Nine grounds for dismissal are listed in ORS 342.865(1):
- neglect of duty, including duties specified by written rule;
- physical or mental incapacity;
- conviction of a felony or of a crime according to the provisions of ORS 342.143;
- inadequate performance;
- failure to comply with such reasonable requirements as the [school] board may prescribe to show normal improvement and evidence of professional training and growth; or
- any cause which constitutes grounds for the revocation of such contract teacher's teaching license.
The statute incorporates, by reference, the same grounds for dismissal or reduction in pay of an administrator. “An administrator may be dismissed or have a reduction in pay during the term of a contract for any reason set forth for dismissal of a teacher in ORS 342.865[.] ” See ORS 342.845(5)(a).
Dismissal cases decided by the Fair Dismissal Appeals Board over the years generally can be divided into two categories: “performance” based and “misconduct” based. The grounds typically cited in performance-based dismissals and non-extensions are inefficiency, inadequate performance, neglect of duty and failure to comply with reasonable requirements prescribed to show normal improvement. Grounds typically cited for dismissal in misconduct cases are neglect of duty, immorality, insubordination or alleged criminal misconduct that would be grounds for revoking a teaching license.
In “performance” based dismissals or non-extensions, the statutory evaluation requirements and related programs of assistance for improvement along with any written standards of performance become the focal point of the dismissal process and hearings. See ORS 342.865(2).
In “misconduct” cases, the dispute often involves allegations involving incidents occurring while the teacher is “on duty” or other circumstances when the teacher clearly is “off duty.”
Review of the enumerated statutory grounds as interpreted in FDAB cases.
This ground “may be shown by an accumulation of many incidents and situations, none of which alone would be sufficient for dismissal (cite omitted). It is normally shown by a series of incidents, over a period of time, that demonstrates a teacher’s inability to meet necessary standards (cite omitted). Inefficiency, in the panel’s opinion, refers to a teacher’s use of time, training, resources, etc., to meet the requirements of the job. Where that use is defective or lacking and the result is substantial interference with attainment of the requirements of the job or a significant detriment to the district, cause for dismissal for inefficiency exists. Hoover v. Hermiston School Dist. No. 8, FDA 87-1 at p. 49-50 (1988) See also, Ballman v. Warrenton-Hammond School District No. 30, FDA 89-4 at p. 71(1990), Enfield v. Salem-Keizer School Dist. No. 24-J, FDA 91-1 at p. 40 (single incident not “inefficiency”), Packard v. Corvallis School Dist. No. 509J, FDA 97-4 at p. 19 (1998), Holcomb v. Jefferson Co. School Dist. No. 590-J FDA 82-6 and Thomas v. Cascade Union High School Dist. No. 5, FDA 84-7, Order on Remand.
Cases involving this ground for dismissal are often combined with allegations of inadequate performance and are document driven dismissal cases that may involve years of evaluations and programs of assistance for improvement. FDAB hearings in such cases have proven lengthy. For example, the Ballman hearing lasted for 11 days; the Hoover hearing lasted 6 days.
This ground has only been raised in six cases. Two cases have cited but not defined the term. Shipley v. Salem School District No. 24J, FDA 81-24, reversed 64 Or App 777 (1983), dismissal set aside on remand (1984) and Ewart v. Parkrose School District No. 3, FDA 82-1. In a third case the panel addressed this charge but it was subsequently abandoned by the school district on appeal and not discussed by the court. Kari v. Jefferson County School District No. 509J, FDA 88-6 (full cite under neglect of duty discussion, infra). In the first case to fully address this statutory term the underlying facts involved sexual activity in a public setting that became generally known to the school district and parents. Ultimately, the panel, on the third review, upheld dismissal. Ross v. Springfield School Dist. No. 19, FDA 80-1 (1981), aff’d. 56 Or App 197, reversed and remanded 294 Or 357, On remand aff’d 71 Or App 111 and reversed and remanded 300 Or 507 (1986). The Supreme Court twice struck down panel orders for failure in “interpreting and giving content to the legislature’s standards.” Ross, supra, 300 Or at p. 513-14. The final FDAB panel decision construed the statutory term as applying to sexual activity that violated the rights or endangered the welfare of a participant other than a consenting adult, or intimate sexual activity performed in a location without a reasonable expectation of privacy. Ross, supra, FDA Order on Remand No. 2 at pp. 18 – 19 (1987). In the next case, a teacher’s “attempt to get one of her educational assistants to give a false account of facts” was true and substantiated. The panel held this was “selfish conduct and constituted intentional disregard of the rights of the assistant and the school district” and met the statutory ground of immorality. Thyfault v. Pendelton School Dist. No. 16R, FDA 90-4 at p. 14 (1991). The most recent case found that a teacher’s purchase of morphine tablets, and separately a Welbutrin tablet, from a coworker amounted to immorality. The Panel relied upon statutory duties imposed on teachers concerning special instructions to students on the effects of drug use. Webster v. Columbia Educ. Service Dist., FDA 96-1 at p. 15-16 (1998) aff’d w/o opinion 163 Or App 416 (Oct. 6, 1999).
