, j I
BEFORE THE TEACHER STANDARDS AND PRACTICES COMMISSION
' 0F THE STATE OF OREGON
In the Matter of the Application for a )
Teaching License of: ) FINAL ORDER
)
MICHAEL LYNN STARK ) Ofiice of Administrative
) Hearings Case No. 127036
On August 29, 2006, Administrative Law Judge Alison Greene Webster issued a
Proposed Order in this case. On August 30, 2006, a Corrected Proposed Order was
issued.
The Teacher Standards and Practices Commission adopts the Findings of Fact,
Conclusions of Law and sanction contained in the attached Corrected Proposed Order.
am
’ The Commission adopts the Corrected Proposed Order denying the application of
Michael Lynn Stark for an Oregon teaching license.
Dated this t5 day ofNovember 2006.
TEACHER STANDARDS AND PRACTICES COMMISSION
Byzg Z @é W (4
ictoria C , Executive Director
NOTICE: If you are dissatisfied with this Order you may not appeal it until you
have asked the agency to rehear the case or to reconsider the Order. To obtain agency
rehearing or reconsideration you must file a petition for rehearing or reconsideration
pursuant to OAR 584-019-0045 within 60 days from the day this Order was served on
you. If this Order was personally delivered to you, the date of service is the day you
received the Order. If this Order was mailed to you, the date of service was the day it
was mailed, not the day you received it. If you do not file a petition for rehearing or
reconsideration within the time limits provided, you will lose your opportrmity for
rehearing or reconsideration and you will lose your right to appeal to the Oregon Court of
. Appeals.
Page l — FINAL ORDER—Michael Lynn Stark

' If, afier you have filed a petition for rehearing or reconsideration, the agency
issues an Order that you are dissatisfied with, you have a right to appeal that Order to the
Oregon Court of Appeals pursuant to ORS 183.482.

If, 60 days afler you have filed a petition for rehearing or reconsideration, the
agency has not issued an Order, your petition will be considered denied and at that time
you will have the right to appeal the original Order to the Oregon Court of Appeals
pursuant to ORS 183.480 and ORS 183.482. To appeal you must file a petition for
judicial review with the Court of Appeals within 60 days fi'om the day that your petition
for rehearing or reconsideration is deemed denied. If you do not file a petition for
judicial review within the 60-day time period, you will lose your right to appeal.

Page 2 ~ FINAL ORDER—Michael Lynn Stark

~ ‘ "wit: #111.
. REL-ENED
BEFORE THE OFFICE OF ADMINISTRATIVE HEARINGS AUG 3 1 2905
. STATE 0F OREGON Teacher Skintimds {a
f0!‘ the Practices Commtssmn
TEACHER STANDARDS AND PRACTICES COMMISSION
IN THE MATTER OF THE APPLICATION ) CORRECTED PROPOSED ORDER
FOR A TEACHING LICENSE OF )
)
MICHAEL LYNN STARK, )OAH Case No. 127036
Applicant )
HISTORY OF THE CASE
On September 28, 2005, Michael Lynn Stark submitted an Application For Educator
License Form C-l to the Teacher Standards and Practices Commission (TSPC). On December 2,
2005, TSPC issued a Notice of Denial of Teaching License and Opportunity for Hearing. TSPC
alleged that Applicant failed to fumish satisfactory evidence of good moral character necessary
to establish fitness to serve as an educator. Specifically, TSPC alleged that Applicant engaged in
criminal behavior and that he misrepresented facts in regard to his arrest. TSPC proposed to
deny the license under OAR 584-020-0040(4)(c) and (5)(e), and OAR 584-050-0006(1) and (5).
Applicant timely requested a hearing.
. On March 13, 2006, TSPC referred the hearing request to the Office of Administrative
Hearings (OAH). Administrative Law Judge (ALJ) Alison Greene Webster was assigned to
preside at hearing.
A hearing was held on August 1, 2006, in Salem, Oregon. Applicant Stark appeared with
counsel, Lindsay Fowler. TSPC was represented by Assistant Attorney General Matthew
Donohue. The following witnesses testified on TSPC's behalf: Officers Robert Hart and Rachel
Schacht of the Eugene Police Department and Susan Nisbet, TSPC Investigator. Applicant
Michael Stark testified on his own behalf. The record closed at the conclusion of the hearing on
August 1, 2006.
ISSUES
1. Whether Applicant engaged in criminal behavior, prostitution, in Eugene, Oregon, on
August l8, 2004.
2. Whether Applicant misrepresented the facts leading to his arrest for prostitution in
connection with his application for an Oregon educator license.
3. Whether TSPC has grounds to deny Applicant licensure under ORS 342.143, OAR
584-050-0006(1) 0r (5) and 584-020-0040(4)(c) or (5)(e).
In the Matter of Michael Lynn Stark, OAH Case No. 127036
Page l 0f 9

