Chapter 342

342.120

NOTES OF DECISIONS

The definitions in this section apply to ORS 342.513 and thus, plaintiff school superintendent was entitled to written notice of decision not to renew contract by April 1, 1981. Mitchell v. Board of Education of School Dist. 30-44-63J, 64 Or App 565, 669 P2d 356 (1983), Sup Ct review denied

ATTY. GEN. OPINIONS: Effect of education service district’s employment of noncertificated person as school psychologist, (1980) Vol 40, p 244

342.135

ATTY. GEN. OPINIONS: Teaching certificates for nurses employed in public schools, (1974) Vol 36, p 895

342.143

NOTES OF DECISIONS

Rule authorizing denial of teaching license on grounds, inter alia, of gross neglect of duty and gross unfitness, and defining those concepts, is sufficient explanation of term “good moral character” when agency relies on those two aspects in denying license. Reguero v. Teacher Standards and Practices Comm., 312 Or 402, 822 P2d 1171 (1991)

342.173

NOTES OF DECISIONS

Compensation received by noncertified substitute teachers for “in-service” days was improperly excluded by Teacher Standards and Practices Commission from forfeiture computation under this section. Oregon Educ. Ass’n v. Eugene School Dist, 53 Or App 722, 633 P2d 28 (1981)

Reimbursement for mileage, meals and lodging expenses does not constitute salary under this section. Oregon Educ. Ass’n v. Eugene School Dist, 53 Or App 722, 633 P2d 28 (1981)

ATTY. GEN. OPINIONS: Commission’s authority to require a coach to have a teaching certificate, (1975) Vol 37, p 778; non-certificated employes of private association conducting instructional recreation program of school district, (1977) Vol 38, p 1602; retroactive application of amendments to this section relating to employment of non-certificated teaching personnel or misassignment of certificated personnel, (1979) Vol 40, p 26; effect of education service district’s employment of noncertificated person as school psychologist, (1980) Vol 40, p 244

342.175

NOTES OF DECISIONS

Finding by Teacher Standards and Practices Commission regarding grounds for revocation is binding upon school boards seeking to dismiss for behavior that would justify revocation. Ross v. Springfield School Dist. No. 19, 294 Or 357, 657 P2d 188 (1982)

“Gross unfitness” refers to disqualifying status or trait, rather than single, simple instance of undesirable conduct. Teacher Standards and Practices Commission v. Bergerson, 342 Or 301, 153 P3d 84 (2007)

“Gross unfitness” refers to teacher’s current fitness at time of hearing. Teacher Standards and Practices Commission v. Bergerson, 342 Or 301, 153 P3d 84 (2007)

342.180

NOTES OF DECISIONS

Under this section, only entities entitled to appeal determination in proceeding for revocation of certificate are teacher, administrator, Superintendent of Public Instruction or school district. Oregon Ed. Assn. v. Teacher Standards and Practices Comm., 53 Or App 524, 632 P2d 805 (1981), Sup Ct review denied

342.513

NOTES OF DECISIONS

Under former similar statute the requirement that a school district must give written notice to a teacher that his or her contract will not be renewed is not satisfied by mere mailing of a notice unless it was delivered to the teacher before the statutory deadline. Welo v. Dist. Sch. Bd., Dist. 7, 24 Or App 443, 545 P2d 921 (1976)

Where school district superintendent received draft of minutes of school board meeting at which board decided not to renew his contract, and where he edited draft, notice of nonrenewal was sufficient to meet requirement of this section, although minutes had not been approved by board. Ambrose v. Board of Education, 51 Or App 621, 626 P2d 916 (1981), Sup Ct review denied

The definitions of ORS 342.120 apply to this section and therefore plaintiff school superintendent was entitled to written notice of decision not to renew contract by April 1, 1981. Mitchell v. Board of Education of School Dist. 30-44-63J, 64 Or App 565, 669 P2d 356 (1983), Sup Ct review denied

342.545

NOTES OF DECISIONS

This section does not require acceptance in order for resignation to be effective. Pierce v. Douglas County Sch. Dist. No. 4, 297 Or 363, 686 P2d 332 (1984)

342.553

NOTES OF DECISIONS

This section does not require acceptance in order for resignation to be effective. Pierce v. Douglas County Sch. Dist. No. 4, 297 Or 363, 686 P2d 332 (1984)

This section permits teacher to withdraw from contract without being found in breach, but did not allow acceptance of subsequent contract with new conditions and keeping option of later rejecting new conditions and relying on earlier ones. Siler v. Turnbull, 71 Or App 787, 693 P2d 1323 (1984)

342.596

See annotations under ORS 332.507.

