l
2 BEFORE THE TEACHER STANDARDS AND PRACTICES COMMISSION
3 OF THE STATE OF OREGON
4
5
6
7 In the Matter of the )
8 Teaching License of ) FINAL ORDER
9 )
10 ROBERT TIMOTHY FOWLER ) Case N0. 1 102323
1 1
12
13 On December 2, 2011, Administrative Law Judge (ALJ) Rick Barber issued a Proposed
14 Order in this case.
15
16 The Teacher Standards and Practices Commission adopts in its entirety the Findings of
17 Fact, Conclusions of Law and Order contained in the attached Proposed Order.
18
19
20 ORDER
21
22 The Commission adopts the Proposed Order in its entirety and suspends Robert Fowler’s
23 right to apply for a license for one (1) year.
24
25
26 Dated this [22% day of March 2012.
27
28 TEACHER STANDARD AND PRACTICES COMMISSION
29
30 r
31
32 B M)
33 lctoria C er Executive Director
34 Teacher Standards and Practices Commission
35
36
37
38
39 NOTICE: You are entitled to judicial review of this order. Judicial review may be obtained by
40 filing a petition for review within 60 days of the service of this order. Judicial review is pursuant
41 to the provision of ORS 183.482 to the Oregon Court of Appeal.
PAGE 1 —FINAL ORDER — ROBERT TIMOTHY FOWLER

flu
On March )9 , 2012, I mailed the foregoing Final Order and Proposed Order in OAH Case No.
1102323 to:
By: First Class Mail
Douglas E. Minger
Attorney at Law
541 Willamette Street, Suite 110
Eugene OR 97401
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 14o
Salem OR 97301
/l o
\J/y l I 1? a” I
/ "I [é] My)’
Melody anson \. '
Director o Professional Practices
PAGE l —CERTIFICATE OF MAILING — ROBERT TIMOTHY FOWLER

BEFORE THE OFFICE OF ADMINISTRATIVE HEARINGS
STATE OF OREGON
for the
TEACHER STANDARDS AND PRACTICES COMMISSION
IN THE MATTER OF: ) PROPOSED ORDER
)
ROBERT T. FOWLER ) OAH Case No. 1102323
) Agency Case No.
HISTORY 0F THE CASE

On February 9, 2011, the Teacher Standards and Practices Commission (TSPC, or the
Commission) issued a Notice of Opportunity for Hearing t0 Robert T. Fowler (Licensee). On
February 25, 2011, Attorney Douglas Minger requested a hearing on Licensee‘s behalf. On
April 28, 2011, TSPC referred the hearing request to the Office of Administrative Hearings
(OAH). Administrative Law Judge (ALJ) Rick Barber was assigned to preside at hearing. A
prehearing conference was held on June 20, 2011, and the matter was set for hearing for
November 8-10, 2011.

Hearing was held as scheduled on November 8, 2011, in Salem, Oregon.l Licensee
appeared and was represented by Mr. Minger. The Commission was represented by Assistant
Attorney General Raul Ramirez. The following were called as witnesses by the Commission:
Licensee, Principal Scott Maltman, and former student KS. The following were called as
witnesses by Licensee: Educational Assistant Dana Watts, Kathy Fowler (Licensee’s wife), and
Licensee. The record closed at the end of the hearing.

ISSUES

1. Whether Licensee committed gross neglect of duty in one or more 0f the
following particulars:

a. By giving personal notes and gifts to a female student, KS;

b. By snapping his fingers in KS’s face in the school hallway; or

c. By failing to report that KS had obtained his phone number and was making many
calls to hjrn.

2. Whether, if Licensee committed gross neglect of duty, his right to apply for
reinstatement of his license should be suspended for a year.

l Hearing lasted only one day.
In the Matter of Robert T. Fowler, OAH Case No. I 102323
Page 1 of 13

EVIDENTIARY RULINGS

Exhibits A1 through A4, offered by the Teacher Standards and Practices Commission,

were admitted into evidence.2 Exhibit Ll was also admitted into evidence.
CREDIBILITY FINDINGS

A witness testifying under oath or affirmation is presumed to be truthful unless it is
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.

