FILED: February 8, 2007
IN THE SUPREME COURT OF THE STATE OF OREGON
TEACHER STANDARDS AND
PRACTICES COMMISSION,
Respondent on Review,
v.
KARIN L. BERGERSON,
Petitioner on Review.
(TSPC 584001-GE0327-01; CA A122752;
SC S52842)
On review from the Court of Appeals.*
Argued and submitted September 11, 2006.
Thomas K. Doyle, of Bennett, Hartman, Morris & Kaplan LLP,
Portland, argued the cause and filed the brief for petitioner on
review.  With him on the brief was Aruna A. Masih.
Judy C. Lucas, Assistant Attorney General, Salem, argued the
cause and filed the brief for respondent on review.  With her on
the brief were Hardy Myers, Attorney General, and Mary H.
Williams, Solicitor General.
Before De Muniz, Chief Justice, and Carson,** Gillette,
Durham, Riggs,*** and Balmer, Justices.****
GILLETTE, J.
The decision of the Court of Appeals is reversed.  The final
order of the Teacher Standards and Practices Commission is
reversed, and the case is remanded to the Teacher Standards and
Practices Commission for further consideration.
*Appeal from final order of the Teacher Standards and
Practices Commission.  200 Or App 415, 115 P3d 988 (2005).
**Carson, J., retired December 31, 2006, and did not
participate in the decision of this case.
***Riggs, J., retired September 30, 2006, and did not
participate in the decision of this case.
****Kistler, Walters, and Linder, JJ., did not participate
in the consideration or decision of this case.
GILLETTE, J.
In this judicial review proceeding, a long-time
elementary school teacher challenges a final order of the Teacher
Standards and Practices Commission (TSPC) suspending her teaching
license for a period of 60 days.  She contends that the order
does not establish that certain acts that she committed in 2001
constitute either "gross neglect of duty" or "gross unfitness,"
as those terms are used in the statutes and rules that authorize
the TSPC to suspend teachers' licenses.  She also challenges the
TSPC's order on the ground that the TSPC failed to identify and
explain modifications that it made to a proposed order issued by
the administrative law judge (ALJ) who heard the case.  We
conclude that petitioner's challenges are well taken. 
Accordingly, we reverse the decision of the Court of Appeals that
upheld the TSPC order.  We also reverse the final order of the
TSPC and remand the case to the TSPC for further consideration.
FACTS AND PROCEDURAL BACKGROUND
Although certain factual findings in the TSPC's order
are a subject of controversy, there appears to be no dispute
about the following facts.  Petitioner graduated from the Oregon
College of Education in 1976 and married a few years later.  In
1986, having already had some teaching experience, petitioner
accepted a teaching position in an elementary school in the
Salem-Keizer School District, where she remained for the next 15
years.  During that 15-year period, petitioner consistently
received positive performance reviews.  
In 1998, petitioner and her husband began to experience
marital difficulties and, in December 1999, petitioner's husband
moved out of the family home.  A few months later, petitioner's
husband moved in with Siebler, a girlfriend.  He did not tell
petitioner where he was living or about his relationship with
Siebler.  Petitioner apparently continued to hope that she and
her husband would reconcile. 
On August 22, 2000, petitioner's husband was seriously
injured in a motorcycle accident and was taken to a hospital in
Portland.  Petitioner was contacted as the next of kin.  She
rushed to the hospital, signed the necessary medical
authorizations, and remained at her husband's bedside for the
next three days.  Petitioner's husband was in a coma for the next
few weeks and underwent five surgeries.  Petitioner rearranged
her work schedule and traveled from Salem to Portland every day
to be with her husband and to participate in medical decisions.  
On September 12, 2000, a Salem lawyer visited
petitioner's husband in the hospital.  During the lawyer's visit,
petitioner's husband signed a durable power of attorney
appointing the lawyer as his agent. (1)  Within a week, the
lawyer was working toward filing a divorce action on behalf of
petitioner's husband.  In conjunction with those efforts, the
lawyer moved for and obtained a temporary ex parte order
enjoining petitioner and her husband from altering marital assets
or insurance policies and from "harassing, molesting, or
interfering in any manner with the other."  The lawyer then sent
a letter to petitioner's domestic relations lawyer to the effect
that petitioner's husband did not want petitioner to contact or
visit him.  Petitioner's lawyer advised her that she should limit
contact with her husband to discussions concerning the couple's
two children and their joint financial obligations. (2) 
On September 24, 2000, petitioner's husband was
transferred to a rehabilitation center in Salem.  There,
petitioner walked into her husband's room while Siebler was
visiting and learned, apparently for the first time, that her
husband had a girlfriend and had been living with her.  At around
that time, petitioner also learned that her husband had filed for
divorce.  
Later in the fall, petitioner experienced another
emotional setback:  She learned some very troubling news
concerning her 17-year old son.  Petitioner also was experiencing
financial difficulties, at least in part because her husband
refused to pay child support for one of the couple's two
children. 
On January 6, 2001, petitioner drove to the home that
her husband was sharing with Siebler, hoping to speak to him and
to deliver certain items to him.  After an acrimonious
interchange with her husband on Siebler's doorstep, petitioner
returned to her car, which was parked down the street, and
ingested a large quantity of three different prescription
medications.  Petitioner then drove her car up the street, turned
into Seibler's driveway, and slammed her car into the rear of her
husband's unoccupied truck.  The truck was pushed forward by the
impact into Seibler's garage door, which was destroyed along with
a brick facade on the house's exterior.  Petitioner's car was
going between 20 and 30 miles per hour when it crashed into the
truck.
Following the crash, Keizer police officers and
paramedics arrived and found petitioner slumped over the steering