342.650

NOTES OF DECISIONS

This section, if narrowly applied to prohibit only wearing of dress which has religious significance to wearer and conveys to school children teacher’s religious commitment, represents constitutional exercise of legislature’s obligation to protect religious freedom of pupils. Cooper v. Eugene Sch. Dist. No. 4J, 301 Or 358, 723 P2d 298 (1986)

This provision does not violate Title VII. U.S. v. Bd. of Educ. of School D. of Philadelphia, 911 F2d 882 (3rd Cir. 1990)

LAW REVIEW CITATIONS: 65 OLR 413 (1986); 75 OLR 1253 (1996)

342.655

NOTES OF DECISIONS

Sanction of this section is not penalty, but rather is disqualification from teaching based on doing so in manner incompatible with that function and is not therefore unconstitutional. Cooper v. Eugene Sch. Dist. No. 4J, 301 Or 358, 723 P2d 298 (1986)

LAW REVIEW CITATIONS: 75 OLR 1253 (1996)

342.663

See annotations under ORS 332.544.

342.805 to 342.955

NOTES OF DECISIONS

Under these sections a nontenured teacher may be entitled to a fair hearing. Vanderzanden v. Lowell Sch. Dist. 71, 369 F Supp 67 (1973)

The procedural requirements contained in these sections apply to all, or substantially all, nonpersonal discharges of instructors and administrators and to the transfer of administrators. Schaaf v. Sch. Dist. No. 4J, 19 Or App 838, 529 P2d 943 (1974), Sup Ct review denied

Where senior high school principals were transferred to positions as junior high school principals, allegedly in violation of Fair Dismissal Law, appeal must first be made to Fair Dismissal Appeals Board and issuance of writ of mandamus by circuit court was improper. Zollinger v. Warner, 286 Or 19, 593 P2d 1107 (1979)

LAW REVIEW CITATIONS: 16 WLR 409 (1979)

342.815

NOTES OF DECISIONS

Where school districts merge, reelection required to qualify teacher as permanent teacher in merged district means reelection by merged district following completion of succeeded-to employment contract. Sittser v. School District No. 12, 25 Or App 163, 548 P2d 511 (1976), Sup Ct review denied

Arbitrator’s order which reinstated teacher for “third probationary year” which would in fact be her fourth year of employment did not amount to award of permanent tenure since, under this section, only the district can confer tenure by an affirmative act of reelection. N. Clackamas Sch. Dist. v. N. Clackamas Educ. Assoc., 54 Or App 211, 634 P2d 1348 (1981)

Where petitioner was employed full-time as behind-the-wheel driving instructor during her first year of employment, her employment for that year was as “teacher” within meaning of this section. Humphreys v. Bethel Sch. Dist. 52, 54 Or App 867, 636 P2d 463 (1981)

Where petitioner received notice of renewal for fourth year by April 1 of third year, such notice did not immediately confer permanent status; teacher remains probationary after fourth-year renewal until completion of third year. Wesockes v. Powers Sch. Dist. No. 31, 57 Or App 652, 646 P2d 68 (1982). But see Smith v. Salem-Keizer School District, 188 Or App 237, 71 P3d 139 (2003), Sup Ct review denied

Fair Dismissal Law does not, within meaning of this section, apply to district’s termination of teacher for not holding valid teaching certificate or because teacher otherwise is not authorized to teach. Wagenblast v. Crook County School District, 75 Or App 568, 707 P2d 69 (1985)

Terminated school district employe was “superintendent” within definition of this section, Fair Dismissal Law did not apply to him, and FDAB correctly dismissed appeal for lack of jurisdiction. Babbitt v. Mari-Linn School Dist. No. 295, 94 Or App 161, 764 P2d 954 (1988), Sup Ct review denied

