BEFORE THE
TEACHER STANDARDS AND PRACTICES COMMISSION
STATE OF OREGON
IN THE MATTER OF: ) FINAL ORDER INCORPORATING
) PROPOSED ORDER
)

JENNIFER MARIE FERO ) OAH Case No.: 1102628

This matter came before the Teacher Standards and Practices Commission during
its public meeting on February 8, 2013. The Commission has considered the Proposed
Order along with written arguments and exceptions ﬁled by Licensee on November 26,
2012.

The Commission does not ﬁnd Licensee’s exceptions persuasive, and hereby
adopts the attached Proposed Order as the Final Order.

Now therefore, Jennifer Fero’s right to apply for licensure in Oregon is suspended
for thirty (30) days.

Vk/
L -\
It is so Ordered this I i day of February 20131
MM
Victoria Chamberlain, Executive Director,
Teacher Standards and Practices Commission

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 the service of this order.
Judicial review is pursuant to the provision of ORS 183.482 to the Oregon Court of
Appeals.
In the Matter of Jennifer Marie Fero
Page 1 of 2 ‘

l
On February /5 , 2013, I mailed the foregoing Final Order Incorporating Proposed
Order in OAH Case No.1 102628.

By: First Class Mail

Thomas K. Doyle

Attorney at Law

Bennett, Hartman, Morris & Kaplan, LLP
210 SW Morrison Street, Suite 500
Portland OR 97204-3149

Carole Smith

Superintendent

Portland Public School District

PO Box 3107

Portland OR 97208

By: Shuttle

Raul Ramirez

Senior Assistant Attorney General
Department of Justice

1162 Court Street NE

Salem OR 97301-4096

Hearings Coordinator

Office of Administrative Hearings

4600 25"‘ Avenue NE, Suite 140 .
Salem OR 97301 '
Melo Hanso

Direc or of Pro onal Practices

In the Matter 0f Jennifer Marie F ero

Page 2 of 2 v

BEFORE THE OFFICE OF ADMINISTRATIVE HEARINGS
STATE OF OREGON
for the
TEACHER STANDARDS AND PRACTICES COMMISSION
IN THE MATTER OF: ) PROPOSED ORDER
)
JENNIFER M. FERO ) OAH Case No. 1102628
)
HISTORY OF THE CASE

On July 7, 2010, the Teacher Standards and Practices Commission (TSPC, or the
Commission), issued a Notice of Opportunity for Hearing to Jennifer M. Fero (Respondent). On
July 14, 2010, Respondent requested a hearing.

l On December 29, 2011, the Commission referred the hearing request to the Ofﬁce of
Administrative Hearings (OAH).l Administrative Law Judge (ALJ) Rick Barber was assigned t0
preside at hearing. A prehearing conference was held on February 16, 2012, and the case was
initially set for hearing for July 31, 2012. The case was later moved t0 September 24 and 25,
2012.

Hearing was held as scheduled on September 24 and 25, 2012, in Salem, Oregon.
Respondent appeared and was represented by Attorney Tom Doyle. The Commission was
represented by Assistant Attomey General Raul Ramirez. TSPC called the following witnesses:
Respondent; former Portland Public Schools (PPS) Legal Counsel Maureen Sloane; and school
Principal Brenda Fox. Respondent testiﬁed on her own behalf and also called former PPS
administrator John Wilhelmi as a witness. The record closed on September 25, 2012.

ISSUES

1. Whether Respondent reported for work under the inﬂuence of cocaine, thereby
committing gross neglect of duty.

2. Whether Respondent knowingly providing false information to the Commission,
thereby committing gross neglect of duty.

3. Whether, if Respondent committed gross neglect of duty, her right to reapply for
licensure in Oregon should be suspended for 30 days.

I The case had been referred to the OAH in September 2010, and the parties believed they had reached a
stipulated settlement in the case. The case was re-referred when the settlement fell through.

