Jason Len, Appellant V. Office Of The Superintendent Of Public Instruction, Respondent (Majority)

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FILED COURT OF APPS I - S DIMS@x' 1'1 Jf 2015 JUL - T AN 8: 43 S 1` 4 L 0 ' IN THE COURT OF APPEALS OF THE STATE OF WASHING_ 0 FPVT Y DIVISION II No. 45534 -0 -II JASON LEN, Appellant, V. UNPUBLISHED OPINION OFFICE OF THE SUPERINTENDENT OF PUBLIC INSTRUCTION, SUTTON, J. — The Office of the Superintendent of Public Instruction ( OSPI) suspended Jason Len' s teacher' s certificate for 12 months for unprofessional conduct with students, and required him to undergo a psychological examination and counseling as a condition for reinstatement. The superior court affirmed OSPI' s final order. Len appeals and argues that 1) substantial evidence does not support the findings of fact and that the findings do not support the conclusions of law that Len violated generally recognized professional standards for teachers, violated the principal' s no contact directives, and lacked credibility, ( 2) the administrative. law judge ( ALJ) did not correctly weigh the evidence or apply the disciplinary factors in WAC 18186- 080, ( 3) the ALJ erred in concluding that Len must submit to a psychological evaluation and counseling as a condition for reinstatement, and (4) the ALJ erred by not requiring a higher burden of proof than clear and convincing evidence, by conducting the hearing de novo, and by allowing additional evidence. findings support the We hold that ( 1) substantial evidence supports the findings of fact and the conclusions of law that Len violated generally recognized professional 1GTOP4 No. 45534 -0 -II standards for teachers, violated the no contact directives, and lacked credibility, ( 2) the ALJ correctly weighed the evidence and applied the relevant disciplinary factors, and ( 3) the appeal hearing complied with RCW 34. 05. 449( 2) and WAC 181- 86- 150. We affirm OSPI' s order that suspended Len' s teacher' s certificate for 12 months and required him to undergo a psychological examination and counseling as a condition for reinstatement. FACTS The Bellevue School District ( District) employed Len to teach grades 6 through 12 at its International School. During his 10 -year tenure at the school, Len primarily taught math and science to middle -school -aged boys. He also served as an advisor to the school' s math and science team for several years, advisor to the school' s robotics team and student government for one year, and as a chaperone on school field trips and student social functions. Over a period of two years, from 2006 to 2008, Len spent a significant amount of time socializing with several students, mostly sophomores, outside of school. All of these boys met Len as students at the International School, and most of them had been his students when they were younger. Len' s conduct from 2006 to 2008 is the focus of the 12 month suspension. I. LEN' S SOCIAL INTERACTIONS WITH STUDENTS Len socialized with these boys by taking them out to meals, giving them rides in his personal vehicle, and watching thein play video games. Frequently, he spent time with the boys one- on-one. At other times, he socialized with groups of boys. Among other things, Len took the boys to local parks and malls, drove them on trips to the beach, and spent extended periods of time at some of their homes, often " until the small hours 2 of the morning." Clerk' s Papers ( CP) at 7- 8. No. 45534 - -II 0 Len texted or called the boys to ask if they wanted to spend time together. With one exception, he had no social relationship with the boys' parents and socially interacted almost exclusively with the boys. When Len took the boys out, he did not inform the parents where they were going unless the parents specifically asked, and he seldom asked the parents' permission to spend time with the boys. Len' s conduct caused some parents to talk to their sons about whether any sexual contact had occurred. Len spent the most one- on- one time with one boy whom Len met socially on a nearly weekly basis for up to four hours at a time. The boy' s mother and stepfather expressed their discomfort with this relationship, and the boy' s mother wrote to Len asking him to confine his interactions with her son to school -related activities. II. LEN' S GIFTS AND LOANS TO STUDENTS Len took the boys to restaurants, bought favored students gifts such as clothes, small souvenirs, and a toy helicopter, and loaned one student money to buy .a pair of shoes. The boys often contacted Len and asked him to j oin in on their teenage activities, to drive them around town in his car, and to come to their homes to hang out. On one occasion, Len drove several students to buy a video game to be released at midnight. They returned to a student' s house and played games and Len did not leave until 3: 00 a.m. III. LEN' S INVOLVEMENT IN STUDENT SOCIAL AFFAIRS Len also interjected himself into the students' social affairs. On one occasion, he attended a school -sponsored student dance where students attended with their respective dates