1-1302-8118-2

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE MINNESOTA BOARD OF TEACHING

AND THE STATE BOARD OF EDUCATION

In the Matter of the Proposed

Revocation of the Teaching

Licenses of Elwyn S. Brown

FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION

The above captioned matter came on for hearing before

Administrative Law Judge George A. Beck at 10:00 a.m. on

Wednesday, September 15, 1993, in Courtroom No. 3 of the Office

of Administrative Hearings, 100 Washington Square, 17th Floor, in

the City of Minneapolis, Minnesota. The record closed on

November 24, 1993 upon receipt of the final written memorandum.

Nancy Joyer, Special Assistant Attorney General, 1200 NCL

Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2130,

appeared on behalf of the staff of the Minnesota Board of

Teaching and the State Board of Education. Tristam O. Hage,

Attorney at Law, 520 East Parkdale Plaza, 1660 Highway 100 South,

Minneapolis, Minnesota 55416-1534, appeared representing the

Licensee, Elwyn S. Brown.

This Report is a recommendation, not a final decision.

The Minnesota Board of Teaching and the State Board of Education

will make the final decision after a review of the record which

may adopt, reject or modify the Findings of Fact, Conclusions,

and Recommendations contained herein. Pursuant to Minn. Stat.

14.61, the final decision of the Minnesota Board of Teaching and

the State Board of Education shall not be made until this Report

has been made available to the parties to the proceeding for at

least ten days. An opportunity must be afforded to each party

adversely affected by this Report to file exceptions and present

argument to the Minnesota Board of Teaching and the State Board

of Education. Parties should contact Judith A. Wain, Executive

Secretary, Minnesota Board of Teaching, Room 608, Capitol Square

Building, 550 Cedar Street, St. Paul, Minnesota 55101, and Marsha

Grunseth, Executive Director, State Board of Education, Room 714,

Capitol Square Building, 550 Cedar Street, St. Paul, Minnesota

55101, to ascertain the procedure for filing exceptions or

presenting argument.

STATEMENT OF ISSUES

The first issue in this contested case proceeding is whether

or not the Licensee has demonstrated an immoral character or has

engaged in immoral conduct based upon incidents which occurred on

November 17, 1988 and January 28, 1991.

The second issue is whether or not the Licensee violated the

Code of Ethics for Minnesota teachers by failing to make a

reasonable effort to protect a student from conditions harmful to

health or safety and/or failing to undertake reasonable

disciplinary action in exercising authority to provide an

atmosphere conducive to learning on November 17, 1988 and January

29, 1991.

Based upon all the proceedings herein, the Administrative Law

Judge makes the following:

FINDINGS OF FACT

1. Elwyn S. Brown is licensed by the Board of Teaching and

holds three licenses under the jurisdiction of the Minnesota

Board of Teaching: a license in Social Studies K-12, a license

in physical education 7-12, and Communications Disorder Pre-K-12.

(T. 165.) He also holds a coaching license K-12 issued under the

jurisdiction of the State Board of Education. (T. 166.) All four

licenses will expire June 30, 1995. (T. 166.) Mr. Brown has

been married for 33 years and has five children ranging in ages

from 22 to 14. (T. 132.)

2. In 1965, Mr. Brown obtained a bachelor's degree in

education with a major in social studies and a minor in physical

education from Bemidji State University. (T. 138.) He taught

social studies for one year in Allendale, Minnesota, and world

history for two years in Clio, Michigan. (T. 138.) He taught in

St. Louis, Michigan for one year. Mr. Brown was not rehired and

he and his spouse returned to Minnesota. (T. 139.) In 1972, Mr.

Brown obtained a bachelor's degree in speech and pathology. (T.

137.)

3. In September of 1972, after obtaining his speech and

pathology degree, Mr. Brown obtained a part-time position with

Chosen Valley Public Schools working two days a week at Chatfield

Elementary School and three days a week at the adjoining school

district in Lanesboro. In 1987, Lanesboro cut its hours for Mr.