The 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 credible. Tew v. DMV, 179 Or App 443 (2002).

In this case, there are three witnesses whose testimony requires some comment
concerning credibility or reliability, either based on my observations or because it was raised by
one side or the other.

Dana Watts. Ms. Watts is an educational assistant for the school district, and worked
with a group of students in Licensee’s science class that would meet during the period when KS
and AP would come to retrieve KS’s lunch from the refrigerator. It was clear from Watts’
testimony that her memory of the events was not good; her common response to most questions
was “my memory doesn’t serve rne well in this instance.” She vaguely remembered KS (her
memory refreshed by seeing her in the lobby outside the hearing), and she remembered her
“runway” walk, as Watts described it to Licensee. She vaguely remembered telling Principal
Maltrnan that some of the students considered Licensee “creepy.” She did not remember
Licensee having a lot of candy in his classroom all the time, or that he would give it out to the
students as rewards. She vaguely remembered being interviewed by Maltman after KS went to
him, but does not remember what she said to him.

I sensed no intent to deceive in Watt’s testimony, but her testimony at hearing was very
tentative. I asked if she was under the influence of medications because she took so long to
answer and did not have clear answers to the questions. She stated that she has a poor memory,
claiming it was a family trait.

For these reasons, while I accept Watts‘ statements recorded contemporaneously by
others in 2007 (set forth in the Findings of Fact), I do not accept her current recollections (more
than four years afler the fact) as reliable. For those reasons, Watts’ testimony is given little
2 Exhibit A4 was admitted into evidence over Licensee’s objection. The document was admitted because
if its impeachment value.

In the Matter of Robert T. Fowler, OAH Case No. 1102323
Page 2 0f l3

weight in this case.

KS. KS is now a college freshman, studying Business at a local university. She had a
relatively good recollection of the circumstances involving Licensee in 7‘h and 8"‘ grade, several
years earlier, but her recollections are not complete.

She specifically remembers bringing her sack lunch every day and putting it in
Licensee’s refrigerator. She would retrieve the lunch, along with her friend AP, who almost
always bought her lunch in the cafeteria/lunchroom. She remembered that Licensee began
leaving candy in her lunch bag, along with little notes like “Have a nice day,” either inside the
bag or stuck to the outside of it. She also remembered, upon questioning, that some of the notes
had been Harry Potter trivia questions.

KS testified that she stopped using Licensee’s refrigerator when AP and others told her
they thought it was strange for Licensee to constantly give her the notes and candy. She began to
avoid Licensee in approximately February, letting Watts and her friends know that she did not
want to see or talk to Licensee.

Although her testimony is credible, her recollection is not complete, as shown by a
comparison of her testimony to the contemporaneous record. In her testimony, she could not
remember ever talking directly to Licensee about leaving her alone. However, the statement she
gave to Taylor in June 2007 stated:

Sometime in March I yelled at him to quit sending notes in my locker, quit

leaving flowers. Mr. Fowler said “OK, whatever, are you OK”

(Ex. A2). I accept her contemporaneous comment to Taylor Over her current recollection, and
conclude that she did actually confront Licensee at some point in March 2007. Again, I find no
intent to deceive in this witness. She was approximately l4 years old at the time, and it is now
several years later. I find her testimony accurate as t0 What she does remember, and incomplete
in other areas, but I find her generally credible.

Licensee. Licensee’s credibility is the most troubling of all in this case because, by all
accounts, he was an excellent educator through his years of service in the school district. Even
in his interactions during the hearing, one can see why students would have enjoyed being taught
by him.

However, there are certain aspects of his testimony that simply do not make sense, and
are not believable. For instance, Licensee testified that his room and his refrigerator were
“stuffed with candy” that had been purchased with Student funds from the Environmental
Science course he had created. However, neither KS nor Watts remember there being large
amounts of candy or him using candy as rewards in his classes. His statements about the large
amounts of candy, arguably used to establish that giving candy to KS was not out of the
ordinary, is unsupported in the record.