while Len socialized with the students. When some of the boys became " frustrated and left the dance" to go to a restaurant, Len encouraged the girls " to reconcile with the boys'' by offering to drive them to 3 No. 45534 -0 -II the restaurant. CP at 10. They declined his offer; the next week, Len " approached the girls again and encouraged them to reconcile with the boys." CP at 10. They again rejected his offer and one of the girls spoke angrily toward Len about the way he was interjecting himself in their personal affairs. IV. EVENTS WITH STUDENTS During a number of school sponsored trips, Len spent time in sleeping areas with students. He also spent time with a few of his male students who were not part of any school sponsored event; these contacts occurred during the summer, after school, and on weekends. During a trip to a jazz festival in Idaho, Len invited several boys to spend the night in his room to play video games on Len' s game console that he bought for this trip. Len, dressed in pajamas, watched them play and only slept in his bed for part of the night. The school' s jazz choir advisor found out later that Len helped these students violate curfew. On one occasion, without the District' s knowledge or advance approval and in violation of the District' s policy, Len had a party for the high school math team before its spring competition and invited the students to sleep over at his house. No other adults were present and the school' s principal did not know about the event until after it occurred. On another occasion, Len was invited to a former student' s family barbeque along with several other students who planned to spend the night there prior to leaving on a trip with that student and his stepfather the next morning. Len stayed overnight in the former student' s room and watched the students play video games, without the knowledge or consent of the former student' s parents. M No. 45534 -0 -II Len took a weekend road trip to the Oregon coast with four students, with their parents' permission ( one student had just graduated). Len shared rooms with the students during this trip and one night shared a room with only one student and slept side-by- side next to the student. V. DISTRICT INVESTIGATION AND PRINCIPAL' S DIRECTIVES In March 2008, after a teacher at the school informed the principal about Len' s interactions with students, the principal initiated an investigation and interviewed certain students and their parents. On March 13, during the investigation, the principal gave Len formal directives limiting Len' s permissible interactions with students and prohibiting him from certain conduct, including 1) prohibiting Len from discussing the investigation with school students or their parents, 2) prohibiting Len from spending time with students after school hours, and ( 3) limiting Len' s interactions with students to those of a professional teacher/ student relationship. In the fall of 2008, while the investigation continued, the District involuntarily transferred Len to another school within 2008, the District issued a the District. Letter Upon completion of the investigation in November Reprimand to Len for his " failure to respect appropriate of professional boundaries with students" and directed him to stop engaging in his " alarming pattern of behavior." permission CP from at 802- 05. He was administrators, ( directed to: ( 1) not visit students' homes without explicit 2) have no telephone, email, or other communication with District students outside the normal requirements of teacher student communication on school - related smatters, and ( 3) refrain from any social or other contact with District students away from school. If he unexpectedly separate [ him] self from the ran into situation students outside of school, in Len was " a polite and professional manner." directed to promptly CP at 11. In addition to the no -contact directives, the District imposed a number of directives designed to limit Len' s 5 No. 45534 -0 -II interactions with students in school -sanctioned activities (restricting where he could park, banning him from chaperoning or supervising students on overnight trips, and prohibiting him from being the sole chaperone/ supervisor for any evening or non -school day local events). Len ignored these no contact directives. In May 2008, two months after the principal issued the directives, during the investigation, another teacher witnessed Len talking with students about the investigation. Between 2008 and 2010, after Len was transferred to another school, he continued to talk with one of the International School students and met another student several times. VI. TEACHER DISCIPLINARY PROCESS After the superintendent District transmitted investigated, a complaint reprimanded, and letter to the Office of reassigned Len, the District' s Professional Practices ( OPP), an office within OSPI. 1 See WAC 181- 86- 110; WAC 181- 87- 095. The complaint triggered an investigation by OSPI, which enforces. Washington' s code of professional conduct Upon receipt of a complaint for teachers. RCW 28A. 410. 