wheel of her car, disoriented and unresponsive.  She was
transported to Salem hospital.  After a one-night medical stay,
petitioner admitted herself to the hospital's psychiatric unit,
where she remained for seven days.  There, her treating
psychiatrist diagnosed her with "Major Depressive Disorder,
single episode, severe."  Upon her release, she began treatment
with another psychiatrist.
Petitioner ultimately was charged in the incident with
four counts of criminal mischief in the first degree.  Pursuant
to a plea agreement, she pleaded no contest to one of the four
counts.  She was sentenced to a term of probation that provided
that, if she fulfilled all the conditions of probation and paid
restitution for the damage that she had caused, the court would
dismiss the charge.
Two articles about the incident appeared in local
newspapers.  Both articles reported, erroneously, that petitioner
had been driving 80 miles per hour at the time of the accident. 
Parents, teachers, and students at petitioner's school learned
about the incident through those newspaper articles and word of
mouth.  A number of parents contacted the school at that time and
expressed concern about petitioner's fitness to teach. 
Petitioner took a number of months off from work but
eventually, with the agreement of her treating psychiatrist,
announced that she was ready to return to the classroom.   
However, the district superintendent recommended to the school
board that petitioner be dismissed, based on the January 2001
incident.  The school board ultimately accepted that
recommendation and terminated petitioner, effective January 2002.
Petitioner appealed her termination to the Fair
Dismissal Appeals Board (FDAB).  After a hearing, the FDAB
reversed the dismissal and ordered the school district to
reinstate petitioner.  The district sought judicial review of
that order and also sought to stay enforcement of the order
pending judicial review.  The FDAB denied the requested stay and
the Court of Appeals affirmed that decision.  Bergerson v. Salem-Keizer School Dist., 185 Or App 649, 60 P3d 1126 (2003).  Later,
the Court of Appeals held that the FDAB had not adequately
explained its reason for concluding that the dismissal was
unreasonable and excessive, and remanded.  Bergerson v. Salem-Keizer School Dist., 194 Or App 301, 95 P3d 215 (2004).  We
recently affirmed that Court of Appeals decision.  Bergerson v.
Salem-Keizer School Dist., 341 Or 401, 144 P3d 914 (2006). 
In the meantime, petitioner's conduct had come to the
attention of the TSPC, which is authorized to suspend or revoke
the licenses of teachers and school administrators for, among
other things, "gross unfitness" and "gross neglect of duty."  ORS
342.175(1)(b) and (c); see also OAR 584-020-0040(4) (TSPC rule
defining gross neglect of duty); OAR 584-020-0040(5) (TSPC rule
defining gross unfitness).  The TSPC ultimately charged
petitioner with "gross unfitness" and "gross neglect of duty" in
late 2002.
Petitioner requested a hearing.  Pursuant to ORS
342.177(1)(a), the TSPC engaged an ALJ from the Office of
Administrative Hearings to conduct that hearing.  After the
hearing, the ALJ issued a proposed order that included extensive
findings of fact and conclusions of law.  The ALJ concluded that
petitioner's actions did constitute a crime -- criminal mischief
in the first degree.  However, the ALJ ultimately determined that
those acts did not amount to "gross neglect of duty," as that
term is defined in TSPC's administrative rules, because there was
no "demonstrable relationship" between the conduct and
petitioner's professional duties as a teacher.  The ALJ also
rejected the TSPC's theory that the incident rendered petitioner
"grossly unfit" because the notoriety that the incident generated
in the community made it difficult for her to carry out her job
as a teacher.  Finally, the ALJ found that various mitigating
circumstances, including the fact that the conduct had occurred
at a time when petitioner was facing a variety of very
distressing personal issues, weighed "overwhelmingly on the side
of mitigation."  Accordingly, the ALJ concluded that suspension
of petitioner's teaching license was not warranted.
Thereafter, the TSPC issued a proposed final order that
deleted or altered some of the ALJ's findings of fact and added a
large number of its own findings.  The proposed final order also
reached a different set of conclusions.  Specifically, it
concluded that petitioner's actions amounted to both "gross
neglect of duty" and "gross unfitness," that the conduct was not
an isolated event but the culmination of a months-long pattern of
improper conduct, that petitioner's distressing personal
circumstances were not grounds for mitigation, and that
suspension of petitioner's teaching license was warranted.  
Petitioner filed exceptions to the TSPC's proposed
final order, arguing that the order was contrary to the evidence
and that it relied on erroneous interpretations of the TSPC's
statutes and administrative rules.  Petitioner also noted that
the TSPC's proposed order drastically modified the ALJ's findings
and legal conclusions.  She excepted to "each and every instance
where the [TSPC] has changed, altered, deleted, or in any other
way differed from [the ALJ's] decision in this matter."  In spite
of petitioner's exceptions, the TSPC entered the proposed final
order as its final order on October 9, 2003.  Petitioner sought
judicial review of that final order in the Court of Appeals, and
that court affirmed the final order of the TSPC without opinion. 
Teacher Standards and Practices v. Bergerson, 200 Or App 415, 115
P3d 988 (2005).  
Petitioner then sought review by this court.  We
allowed her petition to consider (1) whether the TSPC properly
interpreted and applied the relevant statutes and rules; and (2)
whether the TSPC violated applicable procedural restrictions by
substantially modifying the ALJ's proposed order without
identifying and adequately explaining those modifications. 
APPLICABLE LAW
Before we address petitioner's specific concerns, we
set out the relevant statutes and administrative rules.  ORS
342.175 authorizes the TSPC to suspend or revoke teachers'
licenses.  Subsection (1) of that statute sets out various
grounds for suspension or revocation, including:

"(b) Gross neglect of duty;  
"(c) Any gross unfitness[.]"

Subsection (5) of ORS 342.175 also refers to "gross neglect of
duty" and "gross unfitness."  It provides:

"Violation of rules adopted by the commission relating
to competent and ethical performance of professional
duties shall be admissible as evidence of gross neglect
of duty or gross unfitness."

ORS 342.175(5).  
Citing the latter subsection as authority, the TSPC has
adopted "Standards for Competent and Ethical Performance of
Oregon Educators" (TSPC Standards), which appear at OAR 584-020-0005 through OAR 584-020-0045.  One part of the TSPC Standards 
defines "gross neglect of duty" in the following terms:

"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:
"* * * * *
"(o) Substantial deviation from professional standards
of ethics set forth in OAR 584-020-0035[.]"

OAR 584-020-0040(4).  Another part of the TSPC Standards, OAR
584-020-0035, sets out the "professional standards of ethics" 
cross-referenced in the foregoing rule.  It includes the
following admonition, upon which the TSPC relies:

"The ethical educator is a person who accepts the
requirements of membership in the teaching profession
and acts at all times in ethical ways.  In so doing the
ethical educator considers the needs of the students,
the district, and the profession.
"* * * * *
"(3) The ethical educator, in fulfilling obligations to
the profession, will:
"(a) Maintain the dignity of the profession by
respecting and obeying the law, exemplifying personal
integrity and honesty[.]" 

OAR 584-020-0035 (emphasis added). 
The TSPC Standards also define "gross unfitness" that
may trigger a proceeding to suspend a teacher's license:

"Gross unfitness is 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.  The
following may be admissible as evidence of gross
unfitness.  Consideration may include but is not
limited to:
"* * * * *
(e) Admission of or engaging in acts constituting
criminal conduct, even in the absence of a
conviction[.]"