Second, Licensee’s testimony is not believable when it comes to portions of the first long
In the Matter of Robert T. Fowler, OAH Case No. l 102323
Page 3 of l3

note he wrote to KS. Licensee’s note to KS contained the following phrases:

Dazed and confused but life’s a bitch. Daz turn to nights, without, without‘

(Ex. A3 at l). When asked about that phrase, and specifically whether it came from a song,
Licensee testified that he just made the words up. Yet, a song released just before these events
contains the following lyrics:

I’m a little dazed and confused,

Life’s a bitch and so are you.

All my days have turned into nights,

‘Cause living without, without, without you in my life.

(Ex. A4). It is quite clear that Licensee either heard this song or was familiar with the lyrics at
the time he wrote the note to KS in February or March. His testimony on this point is not
believable, and the comparison to the actual lyrics of the song is troubling. The song lyrics, as
well as other aspects of the note, suggest an attachment beyond professional boundaries.

Finally, when I asked him specific questions about whether he considered the notes to
have been too personal, in hindsight, he failed to answer the question. He was evasive in his
answers to this question when asked by the Commission’s attorney, and remained evasive when I
questioned him as well. For all of these reasons, I do not accept Licensee’s recollections 0f
events, and his testimony concerning his interactions with KS and others, to be accurate.

FINDINGS OF FACT

1. Licensee was a seventh grade science teacher at Boring Middle School during the
2005-06 school year, the 2006-07 school year, and for many years prior. School year 2006-07
was his last year of teaching; he planned to retire that year, and did retire. He was a very popular
teacher, and the students at the school decided to fete him with a retirement party. (Test. of
Licensee, Maltman).

2. KS was a seventh grader in 2005-06, and was a student in Licensee’s science
class that year. She and Licensee developed a good rapport. At the beginning of the next year,
when KS was an eighth grader, she asked Licensee if she could store her sack lunch in the
refrigerator in his classroom. Licensee agreed. KS would bring in her lunch before class every
morning, accompanied by her friend, AP. Licensee was sometimes in the classroom at that time,
but more often was at the front of the school, greeting students. At lunchtime (which was
“staggered,” meaning some went to lunch while others were still in class), KS and AP would
come in during a seventh grade science class to retrieve KS’s lunch. (Test. of Licensee, KS,
Watts). Dana Watts was an educational aide in that class, working with a group of students who
had some limitations. Watts often noticed that KS and AP would “saute” into the room, like they
were on a “runway.” She shared this observation with Licensee. (Test. of Watts, Licensee).

3. One time when KS and AP were retrieving KS’s lunch (AP usually bought her
lunch at school), Licensee heard them talking about Harry Potter, and the fact that the author had
In the Matter of Robert T Fowler, OAH Case No. 1102323
Page 4 0f l3

decided to split the final story into two books. They were wondering what would happen to
Harry in the final story. Shortly thereafter, Licensee found an article in the Oregonian that had
trivia questions about Harry Potter. He copied the trivia questions, and would put a “sticky” note
with a trivia question on KS’s lunch bag. Other times, he would put a short note, such as “Have
a good day” on her lunch bag. (Test. of Licensee, KS). Licensee had a nickname for KS, calling
her “Special K." (Test. of Licensee; Ex. A3 at l).

4. Early in the school year, some of Licensee’s seventh graders reported to Licensee
that KS and AP had gone behind his desk and stolen some candy. Licensee did not want to
embarrass KS or AP, and did not report the theft to the administrators of the school. Reasoning
that any candy he had in his classroom had been bought with student funds, he concluded that
KS and AP were technically entitled to some of the candy. He began to put candy in KS’s lunch
bag every day, along with a note. Later in the fall, he discovered several cans of soda pop
missing from the refiigerator and believed that KS and AP had taken them. He did not confront
them, 0r report them to the administration. (Test. of Licensee, KS).