In the Matter of Jennifer M Fero, OAH Case No. 1102628

Page 1 of 9

EVIDENTIARY RULING

Exhibits A1 through A16, offered by the Commission, and Exhibits l through 12, offered

by Respondent, were admitted into evidence without objection.2
FINDINGS OF FACT

l. Respondent was licensed as an educator in Oregon from 1997 until her license
expired on November 13, 2010. From 2003 to 2006, she was an Assistant Principal at Roosevelt
High School in Portland. During the 2006-07 school year, Respondent was on special

l assignment with Portland Public Schools (PPS). During the 2007-08 school year, she was
Assistant Principal at Binnsmead Middle School, also in Portland. (Ex. Al l).

2. During Respondent’s last year at Roosevelt, there was a bomb threat at the school.
The bomber indicated the bomb would be detonated unless Respondent gave up her life instead.
There was no explosion and no loss of life, but Respondent suffered emotional trauma and ﬁled a
workers’ compensation claim as a result of the event. To help her deal with the emotional
trauma, PPS reassigned Respondent to a special project for one year. Respondent considered the
assignment a demotion and outside her skill set, because she was not allowed to interact with
students or other educators. (Ex. A11; Test. of Respondent).

3. Respondent began working at Binnsmead during the summer of 2007, preparatory
to the 2007-08 school year. She began a leave of absence (LOA) in September because her
mother was ill and needed her care. Respondent retumed to school and worked most of the
month of October and part of November 2007, but again went on family leave when her
mother’s condition worsened and her father was diagnosed with pancreatic cancer. (Test. of
Respondent).

4. Respondent was living with her boyfriend, a Portland lawyer, and began using
cocaine recreationally in August 2006. She obtained the drug from him and, occasionally, from
other sources. Her initial use was sporadic, on weekends. Later, in November 2007, her use
became regular. At the end of November 2007, Respondent realized she had used cocaine every
day of that month. Between August 2006 through November 2007, Respondent did not ingest
cocaine while at work or before work on school days. When her cocaine use increased to every
day in November 2007, she would ingest the cocaine in the early evening, after work, so that she
would have time to “come down” before working the next day. Ingesting cocaine at school, or
coming to school under the inﬂuence was “a line I did not cross.” Respondent noted that the
drug addiction was growing in influence, but (due to her personality) she was “very controlled in
how I lost control.” (Test. of Respondent).

5. At the end of November 2007, when Respondent realized that her cocaine use had
increased dramatically, she checked herself into the Hazelden facility to address her cocaine
addiction. On December 12, 2007, Respondent leﬂ Hazelden early because her mother had only
days to live. Respondent’s grandmother died on December 21, 2007, and her mother died two
2 Respondent initially objected to Exhibit A2 unless the author was going to attend the hearing. Because
the author, Ms. Fox, testiﬁed, I considered the objection withdrawn.

In the Matter of Jennifer M Fero, OAH Case No. 1102628
Page 2 of 9

days later. Respondent used cocaine one more time, on December 15, 2007. She did some
research to ﬁnd a rehabilitation facility that was away from her boyfriend and others, and chose
the Narconon program in Atlanta, Georgia. She graduated from the program in May 2008. In
the early part of the program, Respondent’s father also passed away. (Ex. Al 1).

6. In late December 2007 or early January 2008, Respondent advised the school
district that she would not be returning to school that year, and switched her leave from family
medical leave to personal leave due to drug addiction. (Ex. A11). On January 9, 2008, PPS
contacted the Commission and stated in part:

Based on information we have received, we believe that Jennifer Fero has

violated the standards expected of an Assistant Principal by reporting to work

under the inﬂuence 0f cocaine.

(Ex. A7). PPS was already aware of Respondent’s drug use because she had told an examining
doctor in her workers’ compensation case that she had begun using cocaine in August 2006. (Ex.
1 A6).
l

7. PPS based its conclusion that Respondent had reported to work under the
inﬂuence of cocaine based upon her behaviors at work. Brenda Fox, the Principal at Binnsmead,
kept notes concerning her observations of Respondent. Fox observed the following behaviors,
among others, by Respondent:

o On August 10, 2007, Respondent was late for an AYP meeting, and was not
prepared for it.