OAR 584-020-0040(5).  
Based on the foregoing administrative rules, the TSPC
concluded that petitioner's license should be suspended for
"gross unfitness" as it is defined in OAR 584-020-0040(5)(e),
because her acts on January 6, 2001, were "acts constituting
criminal conduct," i.e., criminal mischief, a Class C felony,
and, because, as those acts became known in the school community,
they had a detrimental effect on her ability to perform her job. 
In a related vein, the TSPC concluded that petitioner's license
should be suspended for "gross neglect of duty" because her
criminal conduct on January 6, 2001, constituted a "substantial
deviation" (OAR 584-020-0040(4)(o)) from the TSPC's ethical
requirement, set out at OAR 584-020-0035(3)(a), that teachers
maintain the dignity of the profession by obeying the law at all
times.
GROSS NEGLECT OF DUTY 
We turn, first, to the charge of "gross neglect of
duty."  Petitioner contends that the TSPC's administrative rule
defining "gross neglect of duty" ignores a requirement that is
implicit in the statutory term -- that there must be a clear
nexus between the conduct at issue and the teacher's professional
responsibilities.  Petitioner contends that the administrative
rule departs from that implicit requirement insofar as it defines
"gross neglect of duty" to include any breach of the teacher's
duty to behave ethically at all times.  Petitioner thus argues
that the TSPC's decision to suspend her teaching license relies
on a rule that is invalid because it is contrary to the
legislature's intent.    
In its final order, the TSPC essentially acknowledged
that "gross neglect of duty" is limited to conduct that bears
some relationship to the professional responsibilities of
teachers (indeed, it is hard to imagine that the word "duty" in
that phrase could refer to anything other than professional
responsibilities).  The TSPC insisted, however, that such a nexus
existed:

"Under ORS 342.165(5) and 342.175(1), the
Commission has authority to establish standards of
professional conduct and to define gross neglect of
duty and gross unfitness.  It has defined gross neglect
of duty to include a substantial deviation from
professional ethics under the rules relating to the
ethical conduct.  OAR 584-020-0040(4)(o).  This rule
states that an educator will act ethically 'at all
times[,]' OAR 584-020-035; and in fulfilling this
obligation, will 'maintain the dignity of the
profession by respecting and obeying the law,
exemplifying personal integrity and honesty.
"The plain text of the rule defines a teacher's
professional obligation to include respecting and
obeying the law.  The rule does not limit this
obligation to conduct at school or during school hours. 
In fact, the rule expressly imposes the obligation to
act ethically 'at all times.'" 

Thus, the TSPC's order does not assert any particular
relationship between petitioner's criminal conduct and a
teacher's professional responsibilities, as those
responsibilities commonly are understood.  Rather, it relies on
the fact that the TSPC itself has promulgated rules defining the
professional responsibilities of teachers to include a duty to
obey the law "at all times." 
The question, of course, is whether the TSPC has
authority for disciplinary purposes to define the professional
duties of teachers in that manner.  The TSPC claims that it does: 
It contends that, inasmuch as ORS 342.175(5) provides that
violation of "rules adopted by the [TSPC] relating to competent
and ethical performance of professional duties shall be
admissible as evidence of gross neglect of duty or gross
unfitness," that statute broadly delegates policy-making
authority to the TSPC with respect to defining teachers'
professional duties.  The TSPC also contends that the phrase
"gross neglect of duty" is, in itself, delegative, in the sense
that this court discussed in Springfield Education Assn. v.
School Dist., 290 Or 217, 621 P2d 547 (1980):  Like other terms
identified as delegative in Springfield -- "good cause," "fair,"
"unfair," "undue," and "unreasonable" -- the phrase "gross
neglect of duty" "'calls for completing a value judgment that the
legislature itself has only indicated.'"  Id. at 228 (quoting
McPherson v. Employment Division, 285 Or 541, 550, 591 P2d 1381
(1979)).
We are not persuaded.  It is true that the phrase
"gross neglect of duty" invites further specification.  It also
is true that the statutes convey general rulemaking authority to
the TSPC, ORS 342.165(1), as well as specific authority to adopt
rules "relating to competent and ethical performance of
professional duties," ORS 342.175(5).  But those circumstances do
not add up to a delegation of authority to expand the notion of
professional duty beyond the scope that the legislature intended
the term to have.  In fact, because ORS 342.175(1)(b) and (5)
refer to a teacher's professional "duty," any rulemaking
authority that the TSPC might garner from those provisions is
limited by the legislature's view of the boundaries of that term. 
In other words, at least with respect to that term, the TSPC's
role is interpretive, not legislative.   
In the present case, the TSPC relied on rules that
define a teacher's professional duties as including a requirement
that teachers behave ethically and lawfully at all times and
provide that any substantial deviation from that requirement is
sanctionable as "gross neglect of duty."  Our task is to
determine whether those definitions are consistent with the
legislature's intent.  We conclude, with little difficulty, that
they are not.  In ordinary parlance, professional duties are
specific to a profession and are distinct from the moral and
civic obligations of all citizens to behave ethically and to obey
the law at all times.  There is nothing in the statutes to
indicate that the legislature intended the term "professional
duty," as expressed in ORS 342.175(5) and implied in ORS
342.175(1)(b), to have anything other than that ordinary meaning. 
Depending on the profession at issue, there may be some areas
where professional responsibilities and universally applicable
moral and civil obligations may overlap, but the TSPC's position
that teachers have a professional obligation to behave ethically
and lawfully "at all times" eradicates the boundary between
private and professional obligations altogether.  The rule, at
least as the TSPC purports to employ it in its final order in
this case, is inconsistent with the the legislature's
intent. (3)  The TSPC offers no other basis for arguing that
petitioner neglected her duties.  It follows that the TSPC's
rationale for suspending petitioner for "gross neglect of duty"
is erroneous.  
GROSS UNFITNESS
We turn to the issue of "gross unfitness."  OAR 584-020-0040(5), promulgated by the TSPC, defines "gross unfitness"
in general terms as "any conduct which renders an educator
unqualified to perform his or her professional responsibilities." 
The same rule expressly requires that, when off-duty conduct is
at issue, the conduct must be related to the teacher's
professional duties: "Conduct constituting gross unfitness may
include conduct occurring outside of school hours and off school
premises when such conduct bears a demonstrable relationship to
the educator's ability to fulfill professional responsibilities
effectively."  Id. (Emphasis added.)  Finally, the rule
explicitly declares that "acts constituting criminal conduct" may
be considered as evidence of gross unfitness.  OAR 584-020-0040(5)(e).
In its final order, the TSPC concluded that petitioner
should be suspended for "gross unfitness," based on the January
6, 2001, incident, because the reactions of students, parents,
and other members of the school community who learned about the
incident from newspaper accounts had some demonstrable negative
impact on petitioner's ability to perform her professional duties
effectively.  According to the TSPC's final order:

"As a result of [petitioner's] conduct, a significant
number of parents were concerned about the safety of
their children, the reliability of [petitioner] and the
ability of the district to insure an appropriate and
safe learning environment.   The incident had a
negative effect on the public image of the school, a
negative effect on [petitioner's] ability to relate to
her students and parents and a negative effect on her
ability to be an effective classroom teacher."

Notably, the final order addressed only that part of the rule
that pertains specifically to off-duty conduct (i.e., the part
that provides that off-duty conduct may constitute gross
unfitness only if it bears a demonstrable relationship to the
teacher's professional effectiveness).  In fact, the order
suggested that the rule's broader point -- that "gross unfitness"
is conduct rendering a teacher unqualified to perform his or her
professional duties -- is irrelevant. (4) The TSPC also
expressly rejected petitioner's argument that the rule is
directed solely at the teacher's ability to carry out his or her
professional responsibilities effectively at the time of the
hearing.  It relied entirely on the immediate reactions of
students, staff, and the community to the events of January 6,
2001, to find that petitioner's conduct has had a detrimental
effect on her teaching effectiveness.      
Petitioner contends that the TSPC's final order is
erroneous insofar as it suggests that, with respect to the charge
of "gross unfitness," the relevant inquiry is whether the conduct
has had a "negative effect" on a teacher's ability to perform her
duties, rather than whether the conduct renders the teacher
"unqualified" to perform such duties.  We agree with petitioner
that the rule incorporates a standard -- "unqualified" -- to
which the final order is unresponsive, in that it suggests that
all that is required is some "negative effect" on the performance
of duties.
In response, the TSPC suggests that the final order
reflects its own "plausible interpretation" of OAR 584-020-0040(5)(e) as "permitting the commission to conclude from the
evidence of criminal conduct and the other circumstances in a
particular case that the criminal conduct rendered the teacher
unqualified."  It contends that, because OAR 584-020-0040(5)(e)
is its own rule, we should accept its interpretation unless we
conclude that that interpretation is inconsistent with the rule's
text and context or with some other source of law.  Applying that
"interpretation," the TSPC now suggests that:

"the commission was entitled to conclude from the
findings that parents did not want [petitioner] to
return to her class and that parents and teachers were
'alarmed' by her conduct, and from the evidence that
parents' confidence in the safety of her classroom was
undermined as a result of her conduct, that
[petitioner] was unqualified, under the rule."