5. Just before the school year began, the school held a “back to school” night.
Although KS and AP were eighth graders that year, they kept coming into Licensee’s classroom.
At one point, Licensee realized he had misplaced his phone. Later, it was returned to his desk,
with a new screensaver: a picture of KS and AP, laughing. From that point in August on, KS and
AP made prank phone calls to Licensee more than 100 times. Licensee did not know the content
of most of the calls or the voice messages left; he just erased most of them. (Test. of Licensee).
Licensee did not report the phone calls to the administrators. (Test. of Licensee, Maltman). On
some of the calls, Licensee would pick up and he and KS would talk about non-school-related
things. On one occasion, Licensee told KS about some investments he had in Macy’s. (Test. of
KS). One night, when Licensee was receiving the prank calls, his wife and then his daughter
answered the phone and told AP (who made that call) to stop calling Licensee. The calls did not
stop. (Test. of Licensee, Fowler).

6. After a few months, in late February or March, KS began to feel uncomfortable
about the notes and candy that Licensee was leaving for her every day. Her friend, AP, thought
it was strange, and KS began to hear comments from people in the lunchroom about the notes
and candy. As she began to feel more uncomfortable, she stopped bringing her lunch into
Licensee’s classroom. She told Watts and several classmates that she did not want to go back
into his classroom; she does not remember ever telling Licensee that directly. (Test. of KS). In
March, she finally told Licensee to leave her alone. (Ex. A2). Watts later told Maltman, during
the subsequent investigation, that some of the kids thought Licensee was “creepy.” (Test. of
Watts).

7. Licensee became aware that KS was avoiding him, when another student told him
that KS did not want to talk to him any more. Licensee decided to write a note to KS. The note
stated:

I hope you give me a chance to clear something up — Ms. Watts (Chit Chat

Woman) said you want nothing to do with me because of something I said or did

— that’s fine but you need to know that was never my intention. I have enjoyed
In the Matter 0f Robert T. Fowler, OAH Case No. 1102323
Page 5 of 13

you using the refrig-you even set the temp, early in the year — your coming in I
' called the “Runway walk”, the pudding, apples were always for you-I played
keepaway w/the spoons only for reaction — the Myspace/Yourspace Ithought to

be clever, not painful. The “what the heck” was only for you as well. I truly

thought you would read between the lines and see the humor. Your an

emotionally charged person, stubborn as a mule and full of pride, so I accept you
probably won’t ever speak to me again. Just [to] clarify, I want nothing. So I arn
surprized and crushed. Rumor is your leaving the school district. Rumor is I am

as well, maybe distance is what you want. I accept that as well. You seem sadder

now than earlier in the year. I don’t want to accept that, but that’s the brakes -

Dazed and confused but life’s a bitch. Daz turn to nights, without, without——

You’ll always be Special K—

Try [smiley face] there’s only a short time left in the year. Don’t be so angry.

You misinterpret with written words — the emotion is sometimes wrong, soy.

(Ex. A3 at l; emphasis in original). Licensee slid this note into KS’s locker through one of the
vents. (Test. of Licensee).

8. A song called “Bubble Wrap,” released on November 6, 2006, includes the
following lyrics:

I’m a little dazed and confused,

Life’s a bitch and so are you.

All my days have turned into nights,

‘Cause living without, without, without you in my life.

(Ex. A4).

9. When the same student told Licensee that KS still refused to talk to him, Licensee
wrote another note to KS, again putting it in her locker. He also taped a shamrock on her locker,
because the next day was St. Patrick’s Day. (Test. of Licensee). The note read:

Don’t be so sensitive — This school would n_0t be any fun w/u pissed off — I am

sorry and regret anything if it hurt your feelings — I won’t do it again — It was only

to be fun, I guess it wasn’t. Sooog girl
(Ex. A3 at 2; emphasis in original).