Brown's position and Chatfield was seeking a full-time speech and

language teacher. Mr. Brown applied for that position and he

believed that the District Superintendent, J. Ronald Hennings,

did not want to offer him the position because of Mr. Brown's

religious beliefs. Mr. Brown testified that Mr. Henning's

position was told to him by the Chatfield Elementary school

principal, Mr. Thomas. (T. 157.) In the summer of 1987, Mr.

Brown filed a complaint with the Human Rights Department and the

Equal Employment Opportunity Commission alleging religious

discrimination. (T. 157-158, 173.) Mr. Brown was later employed

full-time by Chatfield Elementary school. (T. 180.)

4. Mr. Brown taught in the Chosen Valley Public Schools for

16 years prior to the 1988/89 school year. During that school

year, Mr. Brown taught speech and language to children ranging

from preschool level to junior high level. The students came to

Mr. Brown's classroom where he provided lessons with a low

student to teacher ratio. On November 17, 1988, Mr. Brown had a

class comprised of two students. One student was an eight year

old boy, B.A., who had learning disabilities. (T. 140.) The two

students arrived approximately five minutes late to class which

frustrated Mr. Brown because it shortened their class time. (Ex.

12 p. 2.)

B.A. was talking and playing with items while Mr. Brown tried to

start working on vocabulary. Mr. Brown lost his temper and

slapped B.A. in the face. (Ex. 12 p. 2, T. 141.) B.A. whimpered

and put his head down on the table for a period of time. (Ex.

12, p. 2.) Mr. Brown did not discuss the incident with anyone

until the following day when the principal, William Thomas, asked

him about the incident. (Exs. 9 and 12 p.2.) B.A.'s parents

called the principal the evening of November 17th to report that

their son had been slapped in the face by Mr. Brown and that when

he came home from school he had marks on the left side of his

face. (Ex. 9.)

5. Mr. Brown admitted slapping B.A. when asked about the

incident by Mr. Thomas, the school principal. (Ex. 9). However,

he denied hitting him hard enough to cause marks on B.A.'s face.

(Ex. 9.) On November 22, 1988, J. Ronald Hennings, the

Superintendent of Chosen Valley Public Schools, wrote a letter to

Mr. Brown stating that:

* * * you are hereby notified that the Chosen Public

Schools will not tolerate improper physical contact,

including

the striking of a child, for disciplinary reasons on the part

of any employee. In the event it is determined that you have

in the past struck or had improper physical conduct with a

student of this school in addition to the November 17th

incident or should you be involved in future incidences

of this nature, you may be considered for immediate discharge.

(Ex. 10.)

Mr. Brown was given a copy of the letter on November 22, 1988,

however he declined to acknowledge receipt of the document. (Ex.

10, T. 47.) Mr. Brown did not deny that he had received the

document.

6. On November 28, 1988, Mr. Brown was given written notice

that his classroom door needed to be open at all times when

working with students. (Ex. 11, T. 141.) Mr. Brown believed

that provision would only be in place for one school year. (T.

142.) In the Fall of 1989, 1990 and 1991, Mr. Brown was not

asked by Mr. Thomas, or Jeffrey Miller, Mr. Thomas' successor as

principal, to keep his classroom door open. (T. 62, 143.) Mr.

Brown kept his classroom door closed from the 1989-1990 school

year forward. (T. 143.)

7. During the 1990/91 school year, Mr. Brown taught speech

and language at Chatfield Elementary to students ranging in

grades from preschool to junior high. He typically taught

students on a one to one basis and they typically had speech and

reading difficulties. Some of the children suffered from

learning disabilities. Each teaching session would last

approximately 20 minutes and would occur on a daily basis.

8. C.M., an eight year old first grade male student, was one

of Mr. Brown's students during the 1990/91 school year. C.M. has

been diagnosed as having learning disabilities. He had a very

low vocabulary, difficulty with articulation, and a language

disorder. (T. 147.) C.M.'s articulation had improved by the

1990/91 school year, but was still deficient. (T. 147.)

C.M. also was alleged to have a hearing disorder. (T. 147.) He

spent 20 minutes daily with Mr. Brown on a one to one basis at

2:00 p.m. each day. C.M. had also been one of Mr. Brown's

students during the 1989/90 school year.