Even if we accept the TSPC's claim that we owe
deference to any plausible TSPC interpretation of its own rule,
no such deference would be due in the present case because the
TSPC's asserted "interpretation" of the rule is not an
interpretation at all.  It is merely a claim of authority to
determine, on an ad hoc basis, that a set of circumstances
amounts to grounds for suspension.  Moreover, the TSPC's final
order never alluded to that "interpretation," or to the
"unqualified" standard that the TSPC now purports to interpret. 
However much it may seek to explain its decision now, the TSPC
cannot escape the fact that its final order never explained how
the facts on which it relied -- parent and student complaints,
and press-coverage -- demonstrated that petitioner was unfit.  
The most that can be said of that evidence is that some people
(none of them educational professionals) wondered if petitioner
were unfit.  But the legal standard that the TSPC was purporting
to apply focuses on petitioner's actual capacity, not on others'
attitudes about that capacity.
Petitioner also argues that the TSPC's explanation
misses the fact that both the term used in OAR 584-020-0040(5) -- "unqualified" -- and the term used in ORS 342.175(1)(c) --
"unfitness" -- refer to a persistent status or character trait,
and not simply to an instance of unlawful or undesirable conduct. 
Petitioner acknowledges that an instance of bad behavior may
exemplify or demonstrate that a teacher is "unqualified" or
"unfit," but argues that the TSPC's final order does not discuss
her conduct in that light.  Rather, she notes, the order appears
to treat any conduct that has a deleterious effect on a teacher's
performance as equivalent to gross unfitness.  Petitioner also
notes that the TSPC's evidence in support of "gross unfitness"
all relates to past community reaction to the incident, while the
TSPC's rule appears to contemplate that there will be a
sufficient present relationship to a teacher's professional
responsibilities.  
We agree with petitioner that the phrase "unqualified
to perform * * * professional responsibilities" in OAR 584-020-0040(5) can be read to implicate only a status or trait that is
both harmful and persistent.  Although it is true that the rule
refers to "conduct," it is specifically limited to conduct that
"renders [a teacher] unqualified."  That limitation is satisfied
only if the conduct causes or demonstrates a lack of
qualification, i.e., some status or trait that establishes that
the teacher cannot fulfill her professional responsibilities. 
In our view, OAR 584-020-0040(5) must be read in that
manner, i.e., as referring primarily to a disqualifying status or
trait, in order to remain consistent with the statutory term -- "gross unfitness" -- that it purports to interpret:  Like the
term "unqualified," "unfitness" suggests a disqualifying status
or trait, rather than a single, simple instance of undesirable
conduct. (5)  That focus on a trait or status is confirmed by
the overall context in which the term "gross unfitness" appears. 
We assume that, when the legislature authorized the TSPC to
suspend teachers for "gross unfitness" in ORS 342.175(1)(c), it
did not intend merely to duplicate the conduct-based reason for
suspension that immediately preceded it at ORS 342.175(1)(b),
i.e., "gross neglect of duty."  Given the statutory context, we
read the phrase "conduct that renders an educator unqualified" in
OAR 584-020-0040(5) as focusing on conduct only insofar as such
conduct demonstrates or causes a disqualifying character trait or
status. 
We also agree with petitioner that OAR 584-020-0040(5)
authorizes suspension only when the disqualifying status or
character trait exists at the time of the hearing.  We note, in
that regard, that the rule uses the present tense:  It refers to
conduct that "renders [the teacher] unqualified" to perform his
or her professional duties and, more specifically, to off-duty
conduct that "bears a demonstrable relationship" to his or her
ability to perform such duties.  
The TSPC brushes aside the choice of tense, arguing on
policy grounds for an interpretation that looks at past as well
as present conditions.  It argues that a present-focused reading
would preclude it from disciplining teachers for off-duty conduct
"in all cases where the teacher had made rehabilitat[ive]
progress between the time of the offense -- no matter how
egregious -- and the time of the hearing."  But even if that were
true, (6) we cannot ignore the clear import of the rule's
choice of tense.  
In summary, OAR 584-020-0040(5) refers to a character
trait or status that is incompatible with a teacher's
professional responsibilities.  Such a trait or characteristic
may be demonstrated by the teacher's past conduct, but the trait
or characteristic must exist at the time of the TSPC disciplinary
hearing.  To the extent that the TSPC seeks to show that such a
trait or status exists through a teacher's past off-duty conduct,
it must show that the conduct is substantially related to the
teacher's present ability to teach effectively.  
The TSPC's position in its final order -- that "gross
unfitness" refers to a teacher's past as well as current fitness
to teach -- is inconsistent with OAR 584-020-0040(5) and the
statute, ORS 342.175, that that rule purports to apply.  
THE TSPC'S MODIFICATIONS OF THE ALJ'S PROPOSED ORDER
We have concluded that the TSPC's final order relies on
erroneous interpretations of the relevant rules and statutes. 
Those conclusions constitute sufficient grounds for reversal,
and, therefore, we could conclude our opinion at this point. 
However, we believe that a discussion of one of petitioner's
other arguments is warranted.  Specifically, petitioner argues
that the TSPC failed to identify and explain various substantial
modifications that it made to the ALJ's proposed order in its
final order, thereby violating ORS 183.650.  
ORS 183.650 provides, in part:

"(1) In any contested case hearing conducted by an
administrative law judge assigned from the Office of
Administrative Hearings, the administrative law judge
shall prepare and serve on the agency and all parties
to the hearing a form of order, including recommended
findings of fact and conclusions of law. * * *
"(2) If the administrative law judge assigned from
the office will not enter the final order in a
contested case proceeding, and the agency modifies the
form of order issued by the administrative law judge in
any substantial manner, the agency must identify the
modifications and provide an explanation to the parties
to the hearing as to why the agency made the
modifications." (7)

Petitioner notes that, in her case, an ALJ was assigned from the
Office of Administrative Hearings to preside over her TSPC
hearing and that, after the hearing, the ALJ issued a proposed
order that contained recommended findings of fact and conclusions
of law, as ORS 183.650(1) requires.  Petitioner further notes
that the TSPC did not adopt the ALJ's proposed order but,
instead, issued its own final order that modified the ALJ's
proposed form of order in a number of significant respects. 
First, it deleted a number of the ALJ's factual findings,
sometimes substituting its own alternative findings and sometimes
not. (8)  It also added a large number of its own factual
findings  (petitioner identifies 17 such additions), many of
which were directed at supporting the TSPC's theory that
petitioner had been "stalking" her husband for several months
before the January 2001 incident, in spite of clear signals that
her husband did not want any contact with her.  Finally, the TSPC
reversed the conclusions of law that the ALJ reached, relying at
least in part on its factual deletions, substitutions, and
additions.  Petitioner contends that those modifications were
"substantial" within the meaning of ORS 183.650(2).
Petitioner acknowledges that the TSPC identified and
explained a few of the foregoing modifications in its final
order.  For example, the TSPC expressly rejected, as unsupported
by a preponderance of the evidence, the ALJ's findings that (1)
petitioner had not received copies of certain letters from her
husband's attorney; (2) petitioner's husband had consented to
some contacts between the parties; and (3) petitioner's husband
had told petitioner that "he agreed they should talk, but not at
this time." (9)  Petitioner observes, however, that the vast
majority of the TSPC's modifications are not identified or
explained in the final order.  Petitioner concludes that the TSPC
violated ORS 183.650(2) and that reversal of the final order is a
proper remedy for that violation.   
The TSPC responds to that argument on a number of
levels.  The TSPC's primary response is that petitioner has
failed to show that its various modifications to the ALJ's
proposed order were "substantial" modifications within the
meaning of ORS 183.650(2). (10)  The TSPC notes that, according
to the administrative rules in effect at the time of the hearing,
"an agency modifies a proposed order in a 'substantial manner'
when the effect of the modifications is to change the outcome or
the basis for the order."  OAR 137-003-0665(3) (2001). (11) 
Relying on the foregoing rule, the TSPC asserts that, to prevail
on her claim, petitioner must show that "a challenged
modification to the ALJ's proposed order changed the outcome or
basis of the order and it was not adequately identified and
explained in the commission's final order."  Because petitioner
has not made that showing with respect to any of the commission's
modifications, the TSPC argues, her claim of error under ORS
183.650(2) necessarily fails. 
Assuming that the definition of "substantial manner" in
OAR 137-003-0665(3) (2001) reasonably conforms to the
legislature's intentions, the TSPC's description of petitioner's
burden under that rule nonetheless is based on an erroneous
reading of that rule.  The TSPC suggests that petitioner must
identify each modification that she believes to be substantial
and demonstrate that each one, by itself, changed the outcome or
basis of the order.  But the rule refers to "the effect of the
modifications" (plural) as changing the outcome.  Under that
wording, the agency's modifications are sufficiently substantial
to trigger the identification and explanation requirements of ORS
183.650(2) if, whether viewed individually or together, they have
the effect of changing the outcome.  It follows that the TSPC's
theory about the showing that petitioner was required to make is
incorrect:  Whatever the effect of any single modification might
have been, it is clear that the effect of the modifications as a
whole was to support the TSPC's theory that petitioner had
engaged in a months-long pattern of angry and delusional behavior
and that suspension of her license therefore was appropriate.    
The TSPC also argues that it reached a different
outcome based solely on its different interpretation of its "own
rules and statutes" and that, as such, none of the factual
changes that petitioner points to contributed to any modification
that could be deemed substantial.  We disagree.  At the very
least, the TSPC relied on the factual additions, deletions, and
alterations that petitioner identifies to reject the ALJ's
decisions respecting the existence of mitigating circumstances
and the appropriate sanction.  
In summary, we hold that the TSPC modified the ALJ's
proposed order in a substantial manner and that it therefore was
required to identify its modifications and explain why it made
them.  It failed to do so.  When and if it issues a new final
order on remand, it should, consistent with its obligation under
ORS 183.650(2), identify and explain any deletions, additions, or
alterations that modify the ALJ's proposed order in a substantial
manner.  
The decision of the Court of Appeals is reversed.  The
final order of the Teacher Standards and Practices Commission is
reversed, and the case is remanded to the Teacher Standards and
Practices Commission for further consideration.    