010( 2), . 095( 1). alleging unprofessional conduct, OPP investigates to ascertain whether the teacher failed to comply with the rules of professional conduct. RCW 28A.410. 095; WAC 181- 86- 100( 2). Once OPP completes its investigation, it issues a proposed order informing the teacher of its factual findings, the disciplinary action that OPP intends to take, and the teacher' s appeal rights. WAC 181- 86- 130; RCW 28A. 410. 095( 4). A teacher has 30 days to appeal the proposed order before it becomes final. WAC 181- 86- 135( l). A teacher may appeal in writing stating why OPP' s proposed discipline is not warranted and requesting an informal review under WAC 181- 86- 145. OSPI appoints an independent review officer who convenes a committee to review informal appeals and make disciplinary recommendations to the review officer. . WAC 181- 86- 095. The review officer, acting with the committee' s recommendations, may uphold, reverse, or modify OPP' s proposed disciplinary order. WAC 181- 86- 145( 3). 135, - 145. The review officer then issues a final order. WAC 181- 86- A teacher may then request a formal review under WAC 181- 86- 150, which results in an Administrative Procedures Act (APA), chapter 34.05 RCW, hearing before an ALJ. WAC 18186- 150( 1)—( 2). I No. 45534 -0 -II OPP initiated its investigation on December 12, 2008 after receiving the District' s complaint alleging unprofessional conduct by Len. OPP concluded its investigation on March 8, 2011, and issued a proposed order recommending suspension of Len' s teaching certificate for 12 months and requiring him to complete a psychological evaluation as a condition for reinstatement. Len administratively appealed the order and, following an informal agency review, OSPI concluded that OPP' s proposed discipline was appropriate and issued a final order on November 14, 2011. Len appealed and requested a formal adjudicative hearing under WAC 181- 86- 150. In August 2012, an ALJ conducted an adjudicative hearing under RCW 34. 05. 449( 2) and WAC 181- 86- 150 to determine whether clear and convincing evidence supported OSPI' s order suspending Len' s teaching certificate for 12 months with conditions on reinstatement. The ALJ issued the agency' s final decision on December 18, 2012, concluding that Len committed acts of unprofessional conduct in five ways that constituted a " flagrant disregard or clear abandonment of generally recognized professional standards in the course of assessing, treating, instructing, or supervising students. CP at 26; see WAC 181- 87- 060. The ALJ District, and city also concluded rules, ( CP at usurp[ ing] the course of supervising students, ( 1) Len violated school, 2) Len engaged in professional misconduct by selecting some students for vastly differential treatment students," that, in the as favorites," CP at 27, ( 3) Len " lavish[ ed] meals and gifts on 28, ( 4) Len " interfered with relationships between parents and students, parental decision- making role," CP at 28, ( 5) Len engaged in conduct that disregarded professional teacher -student boundaries " resembl[ ing] grooming behavior for sexual abuse," CP -at 29, and ( 6) Len' s conduct created potential legal liability for his employer. 7 No. 45534 -0 -II The ALJ also made 17 specific findings regarding Len' s testimony and his credibility, ultimately finding Len' s statements " weak, " unpersuasive," and " untruthful." CP at 13- 17. Len appealed the ALJ' s final order to superior court. Because he did not request a stay, he completed his 12 month suspension on The superior court affirmed OSPI' s final order. December 18, 2013. Len appeals. ANALYSIS Len argues that ( 1) substantial evidence does not support OSPI' s findings of fact2 and the findings do not support the conclusions of law that Len violated " generally recognized professional standards" and that Len was truthful, Br. not of Appellant at 2, ( 2) the ALJ lacked substantial evidence or authority to require Len to submit to a psychological evaluation and counseling before his teacher' certification s could be reinstated, ( 3) the ALJ did not correctly apply the 11 disciplinary factors under WAC 181- 86- 080, and ( 4) because his career was impacted, the appeal hearing should not have been conducted de novo with additional evidence permitted, but rather OSPI should have been required to prove and defend OPP' s investigation and proposed 12 month suspension. Thus, he concludes that OSPI' s final order is not supported by substantial evidence, OSPI erroneously interpreted or applied the law, and the order is arbitrary or capricious under RCW 34. 05. 570. 