9. On January 28, 1991, at approximately 2:00 p.m., C.M. came

to Mr. Brown's class. The previous student left and C.M.

remained in the doorway. C.M. told Mr. Brown that he was not

going to work that day. Mr. Brown then told C.M. that if he was

not going to work that he was going to throw him out the window.

Mr. Brown picked up C.M. by grabbing him by the shoulder and one

leg and then put C.M. on his head. Mr. Brown walked 10 to 15

feet toward the second story window. C.M. cried and Mr. Brown

put him down. (T. 151, 171.)

10. Mr. Brown and C.M. then proceeded to work on the

assignment for that day. At the end of the 20 minute session,

C.M. returned to his first grade classroom. Soon thereafter,

between 2:30 and 2:45 p.m., his teacher, Iva Anderson, brought

him to the school counselor, Sara Fenwick-Duxbury,

requesting that the counselor speak to C.M. C.M. was bright red

in the face, crying and trying to talk really fast. (T. 18.)

The school counselor recorded C.M.'s statements which were:

He hit me and was going to throw me out the window because

I was

supposed to do something. He put me on his head and he

opened up

the window and he was going to throw me out. I said I was

going

to go and he did that.

(Ex. 1. and Ex. 1A.)

11. The school principal filed a report of suspected child

abuse/neglect with Fillmore County Social Services based upon the

January 28, 1991 incident. (Ex. 2).

12. On Tuesday, January 29, 1991, the principal, Jeffrey

Miller, and the District Superintendent, J. Ronald Hennings, met

with Mr. Brown to put him on notice that the report prepared by

Sara Fenwick-Duxbury would be placed into his personnel file.

(T. 37-38.) A copy of the report was given to Mr. Brown at that

time. (T. 38.) Mr. Brown admitted that he grabbed C.M., took

him to the classroom window, and told him he was going to throw

him out the window. Mr. Brown denied that he hit C.M. (T. 38,

Ex. 3.)

13 On January 30, 1991, Mr. Brown was notified in writing

that effective immediately he was suspended from his teaching

assignment with pay. (Ex. 4.) On March 5, 1991, Mr. Brown sent

written notice that he was resigning from his teaching position

with the Independent School District No. 227(Chosen Valley Public

Schools) effective the end of the 1990/91 school year. (Ex. 5.)

His resignation was accepted by the School Board on March 5,

1991. (Ex. 6 p. 4 and Ex. 7.)

14. On January 30, 1991, C.M. was interviewed by Investigator

Daryl Jensen and Fillmore County Social Worker, Wendy Ebner. The

interview was recorded and later transcribed. (Ex. 21.) On

page three of the transcribed report, C.M. states that Mr. Brown

hit him in the shoulder area with a fist. (Ex. 21 pp. 2-3.)

C.M. stated that Mr. Brown picked him up and was laughing while

he carried C.M. (Ex. 21 p. 4.)

15. On April 17, 1991, Mr. Brown saw Dr. Samuel Fink, Ph.D.,

a licensed consulting psychologist, for a diagnostic assessment.

(Ex. 16.) Mr. Brown had been charged criminally in connection

with the January 28, 1991 incident. The assessment was conducted

as part of a negotiated agreement in the criminal proceedings.

Mr. Brown saw Dr. Fink for four sessions on a monthly basis from

April 7, 1991 through September 1991. (Exs. 17-19.) Dr. Fink

concluded that Mr. Brown demonstrated minimal insight and

believed his lost job was primarily based on his religious

practices. (Ex. 19.) Mr. Brown did admit that his behavior on

January 28, 1991, was inappropriate by today's standards, but

also indicated he did not agree with such standards. (Ex. 19.)

At the hearing, Mr. Brown denied that he did not agree with

today's standards. (T. 169.)

16. On May 26, 1992, a hearing in the criminal proceeding

took place in the chambers of the Honorable Duane M. Peterson,

Judge of District Court. Dr. Samuel Fink testified via telephone

conference call. (Ex. 20.) Dr. Fink testified that Mr. Brown

had not been motivated to go through extensive counselling

sessions. (Ex. 20 p. 3 and 8.) Dr. Fink further testified that

Mr. Brown had limited insight into his problems. (Ex. p.4.)