This ground “means disobedience of a direct order or unwillingness to submit to authority” and “requires a defiant intention on the part of the teacher.” North Clackamas School District v. FDAB, 30 Or App 855, 567 P2d 1091 (1977), Sherman v. Mult. Educ. Service Dist., FDA 95-4 at p. 23 citing Covey v. Umatilla School Dist. No. 6R, FDA 83-9, order on reconsideration (1984); Aff’d w/o opinion¸76 Or App 402 (1985); rev den 300 Or 545 (1986), Fisler v. Hermiston School Dist. No. 8R, FDA 84-1 and Thyfault v. Pendelton School Dist. No. 16R, FDA90-4 (1991).
Proof of insubordination requires credible evidence that the school district imposed a lawful order, there was clear communication of the order, and a willful refusal to obey the order. Covey, supra at 26.
Neglect of duty, including duties specified by written rule
This ground has been defined as “failure to engage in conduct designed to result in proper performance of duty” and can involve “repeated failures to perform duties of relatively minor importance * * * or could occur through a single instance of failure to perform a critical duty.” Thomas v. Cascade Union High School District No. 5, FDA 84-7 at p. (1985) reversed on other grounds 80 Or App 736 (1986)(Citing with approval this definition at p. 740). See also Poole v. Lebanon Community School District, FDA 98-2 at p. 21 (1998) and Moore v. Medford School Dist. 549C, FDA 95-6 at p. 27 (1996), Aff'd w/o opinion 150 Or App 598, 946 P2d 370, rev denied 362 Or 464, 952 P2d 64; plus Clawson v. Gresham-Barlow School Dist. No. 10, FDA 94-3 (1995). Similar to the lengthy appellate history of Ross (addressing “immorality”) the statutory term “neglect of duty” was extensively appealed. Kari v. Jefferson County School District No. 509-J, FDA 88-6, 102 Or App 83 (1990), 311 Or 389 (1991), Order on remand (1991), aff’d on second appeal, 120 Or App 99 (1993) rev denied 318 Or 25 (1993). In Kari, the appellant was charged with “failure to take appropriate measures in response to her husband’s use of the family home for marijuana sales”. She was ultimately reinstated.
Physical or Mental Incapacity
No case has ever addressed this ground. Subcategory (e) dismissals do not “disqualify” a teacher/administrator from receiving “disability benefits” under ORS 342.865(3).
Conviction of felony or a crime according to the provisions of ORS 342.143 [crimes involving moral turpitude]
No case has ever addressed this ground.
A dismissal for criminal convictions under subcategory (f) cannot be appealed to FDAB. ORS 342.865(4)
This ground had been defined as  the “failure to perform job duties in conformance with district standards or requirements, where the teacher has been given notice of deficiencies and opportunity to correct * * * and where the failure is a repeated or otherwise substantial failure * * * or  the failure to perform results in some substantial detriment to the district.” Packard v. Corvallis School Dist. No. 509J, FDA 97-4 at p. 20 (1998)
Failure to comply with such reasonable requirements as the board may prescribe to show normal improvement and evidence of professional training and growth
This ground has a built in limitation in that the “requirements” must come from the school board, not simply from the superintendent or other supervisory personnel. Ballman v. Warrenton-Hammond School Dist. No. 30, FDA 89-4 at p. 72 (1991). There are no cases that otherwise give either a definition or example of conduct that would support a dismissal on this ground
Any cause which constitutes grounds for the revocation of such contract teacher’s teaching license
This ground refers to the application of standards enforced by the Teacher Standards and Practices Commission, which grants licenses. Those grounds are found in ORS 342.175(1). The Supreme Court, in Ross I, supra, 294 Or at p. 357 limited FDAB’s authority under this ground by stating that if the TSPC has decided that “a particular set of facts does not constitute grounds for revocation neither the school board nor the FDAB may reach a different interpretation.” There was a pointed dissent to the majority rationale and even to the majority ruling on the issue by three justices. Id at pp. 379-380.