10. Someone, possibly another teacher, urged KS to report the notes she had received
to Principal Maltman, and she did so some time in June 2007, just before the end of the school
year. When Maltman met with KS, she gave him the two notes in her possession and said that
receiving them made her uncomfortable. Her discomfort was evident to Maltman, and he sent
her home with the promise to discuss it further the next day. Alter KS left, Maltman called the
district office to advise the Superintendent (who also handled all human resources matters) about
what he had heard. Maltman was directed to have the school counselor, Carey Taylor, interview
In the Matter of Robert T. Fowler, OAH Case No. l 102323
Page 6 of l3

KS, because Taylor is a woman and might obtain more complete information. Maltman also
spoke with Licensee and told him to have no contact with KS. (Test. of Maltman).

11. Taylor met with KS and received the following information from her:

Mr. Fowler was my favorite teacher (she had him last year as her 7lh grade

Science teacher), he let me keep my sack lunch in his classroom refrigerator. He

started leaving me candy and notes in my lunch. I didn’t think anything of it but

as it continued I started to feel uncomfortable. My friends saw it sometimes and

thought it was kinda weird. This happened from beginning of the year until late

February. On Halloween he left me a big bag of candy. Before the Winter Band

concert he left a bag of candy and a note about wearing my hair up at the concert.

I found a note in my locker from Mr. Fowler and it was weird. I didn’t know

what to think. It made me feel uncomfortable. He walked up to me in the hall

after he heard I was mad at him and he snapped his fingers in my face, I told him

not to touch me, he didn’t touch me. He never touched me or did anything.

In late Feb. I stopped putting my lunch in his room because I wasn’t comfortable

doing so. I think he was the one who [taped] a daffodil and four leaf clover on

my locker door. He may have had a student do it.

Sometime in March I yelled at him to quit sending notes in my locker, quit

leaving flowers. Mr. Fowler said “OK, whatever, are you OK”

I called him 0n his cell phone several times. He called me once and talked about

being locked out of his house, it was a weird conversation.

Since March I haven’t talked to him.

(Ex. A2).

12. On June 12, 2007, Superintended Salinas wrote to the Commission to state that
Licensee “may have been guilty of harassing a student and giving or exchanging overly personal
gifts or notes with a student.” (Ex. Al).

CONCLUSIONS OF LAW

1. Licensee committed gross neglect of duty in the following particulars:

a. By giving personal notes and gifts to a female student, KS;

c. By failing to report that KS had obtained his phone number and was making many
calls to him.

2. Licensee’s right t0 apply for reinstatement of his license should be suspended for
In the Matter of Robert T Fowler, OAH Case No. 1102323
Page 7 of l3

one year.
OPINION

The Commission contends that Licensee committed gross neglect of duty, and has the
burden to present evidence to prove its claim. ORS 183.4500). It must prove its case by a
preponderance of the evidence. Sobel v. Board of Pharmacy, 130 Or App 374, 379 (1994), rev
den 320 Or 588 (1995) (standard of proof under the Administrative Procedures Act is
preponderance of evidence absent legislation adopting a different standard). Proof by a
preponderance of the evidence 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).

In this case, the Commission has made three allegations against Licensee, contending that
all of them constitute gross neglect of duty:

0 During the 2006/2007 school year you gave personal notes and gifts to female
student KS. These gifts included candy and food items left with her lunch in the
refiigerator in your classroom. You also left personal notes and a flower or four-
leaf clover on KS’s locker. One of these notes asked KS to wear her hair up at the
Winter Band Concert.

0 Upon hearing that female student KS was upset with you, you approached her in
the hallways and snapped your fingers in her face.

' You reported that female student KS had obtained your cell phone number and
had called you on several occasions. You did not report this conduct to school
district officials.

(Doc. Pl). Each of these allegations will be addressed at length below.

Personal Notes and Gifts. The evidence is somewhat conflicting in this case concerning
the number of notes and gifts, and what they said; it is not in conflict as to the main point—
Licensee regularly gave notes and candy to KS by putting them in her lunch bag every day.
Many of the notes were simple greetings (“have a nice day”) and some were trivia questions
concerning the Harry Potter movies; some, if KS is to be believed, were more personal. For
instance, she testified that one of the notes suggested she wear her hair up for the Winter
Concert.