2 He argues governing conduct' provide " that ( 1) his conduct was not such an egregious departure from the regulations for teachers, ( 2) professional conduct or a `[ lack of] good moral character' his and ` personal conduct fell within "` unprofessional fitness,"' because the WACs do not guidelines governing interpersonal relationships with students beyond inappropriate physical and/ or sexual contact," was none of unprofessional, investigation. Br. of and ( 3) Appellant and that he had no " prior advance knowledge" that his conduct OSPI improperly concluded that he was dishonest during the at 9( alterations in E original), 17- 18. No. 45534 -0 -II The State responds that ( 1) substantial evidence supported the ALJ' s findings of facts and conclusions of law, (2) OSPI established by clear and convincing evidence through the testimony of teachers, professionals, the principal, and the OPP director that Len' s conduct was an egregious departure from the the weighed regulations evidence governing and professional conduct the applied for teachers, ( 3) relevant the ALJ correctly disciplinary factors in WAC 181- 86- 080, and ( 4) the ALJ properly conducted the appeal hearing de novo and properly permitted additional evidence under RCW 34. 05. 449( 2) and WAC 181- 86- 150. We agree with the State. I. STANDARD OF REVIEW The Administrative Procedures Act (APA), chapter 34. 05 RCW, governs judicial review of OSPI orders in teacher certification cases. Frazier 754, 756, 725 P. 2d 619 ( 1986); RCW 34. 05. 558, . the trial court' s record. 417 ( 2012), OSPI' s review findings Dep' t of Revenue v. fact for substantial Superintendent of Pub. Inst., 106 Wn.2d 570. We review the agency' s record rather than Bi Mor, Inc., denied, 177 Wn.2d 1002 ( 2013); of v. evidence, see 171 Wn. App. 197, 201- 02, 286 P. 3d Frazier; 106 Wn.2d which at 756. We review is " evidence sufficient to persuade a fair-minded person of the truth of an asserted premise." 3 We review OSPI' s legal conclusions de 3 novo, State v. but we give "` substantial weight to the agency' s interpretation when the subject area falls Homan, 181 Wn.2d 102, 106, 330 P. 3d 182 ( 2014). This standard requires. us to "` view inferences in a light most favorable to the' party that prevailed in the highest forum exercising factfinding authority. "' Benchmark Land Co. v. City ofBattle Ground, 146 Wn.2d 685, 694, 49 P. 3 d 860 ( 2002) ( quoting Schofield v. Spokane County, 96 Wn. App. 581, 588, 980 P. 2d 277 ( 1999)). Evidence may be substantial enough to support a factual finding even ifthe evidence is conflicting and could lead to other reasonable interpretations." Gibson v. Emp' t Sec. Dep' t, 185 Wn. App. 42, 53, 340 P. 3d 882 ( 2014). 9 No. 45534 -0 -II within the agency' action was s area of expertise. ` lies invalid ... When reviewing factual findings correct App. law, with appeal, `[ the party challenging the by law and 3) apply the law to the applicable t] he burden of proving that the agency action. ` fact, this substantial evidence, ( 42, 52, 340 P. 3d 882 ( 2014); P. 3d 713 ( 2014). On mixed questions of are supported and ( 4" 5 court must "( 1) determine whether 2) make a de novo determination of the facts." Gibson v. Emp' t Sec. Dep' t, 185 Wn. see Campbell v. Emp' t Sec. Dep' t, 180 Wn.2d 566, 573, 326 We do not reweigh credibility or demeanor evidence when reviewing factual inferences made by the ALJ before interpreting the law, nor do we substitute our judgment of the facts for that of the agency. Ames v. Dep' t of Health Med. Quality Health Assurance Comm' n MQAC), 166 Wn.2d 255, 260- 61, 208 P. 3d 549 ( 2009). II. GENERALLY RECOGNIZED PROFESSIONAL STANDARDS FOR TEACHERS Len argues that the punitive nature of certification revocation requires courts to " strictly and 4 narrowly B& R Sales, Inc. quoting Dep' 711 ( 2002)). 5 constru[ e regulations] against Dept of Labor & Indus., 186 Wn. App. 367, 344 P. 3d 741, 746 ( 2015) t of Labor & Indus. v. Mitchell Bros. Truck Line, 113 Wn. App. 700, 704, 54 P. 3d v. Mitchell Bros. Truck Line, 113 Wn. App. the enforcing agency," and, because the regulations App. at 704 ( quoting Mader v. Health Care Auth., 109 Wn. 904, 911, 37 P. 3d 1244 ( 2002), reversed on other grounds, 149 Wn.2d 458, 70 P. 3d 931 2003)); Thomas see v. Emp' t Sec. Dep' t, 180 Wn.2d 566, 571, 326 P. 3d 713 ( 2014); see also Dep' t., 176 Wn. App. 809, 812, 309 P. 3d 761 ( 2013); RCW 34. 05. 570( 1)( a). Campbell Emp' t Sec. v. 10 No. 45534 -0 -II do not provide sufficient guidance to defining generally recognized professional standards, the ALJ erred in concluding that Len' s conduct exceeded the bounds of these standards. 6 We disagree. Unprofessional conduct occurs when a teacher demonstrates a " flagrant disregard or clear abandonment of instruction, generally recognized professional standards or supervision of students." in the ... [ WAC 181- 87- 060. " a] ssessment, treatment, Student" is broadly defined and includes students " enrolled in any school or school district served by the education practitioner" and former students under 18 years old who have been under the " supervision, direction or control" of the educator. Private conduct is subject to the professional conduct WAC 181- 87- 040( 2), ( 4). standards " where the education practitioner' s role as a private person is not clearly distinguishable from the role as an education practitioner and the fulfillment of professional obligations." WAC 181- 87- 020. W] hether particular conduct renders a professional unfit to practice is