17. During the 1991/92 school year, Mr. Brown taught at a

school in Wisconsin. (T. 164.) Part of the agreement in the

criminal proceeding was that Mr. Brown would not teach in any

position requiring a Minnesota teaching license as a condition of

employment until July 1, 1995. Ex. 14.) He is presently

employed by Bailey's Nursery.

18. The exhibits received during the hearing contain

references to

B.A.'s and C.M.' s full name.

Based upon the foregoing Findings of Fact, the Administrative

law judge makes the following:

CONCLUSIONS

1. The Minnesota Board of Teaching and the State Board of

Education and the Administrative law Judge have jurisdiction in

this matter under Minn. Stat. 125.09, subd. 1 and 14.50.

2. The Boards have complied with all relevant, substantive,

and procedural requirements of statute and rule.

3. The Licensee received proper and timely notice of the

hearing in this matter.

4. Minn. Stat. 125.09, subd. 1 provides in part as follows:

The board of teaching or the state board of education,

whichever has jurisdiction over a teacher's licensure,

may, on the written complaint of the board employing

a teacher, or of a teacher's organization, or of any other

interested person, which complaint shall specify the

nature

and character of the charges, suspend or revoke such

teacher's

license to teach for any of the following causes;

(1) Immoral character or conduct;

* * *

5. Minnesota Rules 8700.7500, subp. 2, sets forth the

standards of professional conduct for all persons licensed

according to the rules established by the Board of Teaching:

* * *

B. A teacher shall make reasonable effort to protect

the student from conditions harmful to health and safety.*

* *

D. A teacher shall take reasonable disciplinary

action in

exercising the authority to provide an atmosphere

conducive

to learning. * * *

6. Minnesota Rules 8700.7500, subp. 3 provides the board with

the authority to enforce the code of ethics for Minnesota

teachers.

7. That the Boards' staff have the burden of proof to

establish the facts at issue by a preponderance of the evidence

under Minn. Rule 1400.7300, subp. 5.

8. That the Boards' staff have proved by a preponderance of

the evidence that the Licensee slapped an eight year old student,

B.A., in 1988 as set forth in Finding Nos. 4 and 5.

9. That the Boards' staff have proved by a preponderance of

the evidence that the Licensee threatened to throw C.M., an eight

year old student with learning disabilities, out the classroom

window, and then grabbed C.M. by the shoulder and arm, picked him

up placing him on the Licensee's head, and carried the student to

the second story classroom window as set forth in Findings Nos. 8

- 14.

10. That the Boards' staff have not proved by a preponderance

of the evidence that the Licensee has engaged in immoral conduct

contrary to Minn. Stat. 125.09, subd. 1.

11. That the Boards' staff have proved by a preponderance of

the evidence that the Licensee has violated the code of ethics

for Minnesota teachers by failing to protect his students from

conditions harmful to health and safety.

12. That the Boards' staff have proved by a preponderance of

the evidence that the licensee has violated the code of ethics

for Minnesota teachers by failing to take reasonable disciplinary

action in exercising the authority to provide an atmosphere

conducive to learning.

13. That the entire file shall be sealed to protect the

identities of B.A. and C.M.

14. That the above conclusions are arrived at for the reasons

set out in the Memorandum which follows and is hereby

incorporated in these conclusions.

Based upon the foregoing Conclusions, the Administrative Law

Judge makes the following:

RECOMMENDATION

IT IS HEREBY RECOMMENDED: that the Board of Teaching and the

State Board of Education take disciplinary action against the

teaching licenses of Elwyn S. Brown.

Dated

/s/ George A. Beck

GEORGE A. BECK

Administrative law Judge

NOTICE

Pursuant to Minn. Stat. 14.62, subd.. 1, the agency is

required to serve its final decision upon each party and the

Administrative Law Judge by first class mail.