School year for purposes of identifying contract teacher is same as full year of employment described in ORS 342.840 for purposes of identifying probationary teacher. Smith v. Salem-Keizer School District, 188 Or App 237, 71 P3d 139 (2003), Sup Ct review denied

LAW REVIEW CITATIONS: 34 WLR 269 (1998)

342.835

NOTES OF DECISIONS

Failure to follow notice and hearing procedure does not constitute lack of good faith. Jinkerson v. Lane County Sch. Dist. No. 19, 20 Or App 174, 531 P2d 289 (1975)

General rights defined in this section did not limit specific collective bargaining rights of employes delineated in ORS 243.672 and ORS 243.662, and fact that petitioner was probationary teacher did not preclude Employment Relations Board from finding that his nonrenewal constituted unfair labor practice. Harrison v. Central Linn School District, 34 Or App 221, 578 P2d 460 (1978), Sup Ct review denied

School board was not required to submit its dismissal of probationary teacher to arbitration where collective bargaining agreement did not expressly provide for this. Ostrer v. Pine-Eagle School Dist., 40 Or App 265, 594 P2d 1296 (1979)

Legislature intended that nonrenewed probationary teacher have opportunity to contest reasons for nonrenewal, that school board consider evidence in good faith before decision and that limited appeal to courts be provided. Henthorn v. Grand Prairie School Dist., 287 Or 683, 601 P2d 1234 (1979)

Probationary teacher could not bring cause of action for breach of contract in attempt to review school district’s substantive basis for his termination, as proper remedy in such case is by writ of review. Maddox v. Clackamas County School Dist. No. 25, 51 Or App 639, 626 P2d 924 (1981), aff’d as modified 293 Or 27, 643 P2d 1253 (1982)

Violations of evaluation procedure under ORS 342.850, and public meeting law, ORS 192.640, are not “procedures at hearing” for purposes of appeal. Smith v. School Dist. No. 45, 63 Or App 685, 666 P2d 1345 (1983), Sup Ct review denied

342.840

NOTES OF DECISIONS

Third-year teacher serving 135-day period required to receive credit for full year attains permanent teacher status upon completion of 135-day period, not upon completion of full school year. Axelsen v. Hillsboro Union High School District No. 3, 898 F. Supp. 719 (D. Or. 1995)

342.845

NOTES OF DECISIONS

Where, prior to enactment of ORS 342.865 on July 20, 1973, school district transferred administrator to lower paying position as teacher as result of good faith reorganization of district, district had no duty to attempt to find administrative position for which he could qualify or to assign him to such position in preference to assigning him to classroom teaching position. Porter v. School District No. 24J, 31 Or App 987, 571 P2d 1286 (1977), Sup Ct review denied

Where permanent teacher submitted letter purporting to “resign” gymnastics coach duties but did not purport or intend to resign teaching or softball coach duties, school board’s treatment of letter as total resignation and acceptance of it was a “dismissal” and was without consent of the teacher. Babitzke v. Silverton Union High School, 72 Or App 153, 695 P2d 93 (1985), Sup Ct review denied

Youth correction facility providing state educational programs is not “school district.” Bain v. Willamette Education Service District, 170 Or App 689, 13 P3d 1021 (2000)

Where no appointment to new post or duty occurs, mere increase in amount of work to be performed is not assignment or reassignment. Folkers v. Lincoln County School District, 205 Or App 619, 135 P3d 373 (2006)

“Reduction in pay” means decrease in salary amount, not decrease in effective rate of pay. Folkers v. Lincoln County School District, 205 Or App 619, 135 P3d 373 (2006)

ATTY. GEN. OPINIONS: Seniority and status of permanent part-time teacher, (1980) Vol 41, p 71

LAW REVIEW CITATIONS: 34 WLR 269 (1998)

342.850

NOTES OF DECISIONS

A teacher’s personnel file need not necessarily identify all the sources of the subject matter discussed therein in order to be maintained as required in this section in order for evidence relating to such subject matter to be admissible. School Dist. 48 v. Fair Dismissal Appeals Bd., 14 Or App 634, 514 P2d 1114 (1973)

Although the language of this statute is mandatory, it does not provide a remedy for its violation. Smith v. School Dist. No. 45, 63 Or App 685, 666 P2d 1345 (1983), Sup Ct review denied