Licensee contends that the comment about wearing her hair up was an oral response to
KS’s question to him about how to wear her hair. He also contends that he gave KS (and AP)
candy because he had large amounts of candy in the refrigerator. However, this statement is not
corroborated by KS or by Watts, who would have been aware of large amounts of candy in the
classroom.

Although most of the daily notes were apparently thrown away, two longer notes from
Licensee to KS are in evidence. Quoted above, they corroborate KS’s evidence that Licensee
was sending notes to her.

In the Matter of Robert T. Fowler, OAH Case No. 1102323
Page 8 of l3

ORS 342.175 states in part:

Grounds for discipline; reinstatement. (l) 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 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:

* * * * *

(b) Gross neglect of duty;

Gross neglect of duty, in tum, is defined in the administrative rules. OAR 584-020-0040
states in part:

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

professional responsibilities. The following may be admissible as evidence of

gross neglect of duty. Consideration may include but is not limited to:

* >11 * >l= =l=

(n) Substantial deviation from professional standards of competency set forth in

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

(o) Substantial deviation from professional standards of ethics set forth in OAR

584-020-0035[.]

Thus, the question is whether Licensee deviated from his standards of competency and of ethics
in this case.

The Commission contends that Licensee: 1) failed to use professional judgment; 2)
demonstrated or expressed professionally inappropriate interest in KS’s personal life; and 3)
exchanged overly personal gifts 0r notes with KS.

I. Professional judgment. OAR 584-020-0010(5) requires the “Competent Educator” to
have a commitment to exercise professional judgment, but does not define the term. In my
analysis, the key question is whether the ongoing notes and candy, as well as the longer notes in
evidence, were something other than “professional.” The Commission contends the actions were
personal rather than professional, and I agree in part.

Licensee’s use of candy to reward his students, and an occasional encouraging note to a
student (or even a Harry Potter trivia question), would not necessarily go beyond the bounds of
an educator’s professional judgment. However, the daily provision of candy and notes to KS
went beyond the use of candy as a reward or an occasional encouraging note.

In the Matter of Robert T. Fowler, OAH Case No. 1102323
Page 9 of l3

I neither imply nor believe that Licensee was showing romantic interest in KS; the record
fails to show such an interest. However, personal interest need not be romantic. The daily gifts
and notes, and especially the two longer notes that are in evidence, show a personal interest that
exceeded professional judgment. This was further established, as will be discussed more
completely below, when Licensee failed to report to the administration the credible reports that
KS and AP had been stealing candy and soda pop from his classroom.

2. Professionally inappropriate interest. OAR 584-020-0035 states in part:

(1) The ethical educator, in fiilfilling obligations to the student, will:

* * * * *

(c) Maintain an appropriate professional student-teacher relationship by:

(A) Not demonstrating or expressing professionally inappropriate interest in a

student's personal life;

(B) Not accepting or giving or exchanging romantic or overly personal gifts or

notes with a student[.]

Licensee’s regnilar notes and gifts of candy, placed in KS’s lunch, ultimately made KS feel
uncomfortable. Other students, and apparently educators, thought it was strange for Licensee to
continually give the gifls to her.

When KS decided she did not want to talk again with Licensee, he decided to send a note
instead. When she still did not respond, he sent her a second note. Both were dropped into her
locker. The notes were overly personal, even including what Maltman considered an
unacceptable word,3 and made KS even more uncomfortable.

3. Overly personal gifts and notes. The rule quoted above also precludes the “Ethical
Educator” from giving a student overly personal gifts or notes. The two notes in evidence were
overly personal.

Therefore, I conclude the Commission has established gross neglect of duty in the giving
of notes and gifts from Licensee to KS.

Snapping the Fingers in KS’s Face. For the reasons set forth above, I have considered
KS’s testimony more credible than Licensee’s in this case. However, although KS testified that
there was an event where Licensee snapped his fingers in her face, the circumstances were not
clear from her testimony.