0 On August 15, 2007, Respondent left the PPS Leadership Academy meetings at
lunchtime, complaining of sinus pain, and did not retum that day.

0 On August I6, 2007, Respondent complained to Fox that the dentist she had seen
the day before would not prescribe Vicodin for her. Respondent told Fox (over
the phone during a session of the Leadership Academy), that she was in the
parking lot “ﬁghting demons.”

v Respondent fell asleep during a meeting on August 22, 2007.

0 On September 5 through 7, 2007, Respondent was frustrated when another
employee’s ﬂower bouquet was larger than hers, and she was vocal about it;

0 One of Respondent’s coworkers asked Fox if Respondent was on drugs;

0 On November 8, 2007, Respondent called Fox and said she was “F ed up” and
was wondering what her life would be like if the problem with the student at
Roosevelt had never happened.

(Ex. A2). Some of the notes were written contemporaneously, and some of them were written
after the fact. (Test. of Fox). When Fox and others with PPS later heard that Respondent was
addicted to cocaine, they formed the belief that Respondent’s observed behaviors were due to
cocaine use. (Test. of Sloane).

8. Respondent was bom in Korea, and was abandoned at birth by her biological
parents in Korea. Her American parents adopted her at about four months and brought her to the
In the Matter of Jennifer M Feru, OAH Case No. 1 102628
Page 3 of 9

United States. She has psychological residuals from her abandonment as an infant, and they
were worsened with the illnesses and subsequent deaths of her adoptive parents. She had an
overwhelming desire to succeed as an educator. (EX. A6). The preexisting psychological issues

‘ were made worse by the results of the bomb incident at Roosevelt. (Ex. A6; Test. of
Respondent).

9. Respondent entered the Narconon Program in Georgia in January 2008. Shortly
thereafter, her father died. Respondent left Narconon brieﬂy to attend to his passing, then
returned to Georgia and completed the program. She has been abstinent of cocaine since
December 15, 2007. (Test. of Respondent).

10. Respondent began working as an administrator in Georgia in 2008, and has been
successfully employed since that time. (Test. of Respondent).

11. On October 15, 2008, Respondent was interviewed by the Commission’s
investigator. Asked when she had begun consuming cocaine, Respondent replied: “That was last
year in the Fall, during that leave of absence.” (Ex. A11). The investigator asked Respondent
for a written statement, which she provided on November 20, 2008. In that statement,
Respondent wrote:

I used cocaine while on a Leave of Absence from my employer, Portland Public

Schools. I was on Leave many times in 2007[.]

* * * * *

I take full responsibility for the temporary misjudgment of using cocaine in 2007.

(Ex. A12). Respondent knew at the time she spoke to the investigator and provided the written
statement that her cocaine use had started earlier than she admitted. (Test. of Respondent).
CONCLUSIONS OF LAW

1. Respondent did not report for work under the inﬂuence of cocaine.

2. Respondent knowingly providing false information to the Commission, thereby
committing gross neglect of duty.

3. Respondent’s right to reapply for licensure in Oregon should be suspended for 30
days.

OPINION

The Commission contends that Respondent’s right to reapply for licensure should be
suspended for 30 days because she committed gross neglect of duty. TSPC has the burden to
establish that Respondent committed gross neglect of duty. ORS 183.450(2). It must prove its
case by a preponderance of the evidence. Sobel v. Board 0f Pharmacy, 130 Or App 374, 379
In the Matter of Jennifer M Fem, OAH Case N0. 1 102628
Page 4 of 9