Reported: Taped. Transcript prepared by Jeffrey J. Watczak

MEMORANDUM

The Executive Secretary of the Board of Teaching and the State

Board of Education initiated this contested case proceeding

alleging that the Licensee, Elwyn S. Brown, has engaged in

conduct which violates the Code of Ethics for Minnesota teachers.

In addition, the Board of Teaching and the State Board of

Education allege that the Licensee has engaged in immoral conduct

which justifies disciplinary action against his teaching license.

As set forth in the foregoing Findings of Fact, on November

17, 1988,

the Licensee slapped an eight year old student who had learning

disabilities. The Licensee admitted that he lost his temper and

slapped his student. On November 28, 1988, the Licensee was

given written notice that any future incidents involving

inappropriate physical contact with his students may lead to

dismissal. On January 28, 1991, the Licensee responded to a

student's refusal to work by picking up the student by the

shoulder and leg and carrying him near the classroom window

stating that if he did not work he was going to throw him out the

window. When the student began to cry, the Licensee put the

student down.

At the hearing, the Licensee did not dispute hitting the

student in November of 1988. He testified that the student was

being disruptive in the classroom and that he lost his temper.

He maintained that he did not hit him hard. This testimony is

directly contradicted by the statement from the parents that

their son came home with a red mark on his face. Regarding the

January 1991 incident, the Licensee testified that he was acting

in jest in an attempt to refocus the student's attention to the

class work. The Licensee also testified that the student cried.

In reviewing the statements made by the student directly after

the incident, and the testimony of the counselor who observed

that C.M. was visibly upset shortly after the incident, the

Licensee's testimony discounting the incident as being in jest is

not credible.

It is the Board's position that the 1988 incident violated the

Code of Ethics for Minnesota teachers. They assert that no

evidence was presented that the Licensee's act of slapping was

necessary to protect the student from harming himself or others.

The Boards also assert that the act constituted unreasonable

disciplinary conduct. The Licensee was warned by the District

not to engage in future improper physical action against a

student. Based upon the Licensee's failure to heed the warning

of the District by engaging in inappropriate physical contact

with a student a second time, the Board initiated this action to

revoke Brown's license. The Board's concern is heightened by the

fact that Brown's licenses enable him to work in unsupervised

sessions with young students with special needs.

The Boards further assert that Brown's conduct constituted

immoral conduct or character in violation of Minn. Stat.

125.09, subd. 1(1). The Boards submit that placing vulnerable

children at physical risk constitutes immoral conduct.

It is the Licensee's position that the 1988 incident was

unfortunate, but did not reach the level of a breach of the code

of ethics. The Licensee rationalizes the act as an instinctive

reaction to a student exhibiting disruptive behavior.

Additionally, the Licensee asserts that the Boards have no

authority to consider the 1988 incident in this proceeding

because the time period in which his fitness as a teacher was

being scrutinized had expired. The Licensee bases his position

on the fact that he was directed to keep his classroom door open

when he was working with students. After the end of one school

year, he closed his door and no discussions were held requesting

that the door remain open. Regarding the 1991 incident, it is

the Licensee's position that he acted in jest. He further

alleges that the court should take into consideration that no

evidence was presented that the student suffered from any long

term behavioral changes after the incident. Brown asserts that

his alleged inappropriate conduct does not violate morality

standards and hence, is not immoral conduct under Minn. Stat.

125.09, subd. 1(1).

The Minnesota Code of Ethics for teachers provides that:

B. A teacher shall make reasonable efforts to protect

the student from conditions harmful to health and safety.

D. A teacher shall take reasonable disciplinary

action in

exercising the authority to provide an atmosphere

conducive to learning.

Minnesota Rules 8700.7500 subp. 2.

Brown's actions in 1988 and 1991 violated both of the codes

set forth above. By slapping a student in anger in November of

1988, Brown failed to protect his student from conditions harmful

to health and safety.

No evidence was presented that the act was necessary to protect

the student from harming himself or others. On the contrary, his

act in slapping a student created a harmful condition. Brown's

conduct was not reasonable disciplinary action necessary to

provide an atmosphere conducive to learning.

Brown alleges that the student was being disruptive in the

classroom. However, the student was only eight years old and

suffered from learning disabilities. Further, only five minutes

had elapsed from the beginning of the class to the slapping

incident. Additionally, only two students were in the class.