Even if Licensee did snap his fingers in front of KS’s face, the Commission has failed to
3 The longer note used the word “bitch,” not directed at KS, but still not an appropriate word for use with
a student. When Licensee was asked about this word at hearing, he replied (in jocular fashion) that it
depended on whether one was talking about a female dog.

In the Matter of Robert T. Fowler, OAH Case No. l 102323
Page 10 of l3

show that the action would be an attack on the worth and dignity of KS, or that it was a failure of
Licensee’s professional judgment.

One can picture a popular teacher such as Licensee walking past a student such as KS
and, when the student seemed oblivious, snapping his fingers in a humorous fashion as if to say,
“wake up!” There is no evidence, even from KS, that Licensee intended anything personal or
unprofessional by snapping his fingers.

Failure to Report Cell Phone Calls. The evidence establishes that KS and AP obtained
Licensee’s cell phone number early in their eighth grade year and made more than a hundred
“prank” calls to Licensee’s number. Licensee did not report the calls, or the students’ access to
his cell phone number, to the administrators.

The Commission relies upon OAR 584-020-0035(1)(c)(C) in this case. That subsection
requires an educator to report to a supervisor the reasonable belief that a student is becoming
romantically attached to the educator. This reliance is misplaced under the facts of this case,
although (because Licensee took very few of those phone calls) it is something he should have
been thinking of when deciding whether to report the actions to the administrators. The
Commission has failed to show a violation of OAR 584-020-0035(1)(c)(C).

Although I see no evidence of a romantic attachment on either side in this case, the
evidence indicates that Licensee’s failure to report the phone calls, among other things, showed a
lack of professional judgment on his part.

Licensee testified that he was told by his seventh grade students that KS and AP had
stolen candy from behind his desk in the classroom. He later observed that there were cans of
soda pop missing, and concluded that KS and AP had done it because of their access to his
refrigerator. Finally, believing that the girls had taken his phone off his desk and knowing that
they were making prank phone calls to him regularly, Licensee inexplicably refused to either
address the conduct with the students or report their actions t0 the Principal or other
administrators. When asked why, Licensee indicated they were “good kids” and he did not want
to get them into trouble.

Licensee did not exercise sound professional judgment when he refused to deal with
these obvious behavior issues of KS and AP. I conclude that his actions were a gross neglect of
duty.

The Appropriate Sanction. Licensee retired from his teaching position at the end of the
2007 school year, and his license expired in 2009. The sanction the Commission seeks in this
case is a one year suspension of the right to apply for a Teacher License. Under ORS 342.175,
quoted above, the Commission has the right to suspend the right to apply for a license.

The evidence in this case shows an otherwise excellent educator who has been shown to
have made lapses in judgment in his relationship with KS. Those lapses violated his
responsibilities as an Ethical Educator and as a Competent Educator. The Commission’s intent
to suspend his right to apply for one year is appropriate.

In the Matter of Robert T. Fowler, OAH Case No. 1102323
Page ll of l3

ORDER
I propose the Teacher Standards and Practices Commission issue the following order:
That the February 9, 2011 Notice of Opportunity for Hearing be MODIFIED. The
Commission failed to prove one allegation of gross neglect of duty, and failed to prove a
violation of OAR 584-020-0035(l)(c)(C) in this case, but the Notice is otherwise AFFIRMED.
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 Robert T. Fowler, OAH Case No. 1102323
Page 12 of l3

CERTIFICATE OF MAILING

On December 2, 2011, I mailed the foregoing Proposed Order issued on this date in OAH Case
No. 1102323.
By: First Class and Certified Mail
Certified Mail Receipt #7011 0470 0002 8820 2738
Douglas Minger
Attorney at Law
541 Willamette Street Suite 110
Eugene OR 97401
By: First Class Mail
Raul Ramirez
Assistant Attorney General
Department of Justice
1162 Court St NE
Salem OR 97301-4096

Lucy for Carol Buntj er
Administrative Specialist
Hearing Coordinator
1n the Matter of Robert T. Fowler, OAH Case No. l 102323
Page l3 of l3