EVIDENTIARY RULINGS
Exhibits A1 to A4, offered by TSPC, were admitted into the record without objection. '
FINDINGS OF FACT
l. On August 18, 2004, Applicant Michael Stark was arrested for prostitution in
violation of the City of Eugene Code, Section 4.745(1)(b).1 (Ex. A1 at 5.) At the time of his ~
arrest, Applicant was a graduate studentin the teaching program at Pacific University in Eugene.
(Id. at 3.)
2. On the afiemoon of August 18, 2004, Applicant was driving his car in the area of 6th
and Polk Streets in Eugene, Oregon when he noticed a woman walking westbound on the south
side of 6th. The woman was Eugene Police Officer Rachel Schacht. At the time, Officer
Schacht was dressed in plain clothes (shirt, shorts and running shoes) and working as a prostitute
decoy. Applicant circled the block and, when he carne back around, found Officer Schacht
walking eastbound on 6th towards Tyler Street. Applicant turned onto Tyler Street and stopped
his car along the curb. Officer Schacht and Applicant made eye contact from across the street.
Applicant nodded his head, and Officer Schacht approached his car. He already had his driver's '
side window rolled down. Officer Schacht told Applicant that she "needed to make some
money." Applicant offered to help her out and advised that he had $24. Officer Schacht asked
Applicant what she had to do for the $24. Applicant responded, "Give me head and let me play
with your titties." Officer Schacht then asked Applicant to meet her in the alley on W. 5th
between Tyler Street and Van Buren. Applicant agreed to do so. Officer Schacht walked away .
from Applicant's vehicle. She gave a prearranged signal to other officers participating in the
prostitution sting to indicate that a prostitution deal had been made. (Test. of Schacht; Ex. A3.)
3. As Applicant pulled away from the curb and turned east on W. 5th toward Van Buren,
uniformed officers pulled in behind him. Officer Hart stopped Applicant at W. 5th and Blair.
Officer Hart contacted Applicant and requested his driver's license. As Applicant retrieved his
license, Officer Hart told him that he had been stopped because of the woman he had just been
talking with on Tyler St. Applicant appeared very nervous, and was hesitant to talk with Officer
Hart. Officer Hart told Applicant to step out of the car. Applicant did so. Officer Hart placed
him in handcuffs and read him the Miranda rights. Officer Hart explained to Applicant that if he
was cooperative and willing to talk about what had happened with Officer Schacht, he would be
cited and released. Officer Hart further explained that if Applicant was uncooperative, he would
go to jail. (Test. of Hart; Ex. A4.)
4. Officer Hart asked Applicant about his encounter with the woman on Tyler St.
Applicant said he was "going to help a homeless girl." Applicant then said, "I think I should . . ."
but did not complete the thought in an audible voice. During the stop, Officer Hart was advised
1 Section 4.745(1)(b) of the Eugene Code provides: "A person commits the crime of prostitution if: * "‘ *
the person pays or offers or agrees to pay a fee to engage in sexual conduct or sexual contact." The
section further defines "sexual contact" as "any touching of the sexual organs or other intimate parts of a
person not married to the actor for the purpose of arousing or gratifying the sexual desire of either party." .
Section 4.745(2)(c).
In the Matter of Michael Lynn Stark, OAH Case No. 127036 -
Page 2 of 9