determined in light of the purpose of professional discipline, and the common knowledge and understanding of members 6 Br. of of the particular profession."' Appellant at 17- 18. Faghih v. Dep' t of Health Dental Quality Assurance Len bases. his argument on the assertion that a teacher certification suspension is " quasi -criminal" in nature, and thus the ALJ was required to hold the District to a higher standard. Br. of Appellant at 14. We disagree. Although a professional license is a property interest for which revocation requires due process, to revoke a professional license, the fact finder need only meet a " clear and convincing evidence" standard, rather than the reasonable doubt standard in criminal proceedings. Hardee v. Dep' t ofSoc. & Health Servs., 172 Wn.2d 1, 8, 256 P. 3d 339 ( 2011). And WAC 181- 86- 170( 2) specifically provides that proof in teacher disciplinary proceedings must be established by the clear and convincing" evidence standard. Thus, we reject Len' s argument that a certification suspension proceeding is quasi -criminal in nature. 11 No. 45534 -0 -II Comm' n, 148 Wn. App. 836, 848- 49, 202 P. 3d 962 ( 2009) ( quoting 127 Wn.2d 595, 605, 903 P. 2d 433, 909 P. 2d 1294 ( 1996)). Heinmiller v. Dep' t ofHealth, OSPI may establish generally recognized professional standards under WAC 181- 87- 060 using the testimony of educators, administrators, and others with specific knowledge of the standards observed by the professional education community. See Heinmiller, 127 Wn.2d at 605 ( common knowledge and understanding of members of a profession requires fact finding); Wn.2d 720, 743, 818 P. 2d 1062 ( 1991) ( particular conduct Wn. App. 403, is is unacceptable see also Haley v. Med. Disciplinary Bd., 117 understanding among members of a profession that a question of 411- 12, 136 P. 3d 760 ( 2006) ( fact); see also Johnson v. Dep' t ofHealth, 133 professional standards can be proven by a person who is not a member of a profession if she or he has work - ased knowledge of the standards). b Based on substantial evidence in the form of parent, teacher, and principal testimony, as well as students Len' s testimony, for favoritism, (2) bought child relationships, ( Based the ALJ on found, among gifts, meals, and other things, that Len ( 1) lent money to students, ( singled out certain 3) interfered in parent- 4) took students to parks after the parks closed, and ( 5) was not credible. the findings,' the ALJ concluded that Len violated the school' s and District' s policies 7 All of these findings of fact were supported by substantial evidence from parents, teachers, the principal, and the OPP director, all of whom were familiar with Len' s conduct and the conduct expected of teachers. 12 No. 45534 -0 -II and local city ordinances, failed to obtain parent or the District' s approval when necessary, and violated generally recognized professional standards. III. VIOLATION OF NO -CONTACT DIRECTIVES Len also challenges the ALJ' s findings that he violated the no -contact directives given to him by the school' s principal. The ALJ found that the student and teacher witnesses, who described Len' s contact with students after the principal instituted the no -contact directives, were credible whereas Len' s testimony was not credible; the ALJ concluded thatIen repeatedly violated the directives by contacting students, and that Len thereby " demonstrate [d] a behavioral problem." CP at 3, 31. " We do not evaluate witness Soc. & Health Servs., 145 Wn. determinations 932 ( 2011). on appeal. App. 708, credibility or reweigh the 717, 187 P. 3d 798 ( 2008). evidence." Kraft v. Dep' t of Nor will we disturb credibility Griffith v. Seattle Sch. Dist. No. 1, 165 Wn. App. 663, 672, 266 P. 3d Len fails to show that the ALJ lacked substantial evidence in finding that Len violated the no -contact directives. IV. EVIDENCE OF ARGUABLY PRIVATE CONDUCT SHOULD HAVE BEEN EXCLUDED Len argues that, under WAC 181- 87- 020, the ALJ should have excluded and not considered evidence of his Oregon trip with students in 2007.9 He argues that the Oregon trip was 8 Len does not specifically identify which of the ALJ' s findings of fact he asserts are erroneous, but findings of fact 48 and 49 address Len' s violation of the no -contact directives. Len also argues that the principal' s Letter of Reprimand did not specify any " regulation, policy or standard of the District" that Len violated. Br. of Appellant at 22. But we review the ALJ' s factual findings and conclusions of law, not the comprehensiveness of the principal' s Letter of Reprimand. See RCW 34. 05. 570( 1)( a), ( 3)( d), ( e), ( i). Accordingly, we need not address Len' s arguments regarding the principal' s letter. 