Slapping out of anger constitutes unreasonable disciplinary

action, especially considering the vulnerability of the child due

to his age and learning disabilities.

The Licensee's argument that the 1988 incident should not be

considered is without merit. Even if the District's requirement

that Brown keep his door open while working with students expired

after the 1988/89 school year, the November 22, 1988 letter

placing Brown on notice that future incidents involving impoper

physical conduct with students would not be tolerated had no

expiration date. Jeffrey Miller testified that such a warning

would not have an expiration date. (T. p. 68.)

In evaluating the 1991 incident, the Judge did not give great

weight to the hearsay testimony and exhibits which allege that

Brown struck C.M. Upon review of C.M.'s statement, Exhibit 21,

it is possible that Brown hit C.M. in the shoulder prior to or

while he was picking C.M. up by the shoulder. However, Brown

testified that he did not hit C.M. and that C.M. sometimes stated

that he was hit when he was actually doing the hitting. There is

not a preponderance of evidence establishing that Brown hit C.M.

on January 28, 1991.

However, Brown's act in 1991 was not necessary to protect his

student from conditions harmful to health and safety. On the

contrary, carrying a student on top of his head toward a second

story window created a condition harmful to the student's health

and safety. Threatening to throw a student out a second story

window unless he did his work was not reasonable disciplinary

action. Brown's act was exacerbated by the student's young age

and learning disability problems. Both students were very

vulnerable.

The third issue presented was whether or not Brown's actions

in 1988 and 1991 constituted immoral conduct pursuant to Minn.

Stat. 125.09 subd. 1. (1). The statute does not define the

phrase "immoral conduct" and there is no Minnesota case law which

specifically construes the phrase. The Minnesota appellate court

has upheld dismissals of licensed teachers for immoral conduct

relating to sexual contact or sexual harassment of students. See

Fisher v. I.S.D. No. 622, 357 N.W. 2d 152 (Minn. Ct. App. 1984).

However, there are no Minnesota appellate cases interpreting the

statute when the act is not sexually motivated.

The Boards cite a Nebraska decision to support their position

that Brown's actions constitute immoral conduct. Clarke v. Board

of Education of the School District of Omaha, 215 Neb. 250, 338

N.W. 2d 272 (1983). The Nebraska Supreme Court had to determine

whether or not a teacher's use of racial slurs to a a racially

mixed class of students constituted "immorality" to support

immediate termination of a teacher.

The Nebraska statute did not define the phrase "immorality". The

Court carefully limited its holding to the facts in that

particular case. The Court considered the fact that the school

was under a court order to desegregate and that the District had

formally adopted a policy statement stating that racially

demeaning language would not be tolerated and could result in

termination of duty. Clarke, 338 N.W.2d at 275. The Court

focused on the racial tensions in the school and noted that by

using derogatory language the teacher was teaching white students

that it was acceptable to use racial slurs toward Afro-Americans.

Id. at 275.

The court quoted a definition adopted by other courts:

The term "immoral" has been defined generally as that

which is

hostile to the welfare or the general public and contrary to

good morals. Immorality has not been confined to sexual

matters,

but includes conduct inconsistent with rectitude, or

indicative

of corruption, indecency, depravity, dissoluteness; or as

willful,

flagrant, or shameless conduct showing moral indifference to

the

opinions of respectable members of the community, and as an

inconsiderate attitude toward good order and the public

welfare.

Clarke, 338 N.W.2d. at 276, citing Palo Verde etc. School

District v.

Hensey, 9 Cal. App. 3d 967, 972, 88 Cal. Rptr. 570, 573

(1970).

The Nebraska Supreme Court found that a teacher's use of

racial slurs in a classroom setting offended the morals of the

community and directly affected his fitness to teach. Clarke,

338 N.W. 2d at 277-278. While the definition in Clarke was

expansive, the Court was careful to note that its decision was

based on the specific facts presented and that future cases would

have to be decided on a case by case basis. The Court's opinion

focused on the need to eradicate racism from society, and that

such slurs would not be tolerated in a classroom setting,

especially given the racial tensions in the District where the

slurs occurred.

