferson County School
District 509-] was renewed for two years. (Ex. R35.)

25. C.J. Easterling is currently taking classes from Respondent. (Ex. R37.)

26. Respondent deeply regrets his actions. (Test. of Hiatt.)

CONCLUSIONS 0F LAW

l. On October 9, 2008, Respondent engaged in gross neglect of duty in violation of OAR
584-020-0040(4)(n) as it incorporates OAR 584-020-0010(1) and OAR 584-020-0010(5).

2. Respondent should receive a public reprimand for his conduct and four years of
probation with the condition that he completes a cultural competency training program.

OPINION

The Commission contends that Respondent engaged in gross neglect of duty. The
Commission has the burden of proving by a preponderance of evidence that Respondent’s
conduct constituted gross neglect of duty. ORS 183.450(2), Reguero v. Teacher Standards and
Practices Commission, 312 Or 402, 418 (1991) (burden is on TSPC in disciplinary action); Cook
v. Employment Division, 47 Or App 437 (1980) (the standard in administrative hearings is
preponderance of the evidence). Proof by a preponderance of the evidence means that the fact
finder is convinced that the facts asserted are more likely true than false. Riley Hill General
Contractor v. Tandy Corp, 303 Or 390 (1987). As set forth below, the Commission has met its
burden.

Gross neglect of duty

OAR 584-020-0040 is titled “Grounds for Disciplinary Action” and provides, in relevant
part:
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(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 of

competency set forth in OAR 584-020-0010 through 584-

020-0030[.]

OAR 584-020-0010 is titled “The Competent Educator” and provides, in material part:

I The educator demonstrates a commitment to:

(1) Recognize the worth and dignity of all persons and respect for
each individual;

*****
(5) Use professional judgrnent[.]

As a competent educator, Respondent is required to recognize the worth and dignity of all
persons, demonstrate respect for each individual and use professional judgment.

On October 9, 2008, while in the locker room of MHS and in the presence of other
students, Respondent told C.J., “I should get a rope and hang you with it.” By making that
statement to an Afiican-American student, and in the presence of other students, Respondent
failed to recognize the worth and dignity of C.J.; failed to demonstrate respect for C.J.; and failed
to use professional judgment.

Accordingly, the Commission finds, by a preponderance of the evidence that Respondent
engaged in gross neglect of duty in violation of OAR 584-020-0040(4)(n) as it incorporates OAR
584-020-00100) and (5).‘

Discipline

The ALJ’s reasoning is set forth below in italics. The Commission contends that
Respondent should be disciplined for his conduct. Respondent contends that he has received
suflicient discipline from the Jeflerson County School District and should not receive any
additional discipline from the Commission. As set forth below, I agree with the Commission, but
propose that Respondent should receive a public reprimand only.

l I would have made the same finding had the statement been made to any student of any ethnicity.
In the Matter ofDanieI J. Hiatt, OAH Case No. 901312
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ORS 342.] 75 provides:

(I) The Teacher Standards and Practices Commission may
suspend or revoke the license or registration of a teacher or
administrator, discipline a teacher or administrator or suspend or
revoke the right of any person to apply for a license or registration
if the license, registrant or applicant has held a license 0r
registration at any time within five years prior to issuance of the
notice of charges under ORS 342. I 76 based on the following:
*****

(b) Gross neglect of duty[. ]

ORS 342.177 is titled "Hearing and decision on charges; notice” and provides, in
relevant part:

(3) The commission shall render its decision at its next regular
meeting following the hearing. If the decision of the commission is
that the charge described in ORS 342. 1 75(1) has been proven, the
commission may take any or all of the following disciplinary action
against the person charged:
(a) Issue a public reprimand.
(b) Place the person on probation for a period not to
exceed four years and subject to such conditions as the
commission considers necessary.
(c) Suspend the license or registration of the teacher or
administrator for a period not to exceed one year.
(d) Revoke the license or registration of the teacher or
administrator.

As indicated above, the Commission may discipline a teacher for gross neglect of duty.
In this case, after reviewing the record and taking into account the factors set forth in OAR 584-
020-0045, including Respondent ’s past performance, the fact that the behavior was an isolated
incident, the fizct that there is no likelihood of recurrence, the need for deterrence, the effect on
the school, and most importantly, the effect on the victim, I propose that Respondent receive a
public reprimand for his conduct.

The Commission accepts ALJ Gutman’s recommendation of a public reprimand, but
concludes that Respondent should also be subject to a 4-year period of probation. The victim,
C.J., was “shocked and hurt” by the comment, which he felt was racially motivated, and he quit
the football team after the incident, partially because of the statement made by Hiatt. The
In the Matter ofDanielJ. Hiatt, OAH Case No. 901312
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statement to C.J. was made in the presence of four other students. While there has been no
documented recurrence of this behavior, the Commission finds that probation will deter
Respondent from engaging in similar behavior in the future. The Commission therefore adds an
additional sanction of 4 years probation pursuant to ORS 342.1776) with the condition that
licensee complete cultural competency training and present verification of such training to the
cormnission prior to the end of the 4 year period of probation.
ORDER

Based on the foregoing, the Commission hereby imposes a Public Reprimand and four
(4) years of probation on Daniel Hiatt, subject to completion of cultural competency training
prior to the end of his probation.

_ w
It is so ordered this day of August, 2010
‘ ZZM 22M M1,’
.ctoria Chamber ain, Executive Director
. Teachers Standards and Practices Commission

You are entitled to judicial review of this final order. Judicial review may be obtained by filing a
petition for review within 60 days fiom the service of this order. Judicial review is pursuant to
the provisions of ORS 183.482 to the Court of Appeals
In the Matter ofDanielJ. Hiatt, OAH Case No. 901312
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On December /3 , 2010, I mailed the foregoing Final Order in OAH Case No. 901312.
By: First Class Mail

Aruna A. Masih

Attorney at Law

Bennett, Hartman, Morris & Kaplan, LLP
111 SW Fiflh Avenue, Suite 1650 ‘
Portland OR 97204-3627

Richard Molitor

Superintendent

Jefferson County School District 509]
445 SE Buff Street '

Madras OR 97741-1595 ‘
By: Shuttle

Judith Anderson

Assistant Attorney General

Department of Justice

1162 Court Street NE

Salem OR 97301-4096

Mel y Hans

Dire tor of Pr sional Practices

In the Matter ofDaniel .I. Hiatt, OAH Case No. 901312
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