9 WAC 181- 87- 020 provides, " As a general rule, the provisions of this chapter shall not be applicable to the private conduct of an education practitioner except where the education 13 No. 45534 -0 -II private conduct to which the teacher' s code of professional conduct does not apply. The State responds that the ALJ could consider the Oregon trip because, at the time, Len' s role " was not clearly distinguishable from his that the ALJ should have role as an educator." excluded this Br. of Resp' t at 31- 32. We agree with Len evidence under WAC 181- 87- 020. But we hold that, in light of the substantial evidence demonstrating that Len continually violated generally recognized professional standards, the ALJ' s failure to exclude this evidence was harmless error. 10 V. CREDIBILITY FINDINGS OF FACT Len argues that the ALJ erred in entering 17 findings that he was untruthful during the investigation and hearings. But Len did not appeal certain findings of fact related to his credibility that are now verities on appeal Tapper Emp' t Sec. Dep' t, v. before OSPI, " credibility or 263 ( 2010). including Findings of Fact 33- 43 and 46- 47. 122 Wn.2d 397, 407, 858 P. 2d 494 ( 1993). RAP 10. 3( g), ( h); In reviewing the record we will not substitute our judgment for that of the agency regarding witness the weight of evidence." Smith v. Emp' t Sec. Dep' t., 155 Wn. App. 24, 35, 226 P. 3d Testimony from students, teachers, and the principal consistently contradicted Len' s version of events, whom the ALJ found to be not credible on multiple occasions. The ALJ' s factual findings show that other witnesses refuted Len' s description of the events with " clear and practitioner' s role as a private person is not clearly distinguishable from the role as an education practitioner and the fulfillment of professional obligations." Evidence at the hearing showed that the students who went on the trip with Len were his current students and that he " shared a bed" with one of the boys. CP at 15. We note that the ALJ did not make any reference to the Oregon trip in its conclusions of law. io " Improper admission of evidence constitutes harmless error if the evidence is of minor in reference to the evidence as a whole." State v. Neal, 144 Wn.2d 600, 611, 30 P. 3d significance 1255 ( 2001). 14 No. 45534 -0 -II convincing" evidence, as required under WAC 181- 86- 170( 2). We reject Len' s challenge to the ALJ' s credibility findings. VI. PSYCHOLOGICAL EVALUATION Len next argues that the ALJ erred in affirming the agency' s directive that Len must submit to a psychological evaluation and counseling as a condition for reinstatement of his teaching certification. ll We disagree. A party challenging factual findings on appeal must do more than " argu[ e] his version of the facts while ignoring testimony by practice." explicitly that supports each authorize imposition of " In re finding." OSPI' s conditions precedent to resuming professional WAC 181- 86- 070( 2). OSPI' s regulations authorize imposition of "conditions precedent to resuming District witnesses Against Kagele, 149 Wn.2d 793, 814, 72 P. 3d 1067 ( 2003). Disciplinary Proceeding regulations other professional described Len' s practice." behavior WAC 181- 86- 070( 2). as " alarming." CP at In the record before the ALJ, the 798. The ALJ concluded that a psychological evaluation was appropriate given that Len' s conduct fell so far outside acceptable boundaries " for teacher relationships" appropriate student - that it " resemble[ d] grooming." CP at 29, 32. The ALJ also concluded, based on testimony about Len' s conduct, that Len demonstrated a " behavioral of discipline." problem," CP at one of the factors relevant to determining " the appropriate level and range 30; WAC 181- 86- 080( 6). Len again asks us to substitute our interpretation ii WAC 181- 86- 013( 3) requires that a certified teacher must not have a behavioral problem; this is among the factors that the agency must consider prior to issuing a disciplinary order. WAC 18186- 080 (" Prior to issuing any disciplinary order under this chapter the superintendent of public shall consider, at a minimum, the following factors to determine the appropriate instruction ... level and range of discipline ... ( 6) Any activity that demonstrates a behavioral problem."). 15 No. 45534 -0 -II of the facts for the ALJ' s interpretation and we decline to do so. Under WAC 181- 86- 070( 2), the ALJ had a legal and factual basis for requiring Len to submit to a psychological evaluation as a condition for reinstatement of his teaching certificate. Len' s arguments fail. VII. WAC 181- 86- 080 DISCIPLINARY FACTORS Len argues that the ALJ' s analysis of the disciplinary factors in WAC 181- 86- 080 was flawed as a matter of law and he asks this court to substitute its interpretation of the facts for the ALJ' s interpretation. The State responds that the ALJ' s findings are supported by substantial evidence and those findings supported the ALJ' s consideration of the disciplinary factors in WAC 181- 86- 080. We agree with the State and address each of the relevant disciplinary factors. A. Seriousness of the Conduct and Actual or Potential Harm to Students Len challenges the ALJ' s legal conclusion that his conduct was serious and an actual or potential harm to students. In analyzing the first factor under the ALJ WAC 181- 86- 080( 1), concluded: Factor ( 1) — Seriousness of the acts, and actual or potential