via cell phone that Applicant had offered Officer Schacht $24 for a “blow job" and to fondle her
' breasts. Officer I-Iart asked Applicant if he had offered $24 in exchange for a "blow job."
Applicant replied, "Yeah." Applicant also consented to a search of his pockets and his car.
Officer Hart found $24 in Applicant's pocket. Applicant was cited for prostitution and released.
(Test. of Hart; Ex. A4.)
5. Applicant appeared in the Eugene Municipal Court on the prostitution charge on or
about September 1, 2004. He pled not guilty and paid $50 bail. He paid an additional $50 bail
0n September 28, 2004. The matter was set for trial December 9, 2004. On that date, Applicant
paid the court another $300, and the city prosecutor dismissed the charges against him. (Ex. A1
at 6-8.)
6. 'On October 31, 2005, Applicant submitted an Application for Educator License Form
C-l, with attachments, to TSPC. In the application, Applicant answered "Yes," to Character
Question No. 8, which asks: "Have you ever been convicted or granted a conditional discharge
by any court for: (a) any felony; (b) misdemeanor; or (c) any major traffic violation * * *." (Ex.
Al at 4.) In a letter attached to his application, Applicant disclosed that he had been charged
with the offense of prostitution on August 18, 2004. He explained that his attorney "made
arrangements with the District Attorney to have the charges against me dropped in return for
partial forfeiture of bail." Applicant also offered the following explanation for the incident:
I was just leaving the parking lot when I noticed a woman
gesturing for a ride. Ipulled over to offer some assistance. In a
. relatively short amount of time, it became apparent that this person

was looking for more than a ride. In fact, she was an undercover
police officer posing as a prostitute in a prostitution sting. Instead
of disengaging from the dialogue immediately, which I should
have done, I listened with compassion to a woman in a desperate
situation. I had absolutely no intentions to pay this woman for
sexual favors. The only thing I agreed to do was to pull into the
ally [sic] to talk. It was at this point I found myself surrounded by
police.

(Id. at 10.) Applicant also submitted a copy of the citation, complaint and documentation that he

had forfeited bail in the amount of $400 to the charge of prostitution. (Id. at 5-9.)

7. Susan Nisbet, TSPC investigator, was assigned to follow up with Applicant's
application and investigate his character. She spoke with Applicant on November 15, 2005 and
asked that he submit additional information about his arrest, including the police reports. On or
about November 22, 2005, Applicant submitted copies of the reports by Officers Schacht and
Hart as well as his own detailed description of the incident. Applicant also advised Ms. Nisbet
that there were several inaccuracies in the officers’ reports. (Test. of Nisbet; Ex. A2.)

8. Applicant submitted another written statement about the incident, which he actually

' wrote a day or two after his arrest. Applicant represented to TSPC that:
In the Matter ofMichaeI Lynn Stark, OAI-I Case No. 127036
Page 3 of 9

Without provocation, she [Officer Schacht] stated to me that for ’
$24 dollars she would only be willing to perform oral sex. I asked
her if she was a prostitute and she gave no reply. * * * She asked
me if that was all she had to do for the $24, or if I want anything
else. * * * She asked me next, in her words, if I wanted to play
with her titties or anything else. * * * She asked me to meet her in
the alley. This was the only thing I agreed to d0. My response to
meet her was only an attempt to diffuse the situation.
(Ex. A2 at 3.)
9. Following Investigator Nisbet's investigation, TSPC denied Applicant's application for
a teaching license. TSPC determined that Applicant did not provide satisfactory evidence of
good moral character or other evidence TSPC considered necessary to establish fitness as an
educator. Based on the police reports, TSPC determined that Applicant engaged in the criminal
act of prostitution and that he misrepresented the facts leading to his arrest in the written
statements he submitted to TSPC in connection with his application for licensure. (Test. of
Nisbet.)
CONCLUSIONS OF LAW
l. Applicant engaged in criminal behavior, prostitution, in Eugene, Oregon on August l8, .
2004.
2. Applicant misrepresented the facts leading to his arrest for prostitution in connection
with his application for an Oregon educator license. i
3. TSPC has grounds to deny Applicant licensure under ORS 342.143, OAR 584-050-
0006(1) or (5) and 584-020-0040(4)(c) or (5)(e).
OPINION
TSPC is the agency authorized to issue teaching licenses in the State of Oregon. Under
ORS 342.143, TSPC may require an applicant for a teaching license "to furnish evidence
satisfactory to the commission of good moral character, mental and physical health, and such
other evidence as it may deem necessary to establish the applicant's fitness to serve as a teacher."
OAR 584—050-0006 sets out criteria for denying issuance of licenses. Under OAR 548-050~
0006(6), TSPC shall deny a license when "the Executive Director has evidence that the applicant
may lack fitness to serve as an educator." TSPC will also deny a license when the applicant
submits a falsified application. OAR 584-050-0006(1).

