The opinion
GRABER, P. J.
pro tempore, dissenting.
I agree with the majority that FDAB erroneously measured the scope of a teacher’s “duty” to her employer by the personal consequences of adhering to that duty. Nonetheless, that observation does not lead to the majority’s result. Therefore, I dissent.
The majority correctly holds that the nature and extent of the teacher’s duty to her employer are independent of the relative ease or difficulty of compliance in a particular case. “[T]he correct focus is on the propriety of her conduct in the light of her responsibilities to the district and her students.” 102 Or App at 90.1 also agree that Kari was on notice about what those responsibilities were. Accordingly, FDAB misinterpreted the statutory term, “neglect of duty.”
From there, however, the majority leaps too easily to the conclusion that FDAB reached an erroneous result. FDAB said:
“Even if it could be said that failure to report her husband’s activities or failure to separate herself from him amounted to cause for dismissal for neglect of duty, nevertheless dismissal was an unreasonable and clearly excessive sanction. Appellant had been a teacher with respondent for eleven years and her record showed nothing but satisfactory service. Appellant had been teaching the say-no-to-drugs curricula for several years, was personally against drug use and, to *92 respondent’s knowledge, was at all times effective in her promotion and implementation of the say-no-to-drugs program. In dealing with the situation of her husband’s use of their home for selling marijuana, appellant was faced not only with the inevitability of the breakup of their family if she took action but also with the fact that her husband was prone to anger and could become violent. Appellant also had never been informed by the district just how much the appearance of condoning drug sales rather than appellant’s actual conduct would matter to the district. Under these circumstances and without ever first giving a satisfactory teacher, such as appellant, the opportunity after notice of off-duty expectations to show that she could refrain from associating with anyone, including her husband, who sold marijuana, dismissal was not an objectively reasonable response to appellant’s fault. Accordingly, we find that it was both an unreasonable and clearly excessive sanction.”
Although her duty and its violation are not properly defined by the teacher’s personal circumstances, the sanction may be. What is reasonable and proportionate in one case may not be in another, depending, for example, on a teacher’s past work history and other aggravating or mitigating factors that are personal to the teacher. FDAB’s role in reviewing the sanction is limited, see Ross v. Springfield School Dist. No. 19, 294 Or 357, 363-64 , 657 P2d 188 (1982), but it does have a review function. Here, FDAB explained logically and in detail why it concluded that dismissal would be unreasonable or excessive, and the facts on which it relies in its discussion (such as Kari’s past satisfactory record and the dilemma that she faced at home) are supported by substantial evidence in the record. Our scope of review does not permit us simply to substitute our judgment for the agency’s. ORS 183.482. The majority does nothing more than to say that it would not have reached the same result that the agency did, when faced with the same facts. Even if we were “more correct,” that is not our job. I dissent.