harm to persons or property. The Appellant' s acts were serious. He modeled for students violations of rules, and drew them into violating rules along with him. He showed extreme favoritism to students. certain students. He gave significant financial favors to some He interfered with relationships between parents and students and He flagrantly violated personal He caused actual harm by creating anxiety and guilt on the part of parents, and conflicts between parents and children. He created potential harm to the School District by exposing the District to the risk usurped the parental decision- making boundaries between teachers and role. students. . of litigation for his conduct. This factor weighs against the Appellant. CP at 30. Len argues that, because no witness testified that Len harmed any students, the ALJ lacked a factual basis to conclude that he caused " actual or potential 101 harm." Br. of Appellant at 25. But No. 45534 -0 -II the. ALJ made detailed findings, based on testimony, that Len' s interactions with his students shocked" parents, disappointed students," " usurped drew students, the parental into violating other teachers, " interfered with relationships between parents and. decision- making rules with him. CP role," showed at 9, 28, 30. certain students " favoritism," and Based on this testimony, the ALJ properly concluded that Len' s conduct was serious, and caused both actual and potential harm. Len asks us to substitute our interpretation of the facts for that of the ALJ, but he fails to show that the hearing officer' s factual determinations were not supported by substantial evidence. Nor does Len show that the ALJ committed legal error in making her conclusions of law; rather, he asks us to draw different conclusions from the same evidence. " We will not overturn `findings based simply on an alternative explanation or version of the facts previously rejected by the hearing officer and Board."' P. 3d 435 ( 2009) ( In re Disciplinary Proceeding Against Eugster, 166 Wn.2d 293, 314, 209 quoting In re Disciplinary Proceeding Against Poole, 156 Wn.2d 196, 212, 125 P. 3d 954 ( 2006)). Len fails to show how the ALJ' s treatment of the first factor in WAC 181- 86- 080 was legal error and thus his argument fails. B. Criminal History Len next argues that the ALJ did not give sufficient weight to the second factor in WAC 181- 86- 080 —that he had history. at 30. Len' s The Appellant has no criminal no criminal history. history. The ALJ This factor concluded, " weighs Factor ( 2) — Criminal in favor of the Appellant." CP Contrary to Len' s argument, the ALJ' s conclusion clearly states that this factor weighs in favor; Len fails to show how this conclusion this second factor. 17 is legal error. Thus, Len' s argument fails on No. 45534 -0 -II C. Disregard for Health, Safety, or Welfare of Students As to the fifth factor in WAC 181- 86- 080( 5), the ALJ concluded: Factor ( 5) — Whether conduct demonstrates a disregard for health, safety or The Appellant' s conduct demonstrates a disregard for the welfare of welfare. students, parents, and the parent- child relationship, for the reasons discussed under factor ( 1), above. His fast driving with students in his vehicle in the Wilburton Park incident demonstrates a disregard for their safety. This factor weighs against the Appellant. CP at 30. Len argues that, because none of the State' s witnesses testified that he was a threat to the students, the ALJ did not have sufficient evidence to conclude as a matter of law that his conduct demonstrated a disregard for health, safety or welfare. The ALJ relied on the same facts presented in her analysis of the first factor in WAC 18186- 080( 1), to reach as well as testimony about Len driving students to various locations outside of school, her conclusion on We hold that the ALJ' s findings of fact supported the this factor. conclusion that this fifth factor weighed against Len. D. Character and Fitness— Mitigating Factors Len then argues that the ALJ ignored mitigating factors and factors supporting his character and fitness weight hearing under to "[ WAC 181- 86- 080( 9) 10). Specifically, Len asserts that the ALJ gave little t] he fact khat virtually all students who were interviewed by OPP or testified at [ the] expressed Appellant and ( at qualification 30. to dismay He that Mr. Len argues continue that this in the teaching would receive was a discipline for his interactions." mitigating factor profession." 