Option of invoking or waiving confidentiality of personnel record belongs to school district, not to individual who is subject of record. Oregonian Publishing v. Portland School District No. 1J, 152 Or App 135, 952 P2d 66 (1998), aff’d on other grounds, 329 Or 393, 987 P2d 480 (1999)

Employer disclosure of some personnel file information to public does not change confidential status of documents not disclosed. Springfield School District No. 19 v. Guard Publishing Co., 156 Or App 176, 967 P2d 510 (1998)

Investigatory report that is not specific to employment of individual employee is not part of personnel file and therefore is subject to disclosure. Oregonian Publishing v. Portland School District No. 1J, 329 Or 393, 987 P2d 480 (1999)

ATTY. GEN. OPINIONS: Validity of employer’s restrictions on teacher’s representation at evaluation conference, (1976) Vol 38, p 443

LAW REVIEW CITATIONS: 34 WLR 269 (1998)

342.865

See also annotations under ORS 342.530 in permanent edition.

NOTES OF DECISIONS

Reinstatement is not an available remedy under this section for a teacher wrongfully discharged. George v. Sch. Dist. 8R, 7 Or App 183, 490 P2d 1009 (1971)

Statute requiring the district school board to dismiss teachers for “immorality” held unconstitutional. Burton v. Cascade Sch. Dist., 353 F Supp 254 (1973)

Where school district had adopted written “performance standards,” which were in evidence at Fair Dismissal Appeals Board’s proceeding, it was not error for FDAB to fail to articulate performance standards in its order affirming school’s dismissal of permanent teacher on grounds of “inadequate performance.” Vorm v. School Dist. No. 40, 45 Or App 225, 608 P2d 193 (1980)

It was not impermissible, as matter of law, for school district, at time it was working out staffing needs, to insist that teacher on leave of absence advise whether he intended to return to job at end of leave, and school board could reasonably consider refusal to respond as insubordination or neglect of duty under this section. Keene v. Creswell School Dist. No. 40, 56 Or App 801, 643 P2d 407 (1982)

It was error for Fair Dismissal Appeals Board to affirm dismissal of teacher on basis of “gross unfitness” where Teacher Standards and Practices Commission determined that facts underlying charge of “gross unfitness” did not constitute grounds for revocation of teaching certificate under ORS 342.175. Ross v. Springfield School Dist. No. 19, 294 Or 357, 657 P2d 188 (1982)

Where school district had not attempted to define “immorality” through rules, policies or standards, order affirming dismissal of permanent teacher was inadequate and it was remanded to Fair Dismissal Appeals Board for determination as to whether facts as to “immorality” were adequate to justify statutory grounds. Ross v. Springfield School Dist. No. 19, 294 Or 357, 657 P2d 188 (1982)

Fair Dismissal Appeals Board was responsible without looking to community opinion for deciding criteria making conduct immoral within meaning of this section. Ross v. Springfield School Dist. No. 19, 300 Or 507, 716 P2d 724 (1986)

Fair Dismissal Appeals Board misconstrued statutory term “duty” under this section by reasoning that teacher’s family options rather than her responsibilities to school district and students were determinative. Jefferson County School Dist. No. 509-J v. FDAB, 102 Or App 83, 793 P2d 888 (1990), aff’d 311 Or 389, 812 P2d 1384 (1991)

Fair Dismissal Appeals Board could consider personal circumstance in determining whether objectively defined duty had been neglected. Kari v. Jefferson County School Dist. No. 509-J, 120 Or App 99, 852 P2d 235 (1993), Sup Ct review denied

Past incidents for which teacher has already been disciplined and that do not individually constitute neglect of duty may be cumulatively considered to establish neglect of duty. Bellairs v. Beaverton School District, 206 Or App 186, 136 P3d 93 (2006)

LAW REVIEW CITATIONS: 70 OLR 895 (1991)

342.895

See also annotations under ORS 342.508 in permanent edition.