_ In a license application proceeding, an applicant has the burden of establishing his or her
fitness to obtain the license. Sobel v. Board of Pharmacy, 130 Or App 374 (1994). But, as the
proponent of the position that Applicant engaged in criminal behavior and misrepresented facts .
in his application for licensure, TSPC bears the burden of presenting evidence. ORS 183.450.

In the Matter of Michael Lynn Stark, OAH Case No. 127036
Page 4 of 9

TSPC must prove its allegations by a preponderance of the evidence. 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).

Under OAR 548-020-0040(2), an applicant fails to meet ORS 342.143's requirement of
"good moral character" if he or she "engages in gross neglect of duty, gross unfitness or other
acts which are in violation of sections ( 1) or (3) of this rule."2 TSPC defines "gross unfitness" as
"any 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." OAR 584-020-0040(5).
Even in the absence of a conviction, engaging in an act of criminal conduct may constitute gross
unfitness. OAR 584-020-0040(5)(e).

In this case, TSPC alleges that Applicant has not established his fitness to serve as an
educator because he engaged in criminal behavior, prostitution, in Eugene, Oregon in 2004.
TSPC further alleges that Applicant misrepresented the facts leading to his arrest for prostitution
in his written application for licensure. Applicant, on the other hand, denies engaging in criminal
behavior. He challenges the reliability of the officer's reports and their memory of the incident in
issue. Applicant also denies making any misrepresentations or false statement in his application
for a teaching license, claiming that he explained the circumstances of his arrest to the best of his

. recollection. .

A. Criminal Conduct

In the City of Eugene, Oregon, a person commits the crime of prostitution if he or she
pays or offers or agrees to pay a fee to engage in sexual conduct or sexual contact. Eugene
Code, Section 4.745(l)(b).

Applicant contends that he did not offer or agree to pay money to Officer Schacht in
exchange for sexual conduct or sexual contact. He asserts that all he did was agree to meet a
woman in the alley. But, as set forth above in the findings of fact, I am persuaded by the
testimony of Officer Schacht that, on the aflernoon of August 18, 2004, Applicant offered
Officer Schacht money ($24) in exchange for oral sex and/or sexual contact. I am further
persuaded by the testimony of Officer I-Iart that, upon arrest, Applicant admitted that he offered
Officer Schacht money in exchange for oral sex. This issue hinges on the witnesses’ credibility
and, after considering the conflicting accounts of the events of August l8, 2004, I give more
weight to the officers‘ testimony. The officers were not parties to this proceeding and have no
real interest in its outcome. Also, the officers had motivation to accurately report what occurred
2 Section (l) of OAR 548-020-0040 provides that TSPC shall deny licensure of any person who has been
convicted of any of the crimes listed in ORS 342.143. Subsection (3) of the rule authorizes TSPC to
"deny a license or registration to an applicant under ORS 342.143 who: * * * (b) Is charged with

. knovw'ngly maldng a false statement in the application for a license; (c) Is charged with gross neglect of
duty; or (d) Is charged with gross unfitness."
In the Matter of Michael Lynn Stark, OAH Case No. 127036
Page 5 of 9

during the decoy operation, as they may be subject to civil liability for false arrest. See

Matthews v. Eldridge, 424 US 319 (1976). Consequently, I find that it is more likely than not

that Applicant engaged in a criminal act, prostitution, as defined by the Eugene City Code, on the .
afternoon of August l8, 2004.

The record establishes that Applicant was not convicted of this crime, but as noted above,
a conviction is not necessary. Under TSPC's rules, engaging in an act of criminal conduct can
constitute gross unfitness.

