Judge: Dismiss case against principal
June 22, 2012 · Jake Krob

An administrative law judge recommends dismissal of the case involving the education licenses of Mount Vernon's former elementary principal. If the Board of Educational Examiners (BOEE) agrees this week, Terry Eisenbarth will keep his licenses.

Judge Robert H. Wheeler last week concluded that the state had "failed to carry the burden of proof" in three charges against Eisenbarth, who served as Mount Vernon's Washington Elementary principal during the 2010-11 school year and resigned last June. The judge recommends no penalty regarding Eisenbarth's two education licenses - an administrator license that expires at the end of 2016 and a teaching license that expires in 2013.

The BOEE, which sent the case to the judge, has the final say in the matter. The 12-member board, all educators, administrators or retired educators, meets at the Grimes Building in Des Moines starting at 9:30 a.m. this Friday. The board will meet in closed session, then take action on the matter in open session.

Beth Myers, an investigator with the BOEE, pointed out that the judge's ruling is only proposed. The board reviews the ruling, and can change it in any way. She said the board will act on the case Friday, as it has 30 days from the time of the ruling to take action; the board's next planned meeting in August would not meet that time frame.

In a statement to the Sun, Eisenbarth said: "I have received a proposed decision from the administrative law judge that is favorable to me, but it hasn't been accepted by the Board of Educational Examiners (BOEE). Until that happens, it would be premature to comment on the decision."

The case alleged that Eisenbarth violated three BOEE rules, due to a birthday practice that was described as a "whap" using a padded hockey stick. The Mount Vernon School Board conducted its own investigation, using a law firm, and determined that Eisenbarth hadn't "committed any acts of unprofessional behavior requiring filing complaints with the Board of Education Examiners" and that "no illegal acts had been committed."

The case, therefore, was brought to the BOEE through two complaints - by Mark Weldon, a parent of an elementary student who is now a member of the Mount Vernon School Board, and Ric Turnquist and Steve Wernimont, parents of three children who attended school at Washington Elementary.

The BOEE in December 2011 issued a "notice of hearing and statement of charges" against Eisenbarth for three alleged violations - physical abuse, failing to make a reasonable effort to protect the health and safety of students, and exposing students to unnecessary embarrassment of disparagement.

A hearing was held in May in front of Judge Wheeler. The following testified on behalf of the state: Washington Elementary secretary Denise Havill and parents Turnquist, Wernimont and Weldon. Eisenbarth testified, as did the following on his behalf: parents David Kutcher, Rodney Rocarek, Kristin Steiner, Barbara Connolly and Erin Moeller; students Eli Steiner and Ryne Moeller; teacher Lisa Greif; school associate Angela Randall; middle school principal Noreen Colbeck-Bush; high school principal Steve Brand; superintendent Pam Ewell; paraeducator Kathy Orr; and Sgt. Harvey Hall of the Linn County Sheriff's office.

Wheeler had the following rulings on the allegations:

• On the allegations of committing an act of physical abuse of a student - "...the preponderance of the evidence showed that (Eisenbarth) did not commit any acts of physical abuse of a student." The ruling continues: "The overwhelming majority of witnesses who witnessed the birthday 'whap' described a touching too gentle to cause injury" and "the preponderance of the evidence showed that the force applied could not cause pain."

The judge further writes that "only one witness," Wernimont, "testified that (Eisenbarth) intended to cause harm" and that "this allegation is completely unsupported by other evidence in the case." The judge adds that "the evidence concurs with Sergeant Hall, who stated that no abuse took place."

• On the allegations of failing to make a reasonable effort to protect the health and safety of the student or creating conditions harmful to student learning; and conducting professional business in such a way that the practitioner repeatedly exposes students to unnecessary embarrassment or disparagement - The judge wrote that the words health, safety, embarrassment and disparagement are "not defined in the (BOEE's) rules," so they "should be given (their) common and ordinary meaning." The judge cited Merriam-Webster's Collegiate Dictionary for the definitions.

He continued: "Review of the evidence and application of these terms to the four alleged victim children in this matter reveals that only" one of them "is alleged to have been negatively impacted in a manner that would implicate the meaning of the rules." The judge wrote that "no evidence indicated damage to the health and safety of any child." He added that Sgt. Hall, "with 32 years of experience and hundreds of child abuse investigations found that" the child "had not been traumatized." He continued: "Significantly, the State's assertion that the birthday 'whap' caused (the child's) post-traumatic stress disorder was not supported by the mental health professional that made the diagnosis."

In his concluding paragraphs of the 12-page opinion, Wheeler writes: "It is important to note that the evidence received from education professionals overwhelmingly found no ethical violations." He cites that Ewell, Brand, Orr, Greif, Randall and Colbeck-Bush "found no evidence of spanking. These witnesses represent professional educators and administrators with extensive experience, and all were able to distinguish between a touching of a student for disciplinary purposes and the birthday celebrations." The judge added that all are mandatory child abuse reporters and "never felt the need to report any of (Eisenbarth's) actions."

The judge added that "the only dissenting educator" was Havill, "who admitted a 'very bad' relationship with (Eisenbarth)" and that she "acknowledged that she is a mandatory child abuse reporter, and that she never considered reporting the birthday celebration as abuse."

The judge concluded that "the majority of parents also supported" Eisenbarth and that Ewell, as superintendent, "specifically opined that no violations of the applicable rules occurred in this case."

"The preponderance of the evidence is in agreement with Dr. Ewell's opinion," the judge concludes.