18 Br. of and " Appellant Br. of strongly support[ ed his] at 31. He also argues that No. 45534 -0 -II the failure of students' parents to object to Len' s interactions prior to the District' s investigation is a mitigating factor ignored by the ALJ. Len argues that we should draw a different conclusion from the same facts. But we do " not substitute our judgment for that of the agency as to the facts.... Evidence may be substantial enough to support a factual finding even if the evidence is conflicting and could lead to other reasonable interpretations." Gibson, 185 Wn. App. at 53. We hold that the ALJ' s factual findings support its conclusion that a 12 month suspension from teaching, and a psychological examination and counseling before reinstatement, was an appropriate discipline. VIII. THE ADMINISTRATIVE ADJUDICATIVE PROCEEDING Finally, Len argues that ( 1) the ALJ erred as a matter of law in holding the appeal hearing de novo, rather than requiring the OPP to prove and defend its investigative facts in support of its proposed discipline, 12 ( 2) the APA does not authorize de novo review in these appeal hearings, and ( 3) the ALJ erred by not reviewing the same record that OPP reviewed in proposing its 12 month suspension of his teaching certificate. We disagree. The plain language 13 of the APA' s formal adjudicative process allows the ALJ to review additional evidence from the parties; the 12 On November 14, 2011, OSPI issued a final order suspending Len' s teaching certificate for 12 months. On December 9, 2011, Len appealed that suspension order under WAC 181- 86- 150, which. provides administrative a formal hearing in review process conformance requiring the the [ APA], with superintendent chapter to " conduct a formal 34. 05 RCW." WAC 181- 86- 150( 2). 13 " To discern the plain meaning of undefined statutory language, we give words their usual and ordinary meaning and interpret them in the context of the statute in which they appear." Protect the Peninsula' s Future v. Growth Mgmt. Hr' gs Bd., 185 Wn. App. 959, 969, 344 P. 3d 705 ( 2015). 19 No. 45534 -0 -II State has the burden of proof, and both the State and Len were allowed to submit additional evidence for the ALJ to consider at the appeal hearing. The ALJ did not err. The RCW 34. 05. 422( 1)( of an hearing appeal c) (" an opportunity for appeal before the ALJ agency may was a formal APA " adjudicative proceeding." suspend ... not ... an appropriate adjudicative a license unless the agency gives notice proceeding"); see WAC 181- 86- 150( 2). At the hearing, " the presiding officer shall afford to all parties the opportunity to respond, present evidence and argument, conduct cross- examination, and submit rebuttal evidence" for full disclosure of all relevant facts and issues." RCW 34. 05. 449( 2). as necessary Under the APA, OSPI may designate an ALJ as the presiding officer to make the final decision and enter the final order in teacher certification matters. See DaVita, Inc. v. Dep' t of Health, 137 Wn. App. 174, 182, 151 P. 3d 1095 ( 2007) ( Washington' officer authorized to make a s APA permits an agency to designate an ALJ as the presiding final decision and enter a final order); RCW 34. 05. 425( 1)( b). R] ather than reviewing the record, the presiding officer actually takes the evidence, listens to oral argument, and issues her RCW 34. 05. 449( 2), . 461( 4). proof and the right to own findings and conclusions." DaVita, 137 Wn. App. at 182; In this APA formal adjudicative proceeding, OSPI has the burden of present all relevant evidence WAC 181- 86- 170( 2). Fill to meet its burden. RCW 34. 05. 449( 2); No. 45534 -0 -II Similarly, Len had the opportunity to present any additional evidence for the ALJ to Len fails to show that the ALJ erred in following the formal process, or that the consider. ALJ should have been otherwise restricted to a less complete factual record. 14 Nor does Len explain how the ALJ' s more comprehensive review of evidence amounted to an error of law. Because RCW 34. 05. 449( 2) and WAC 181- 86- 150 required the formal APA adjudicative process in Len' s appeal hearing and the opportunity to submit additional evidence, his arguments fail. CONCLUSION Substantial evidence supports the ALJ' s findings of fact that Len violated generally recognized professional standards of teacher conduct. and that he violated the principal' s contact no - directives. The ALJ correctly weighed the disciplinary factors in WAC 181- 86- 080 and, because the factual findings are supported by substantial evidence, they support the ALJ' s conclusions of law. The ALJ correctly applied a de novo review standard and allowed additional evidence during the APA appeal hearing under RCW 34. 05. 449( 2) and WAC 181- 86- 150. 14 Len cites to Hoagland v. Mount Vernon Sch. Dist. No. 320, 95 Wn.2d 424, 623 P. 2d 1156 ( 198 1) for the proposition that de novo review is not appropriate under the APA unless it is expressly required by statute. This is not a correct interpretation of Hoagland; in that case our Supreme ' Court held that a 1976 amendment to former RCW 28A.58. 480 required the superior court to apply the same standard of review as that prescribed in the APA. Id. at 427 n.2. Hoagland did not hold that de novo review is precluded unless expressly required by statute. 21 No. 45534 -0 -II We affirm OSPI .. final order suspending Len' s teacher' s certificate for 12 months and requiring s him to undergo a psychological examination as a condition for reinstatement. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040, it is so ordered. Ae+ fMJ11 SUTTON, J. We concur: P JRA IN, A. J. a WC SWICK, J. 22

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