(1994), rev den 320 Or 588 (1995) (standard of proof under the Administrative Procedures Act is
preponderance of evidence absent legislation adopting a different standard). Proof by a
preponderance of the evidence means that the fact ﬁnder is persuaded that the facts asserted are
more likely true than not. Riley Hill General Contractor v. Tandy Corp, 303 Or 390 (1987).
The Commission’s Allegations. TSPC contends that Respondent committed gross
neglect of duty in two instances: coming to work under the inﬂuence of cocaine, and providing
knowingly false information to TSPC concerning her cocaine use.
1 ORS 342.175 states in part:
l Grounds for discipline; reinstatement. (1) The Teacher Standards and Practices
Commission may suspend or revoke the license or registration of a teacher or
1 administrator, discipline a teacher or administrator or suspend or revoke the right
‘ of any person to apply for a license or registration if the licensee, registrant or
‘ applicant has held a license or registration at any time Within ﬁve years prior to
issuance of the notice of charges under ORS 342.176 based on the following:
it it i: a‘: i:
(b) Gross neglect of duty[.]
OAR 584-020-0040(4) further deﬁnes gross neglect of duty. The rule states in pertinent 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 0f
gross neglect of duty. Consideration may include but is not limited to:
* * * * *
(c) Knowing falsiﬁcation of any document or knowing misrepresentation directly
related to licensure, employment, or professional duties;
* * * >l< *
(g) Appearing on duty or at any district-sponsored activity while under the
inﬂuence of alcohol or any controlled substance;
*****
(n) Substantial deviation from professional standards of competency set forth in
OAR 584-020-0010 through 584-020-0030;
Working under the inﬂuence of cocaine. The Commission contends that Respondent
reported to work under the inﬂuence of cocaine and that she was guilty of gross neglect of duty
as a result. The Commission has failed to prove its case. l
In the Matter of Jennifer M Fero, OAH Case No. 1 102628
Page 5 of 9

The evidence to establish that Respondent came to work under the inﬂuence of cocaine is
circumstantial at best. Principal Fox kept notes of some of Respondent’s behaviors during the
summer and fall of 2007. Some of the notes were contemporaneous of the events reported;
others were written after the fact. Respondent demonstrated some inconsistent behaviors during
2007, and ultimately admitted she had been using cocaine since August 2006 and was going into
drug rehabilitation. PPS believed the behaviors and the cocaine use were connected and
therefore apprised the Commission that Respondent may have been working under the inﬂuence
of cocaine.

However, the Commission has not presented any direct evidence of cocaine use at work
or of behaviors at work that can be attributed to cocaine use on a more probable than not basis.
There is no expert medical evidence to show what being under the inﬂuence of cocaine at work
would entail.3 There are no tests showing that cocaine was in Respondent’s blood stream while
at work. No expert evidence was presented to show how long the effects of cocaine (taken the
night before) would impair the user, or whether it would impair the user at all. The Commission
has not shown that Respondent was under the inﬂuence of cocaine while at work.

Respondent’s evidence on this issue also bears some comment. Respondent testiﬁed that
she began using cocaine recreationally in August 2006 and progressed to the point where, by the
end of November 2007, she had used every day that month. Respondent testiﬁed that she would
consume cocaine early in the evening, after her work was done, so that she could “come down”
from the drug in time to go to work the next day. She categorically denied ever using cocaine at

t school, or on breaks or lunches during the school day, on or off premises.
l
1

Thus, the evidence shows a worsening addiction to cocaine over a period of l5 months,
but also shows that Respondent was trying to control the addiction. In her words, she was “very
controlled in how I lost control.” (Test. of Respondent). As she began to see herself losing
control of the cocaine use, she sought treatment by her own choice. Claimant’s testimony, which
I consider credible, does not establish that she was not under the inﬂuence of cocaine while at
work. It does establish that she intended to keep her cocaine use as far from the school and her
work as possible.

Thus, although I accept Respondent’s testimony that she did not use at school or before
school, it is not clear whether she was “under the inﬂuence” at school. However, remembering
the Commission’s burden of proof, the Commission has failed to show that Respondent appeared
on duty under the inﬂuence of cocaine.

Making a knowingly false statement. Respondent began using the drug in August 2006
and failed to admit that fact to Ms. Tucker. At hearing, Respondent admitted that her comments
to Investigator Tucker were false, and the record bears that out.

Respondent testiﬁed that she believed Ms. Tucker’s questions had to do with when she
3 Exhibits A14 through A16 are Internet articles describing some of the effects of cocaine intoxication.
They do not address the question whether Respondent’s behaviors, as reported, might have been due to
her psychological conditions or the obvious grief she was suffering watching her parents become ill and
eventually die. The Internet articles are generally helpful but, without expert evidence to show their
application to this case, they do not address the speciﬁc issues in this case.