B. Misrepresentation or False Statement in the Application

In explaining the circumstances giving rise to his arrest in his teaching license
application, Applicant asserted, among other things, that he had "absolutely no intentions to pay
this woman for sexual favors." In a subsequent submission to TSPC, Applicant stated that
"without provocation, she stated to me that for $24 dollars she would only be willing to perform
oral sex. * * * She asked me to meet her in the alley. This was the only'thing I agreed to do."

As noted above, TSPC alleges that in submitting these written statements, Applicant
misrepresented the facts leading to his arrest.

As noted above, TSPC is entitled to deny issuance of a license when the applicant
"submits a falsified application." OAR 584-050-0006(l). Under OAR 584-020-0040(c), "gross
neglect of duty" includes "knowing falsification of any document or knowing misrepresentation
directly related to licensure, employment or professional duties." Although the latter provision
requires a "knowing" falsification as a ground for disciplinary action against a teacher, the
criteria for denying issuance of a license does not. Under OAR 584-050-00060), the Executive .
Director may deny a license whenever an applicant makes a false representation on his or her
application, regardless of whether the falsification was deliberate. See, e.g., Pierce v. Dept. of
Public Safety Standards and Training, 196 Or App 190 (2004) (where the court found that the
term "falsify" as used in ORS 181.662 simply means to represent incorrectly.3 Intent to deceive
is not implicit requirement of the statute.)

Because Applicant represented to TSPC that he had no intention to pay Officer Schacht
for sexual conduct and he denied offering the officer $24 in exchange for oral sex, he did not
accurately explain the events leading to his arrest. I am persuaded, therefore, that Applicant
incorrectly represented the circumstances of his arrest in his application for licensure.

Given Applicant's commission of a criminal act and his misrepresentations to TSPC
concerning the events leading to his arrest, TSPC is entitled to deny Applicant's application for a
teaching license under ORS 342.143(2).

3 ORS 181.662 authorizes DPSST to deny or revoke public safety officer certification if the person

falsified any information on the application for certification or any documents submitted to the ‘
department.

In the Matter of Michael Lynn Stark, OAH Case No. 127036

Page 6 of 9 .

ORDER
. I propose the Teacher Standards and Practices Commission issue the following order:
The Application of Michael Lynn Stark for a teaching license is denied.
Alison Greene Webster
Alison Greene Webster, Administrative Law Judge
Office of Administrative Hearings
MAILING AND ISSUE DATE: August 29. 2006
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 0f 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, Oregon 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 t0 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 Michael Lynn Stark, OAH Case No. 127036
Page 7 of 9

APPENDIX A
LIST 0F EXHIBITS CITED ‘ .

Ex. Al: Application for Educator License form C-l with attachments
Ex. A2: Incident Report from Michael Stark, dated 8/19/04
Ex. A3: Supplemental Report, Officer Rachel Schacht, Eugene Police,

dated 8/21/04 ,
Ex. A4: Supplemental Report, Officer Robert Hart, Eugene Police,

dated 8/28/04
In the Matter of Michael Lynn Stark, OAH Case No. 127036
Page 8 of 9

CERTIFICATE OF SERVICE
I certify that on August 30, 2006, I served the attached Corrected Proposed Order by mailing in a
sealed envelope, with first class certified postage prepaid, a copy thereof addressed as follows:
MICHAEL LYNN STARK
PO BOX 25214
EUGENE OR 97402
LINDSAY H FOWLER
ATTORNEY AT LAW
975 OAK ST SUITE 625
EUGENE OR 97401-3120
VICTORIA CHAMBERLAIN
EXECUTIVE DIRECTOR
TEACHERS STANDARDS AND PRACTICES
465 COMMERCIAL ST NE .
SALEM OR 97301
SUSAN NISBET
. TEACHER STANDARDS & PRACTICES
465 COMIVIERCIAL ST NE
SALEM OR 97301
MATTHEW DONOHUE
ASSISTANT ATTORNEY GENERAL
DEPARTMENT OF JUSTICE ‘
1162 COURT ST NE
SALEM OR 97301-4096
Lucy Giécia, gimstrative Specialist
Office Administrative Hearings
In the Matter of Michael Lynn Stark, OAH Case No. 127036
Page 9 of 9