NOTES OF DECISIONS

A witness otherwise qualified as an expert who himself has not furnished information or data found in the personnel file is not thereby disqualified as a witness under this section. Sch. Dist. 48 v. Fair Dismissal Appeals Bd., 14 Or App 634, 514 P2d 1114 (1973)

Where facts relied upon by school board to dismiss teacher were found by Fair Dismissal Appeals Board to be true, Board may not reverse school board action unless no reasonable school board could have regarded facts as sufficient to support statutory grounds for dismissal. Lincoln County School District v. Mayer, 39 Or App 99, 591 P2d 755 (1979), Sup Ct review denied

Where procedural prerequisites of this section were not followed in transfer of senior high school principals to positions as junior high school principals, relief should first have been sought from Fair Dismissal Appeals Board. Zollinger v. Warner, 286 Or 19, 593 P2d 1107 (1979)

Where reports of parental complaints were included in teacher’s personnel file, hearsay evidence was admissible in Fair Dismissal Appeals Board proceeding concerning teacher’s dismissal on grounds of “inadequate performance.” Vorm v. School Dist. No. 40, 45 Or App 225, 608 P2d 193 (1980)

Notice of dismissal must contain statement of facts which expressly sets out nexus between teacher’s conduct and teaching responsibilities or from which such connection may obviously be inferred and where notice informed teacher that acts constituting “gross unfitness” and “immorality” consisted of 12 instances of battery, 11 of which involved offensive sexual contact with student in district where respondent taught who was same approximate age as respondent’s students, nexus may obviously be inferred. Shipley v. Salem School Dist 24J, 64 Or App 777, 669 P2d 1172 (1983), Sup Ct review denied

Where formal notice procedure is not followed, district school board may not take action to dismiss teacher and period for appealing dismissal is tolled. Post v. Salem-Keizer School District, 334 Or 61, 45 P3d 116 (2002)

Moratorium on filing of grievances while teacher is on plan of assistance does not suspend processing of grievances pending at time plan of assistance commences. Lane Unified Bargaining Council v. South Lane School District 45J3, 334 Or 157, 47 P3d 4 (2002)

LAW REVIEW CITATIONS: 34 WLR 269 (1998)

342.905

NOTES OF DECISIONS

Statement of reasons for appeal is not jurisdictional requisite of notice of appeal to Fair Dismissals Appeals Board. Hood River School District v. Fogle, 31 Or App 659, 571 P2d 176 (1977)

Where facts relied upon by school board to dismiss teacher were found by Fair Dismissal Appeals Board to be true, Board may not reverse school board action unless no reasonable school board could have regarded facts as sufficient to support statutory grounds for dismissal. Lincoln County School Dist. v. Mayer, 39 Or App 99, 591 P2d 755 (1979), Sup Ct review denied; Bergerson v. Salem-Keizer School District, 194 Or App 301, 95 P3d 215 (2004), aff’d 341 Or 401, 144 P3d 918 (2006)

Fair Dismissal Appeal Board could, under this section, consider letter not included in statement of charges against petitioner as “additional facts developed at hearing.” Keene v. Creswell School Dist. No. 40, 56 Or App 801, 643 P2d 407 (1982)

Fair Dismissal Appeals Board did not err in reversing dismissal of tenured teacher when it concluded that facts found to be true and substantiated did not support the statutory grounds for dismissal cited by the district. Bethel School Dist., No. 52 v. Skeen, 63 Or App 165, 663 P2d 781 (1983), Sup Ct review denied

Where Fair Dismissal Appeals Board finds that at least some of facts relied upon by school district are true and substantiated and support cited grounds for dismissal, board is limited to affirming or reversing dismissal. Bergerson v. Salem-Keizer School District, 194 Or App 301, 95 P3d 215 (2004), aff’d 341 Or 401, 144 P3d 918 (2006)

Fair Dismissal Appeals Board may not allow employer to reduce back wages by offsetting unemployment benefits received by employee after wrongful dismissal. Zottola v. Three Rivers School District, 342 Or 118, 149 P3d 1151 (2006)

To determine whether factual allegations relied upon by school board are true and substantiated, Fair Dismissal Appeals Board may examine entire evidentiary record. Waisanen v. Clatskanie School District #6J, 229 Or App 563, 215 P3d 882 (2009)

LAW REVIEW CITATIONS: 34 WLR 269 (1998)

342.934

LAW REVIEW CITATIONS: 34 WLR 269 (1998)