In the Matter of Jennifer M Fero, OAH Case No. l 102628
Page 6 of 9

became “addicted” to cocaine, and she was not sure she was addicted before she found herself
using every day in November 2007. However, at one point in the interview Ms. Tucker asked
Respondent when she began “consuming” cocaine, and Respondent replied: “That was last year
in the Fall, during that leave of absence.” (Ex. Al l). That statement, as Respondent admitted,
was knowingly false.

Based upon Respondent’s admission, the Commission has shown that she made a
knowingly false statement to the investigator. Respondent’s actions violated the Commission’s
rules, and constituted gross neglect of duty.

The appropriate sanction. Respondent is no longer licensed in the State of Oregon,
having let her license lapse in 2010 because of her intent to stay in her current career in Georgia.
Therefore, What the Commission seeks in this case is a 30-day suspension of the right to reapply
for licensure in Oregon.

Although admitting that she violated the Commission’s rules in one instance, Respondent
seeks leniency from the Commission presumably because of the potential effect of Oregon
discipline on her licensure in Georgia. Respondent seeks a Letter of Reprova], a less formal
means of discipline that might not have an impact on her Georgia licensure.

The Commission responds that the Ofﬁce of Administrative Hearings does not have the
authority to compel a Letter of Reproval as the appropriate sanction in the case. The
Commission further contends that the importance of the decision in Oregon is to deter not just
Respondent but others from giving false information to the Commission. I agree with the
Commission.

Respondent made choices in 2006 and 2007 that led to a cocaine addiction. She
additionally suffered the horrendous loss of two parents and a grandparent While she was
grappling with her addiction, and has also had to overcome the trauma of her experiences at
Roosevelt High School. In spite of all of those things, Respondent has sought out the help she
needed and has become, by all reports at hearing, an excellent administrator in her Georgia
school district.

However, the Commission also has the responsibility to deter other educators from
making the same error that Respondent made in this case. Therefore, although it is sincerely
hoped that the discipline in Oregon will not impact an excellent career in Georgia, the suspension
is appropriate.

In the Matter of JenniferM Fero, OAH Case No. 1 102628
Page 7 of 9

ORDER
I propose the Teacher Standards and Practices Commission issue the following order:
That the July 7, 2010 Notice of Opportunity for Hearing, as modiﬁed to ﬁnd that the
Commission failed to prove that Respondent was under the inﬂuence of cocaine at work, be
AFFIRMED AS MODIFIED.
Rick Barber
Administrative Law Judge
Ofﬁce of Administrative Hearings
EXCEPTIONS
The proposed order is the Administrative Law Judge's recommendation to the Teacher
Standards and Practices Commission. If you disagree with any part of this proposed order, you
may ﬁle written objections, called "exceptions," to the proposed order and present written
argument in support of your exceptions. Written argument and exceptions must be ﬁled within
fourteen (l4) days after mailing of the proposed order with the:
Teacher Standards and Practices Commission
250 Division 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 of Jennifer M Fero, OAH Case No. l 102628
Page 8 of 9

= CERTIFICATE OF MAILING
On November 8, 2012, l mailed the foregoing Proposed Order issued on this date in OAH Case
No. l 102628.
By: First Class and Certiﬁed Mail
Certiﬁed Mail Receipt # 7011 0470 0002 8827 8733
Thomas Doyle
Bennett Hartman Morris & Kaplan LLP
210 SW Morrison St Ste 500
Portland OR 97204-3149
By: First Class Mail
Jeff Van Laanen
Teacher Standards & Practices Commission
250 Division Street NE
Salem OR 97301
Raul Ramirez
Senior Assistant Attorney General
Department of Justice
l 162 Court St NE
Salem OR 97301-4096
Carol Buntjer
Administrative Specialist
Hearing Coordinator
In the Matter of Jennifer M Fero, OAH Case No. 1102628
Page 9 of 9