In the California decision cited in Clarke, the appellate

court found that a nonverbal gesture by the teacher was obscene

and rose to the level of immorality. Palo Verde, 88 Ca. Rptr.

at. 575 The appellate court also found that disconnecting a fire

alarm in a classroom which potentially endangered the safety of

students did not rise to the level of immorality. Id. at 574.

The Boards also cite a Pennsylvania decision in support of

their position that Brown's acts constituted immoral conduct

under Minn. Stat. 125.09 subd. 1 (1). Horosko v. Mt. Pleasant

Township, School District, 355 Pa. 369, 372, 6 A.2d 866 (1939).

In that decision, the Pennsylvania Supreme Court defined the term

immorality in connection with a teacher dismissal proceeding as

follows :

We hold it to be self evident that, under the intent and

meaning of the act, immorality is not essentially confined to

a deviation from sex morality; it may be such a course of

conduct as offends the morals of the community and is a bad

example to the youth whose ideals a teacher is supposed to

foster and to elevate. Id. at 868.

In that case, the teacher was a waitress at her husband's

lunch room and beer garden. In front of students that she

tutored, the teacher drank beer, played dice and showed a

customer how to play a pin-ball machine. In 1939, such conduct

rose to the level of immorality. Id. at 869.

Brown's course of conduct was reprehensible and violated the

Code of Ethics for teachers, however, his actions did not rise to

the level of offending the morals of the community based upon the

case law cited. Although the two cases discussed above have

broad definitions of immorality, they specifically involve sexual

conduct and racially demeaning language. No authority has been

advanced to support the conclusion that striking a student is

included within the definition of immorality or immoral conduct.

Although the Boards mention that the Licensee's conduct is as

serious as that cited in the case law, it is of a different

nature, and is probably not violative of the ordinary dictionary

meaning of "immoral". Accordingly, the Boards have not

established beyond a preponderance of the evidence that Brown

committed immoral conduct under Minn. Stat. 125.09 subd. 1(1).

At the hearing, the Boards called Gary Schoener, a licensed

psychologist, to testify regarding Brown's psychological

evaluation and the adequecy of the treatment he received for

anger management The parties stipulated to his qualifications as

an expert for purposes of his testimony. (T. p. 80.) Mr.

Schoener examined the psychological records and evaluation

conducted by Dr. Samuel Fink regarding the licensee.

Mr. Schoener testified that Dr. Fink concluded that Brown

had a problem and recommended a treatment plan to deal with

difficulties in controlling his angry impulses. He testified

that Dr. Fink diagnosed Brown as having a personality disorder.

Mr. Schoener testified that a personality disorder is a serious

emotional problem. Mr. Schoener testified that Dr. Fink's notes

also indicated that Brown has paranoid narcissistic and possibly

schizotypical personality features. Mr. Schoener testified that

Brown's disorder is difficult to treat.

Mr. Schoener testified that in reviewing the file, he noted

that Dr. Fink would have preferred to have engaged in weekly

counseling. However, Brown was resistant to counseling and they

agreed to four monthly sessions. Mr. Schoener testified that the

file reflects that the results of the treatment program was a

recognition by Brown that his behavior was not acceptable by

current standards. Mr. Schoener testified that the notes reflect

that Brown showed limited insight into his anger control

problems. Mr. Schoener testified that Brown's lack of insight

makes it extremely difficult if not impossible to treat Brown's

problems. Mr. Schoener testified that, in his opinion, Brown's

sessions with Dr. Fink would not have successfully modified or

solved Brown's problem with anger.

Based upon Mr. Schoener's review of the psychological

records, the school records, and the telephone transcript in the

criminal proceeding regarding completion of treatment, and based

upon his professional experience, Mr. Schoener testified that he

believed there is a risk that Brown will repeat some of these

behaviors.

Although Administrative Law Judges do not recommend specific

disciplinary action in occupational licensing cases, Mr.

Schoener's credible expert testimony should be helpful to the

Boards in determining the appropriate disciplinary action in this

proceeding.

G.A.B.