1. Apparently, petitioner's husband had spoken to the lawyer a week or two before the
accident about filing for divorce.  Siebler worked as a paralegal in that lawyer's office. 
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2. It is unclear from the record when petitioner retained counsel, or why.   
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3. We note that the ALJ interpreted the rules as extending to unlawful and unethical conduct
that occurs off-duty and off-premises, but only if there is a specific and demonstrable nexus
between the conduct and an educator's professional responsibilities.  The ALJ relied on the
repeated use of the term "profession" in OAR 584-020-0035(3)(a) (an ethical educator "accepts
the requirements of membership in the teaching profession," "considers the needs of the * * *
profession," and "maintains the dignity of the profession" in "fulfilling the obligations of the
profession") and the explicit reference to "breach of professional responsibilities" in OAR 584-020-0040(4)(o).  That interpretation of the rule may be consistent with the legislative intent
expressed in ORS 342.175, but the TSPC declined to adopt it.     
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4. Before this court, however, the TSPC clearly acknowledges that, under its own rule, it
must show that petitioner's conduct rendered her "unqualified to perform * * * her professional
responsibilities." 
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5. Obviously, there could be single instances of conduct -- shooting the principal over a teaching assignment comes to mind -- that would be
disqualifying.  But this case is nothing like that extreme example.
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6. In fact, there appears to be no impediment to suspending or otherwise disciplining a
teacher for any past offense that amounts to "gross neglect of duty," regardless of any intervening
rehabilitative progress.  
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7. At the time of petitioner's hearing, the provision at issue did not appear in the Oregon
Revised Statutes as ORS 183.650.  It was enacted as part of a centralized hearings office "pilot
project," as section 12 of Oregon Laws 1999, chapter 849.  Under section 1 of that same statute,
the entire pilot project, including section 12, had been "added to and made part of ORS 183.310
to 183.550."  
The original 1999 act, including section 12, was scheduled to sunset on January 1,
2004.  Or Laws 1999, ch 849, § 214.  However, in 2003, the legislature enacted an amended version of the provision, along
with other centralized hearings officer provisions, on a permanent basis.  Or Laws 2003, ch 75, § 11.  The provision was then codified at ORS 183.650.  For the sake of convenience, we
hereinafter refer to it as ORS 183.650.  
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8. Among other things, the TSPC deleted the ALJ's findings that "notoriety [about the
January 2001 incident] in the community was not widespread" and that, at the time of the
incident, petitioner had ingested drugs as part of a suicide attempt. 
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9. With respect to those modifications, petitioner disagrees with the TSPC's assessment of
the state of the evidence.  We need not resolve the dispute here. 
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10. On a more basic level, the TSPC argues that we should not consider petitioner's challenge
under ORS 183.650(2) because she failed to raise it before the TSPC.  In that regard, it notes,
correctly, that, in excepting to the TSPC's proposed final order, petitioner complained about the
wholesale nature of the TSPC's changes but did not cite ORS 183.650(2) or challenge the TSPC's
failure to identify and explain the changes as that statute requires.  Although we recognize the
distinction that the TSPC makes (and although we think that the question is a close one), we
ultimately conclude that a demand for an explanation is implicit in petitioner's exceptions.
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11. OAR 137-003-0665(3) (2001) has since been amended and now provides that "an agency
modifies a proposed order in a 'substantial manner' when the effect of the modifications is to
change the outcome or the basis for the order or to change a finding of fact."  
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