Submitted: October 9, 2017
Motion to Dismiss - Denied.
from the Decision of the Professional Standards Board -
Anthony Morabito, pro se.
Patricia A. Davis, Esquire of the Department of Justice,
Dover, Delaware; attorney for the Professional Standards
OPINION AND ORDER
William L. Witham. Jr. Resident Judge.
the Court is the Appellant, Anthony Morabito's, appeal
from the Delaware Professional Standards Board's
(hereinafter, the "Standards Board") decision to
suspend his teaching license and certificates for two years
based upon a hearing officer's determination that Mr.
Morabito was dismissed from the Milford School District for
immorality and falsification of records. After an extensive
review of the record, it is clear to the Court that the
hearing officer had substantial evidence to support his
recommendation to the Standards Board. And, there is no
indication that either the hearing officer or the Standards
Board committed legal error. Accordingly, the Standard
Board's decision to suspend Mr. Morabito's teaching
license and certificates for two years is affirmed.
order also resolves Mr. Morabito's "Motion to
Dismiss, " filed on September 18, 2017. As the motion is
clearly without merit, it is hereby denied.
AND PROCEDURAL BACKGROUND
September 16, 2009, Mr. Morabito was terminated from the
Smyrna School District for Neglect of Duty.
15, 2010, the Superior Court of Delaware affirmed a hearing
officer's recommendation to terminate Mr. Morabito's
employment as a teacher for the Smyrna School
District. The Superior Court found that the hearing
officer had substantial evidence to support his finding that
Mr. Morabito was terminated for Neglect of
16, 2011, the Supreme Court of Delaware issued an order that
affirmed the Superior Court's July 15, 2010
decision. The Supreme Court found that the Smyrna
Board of Education (hereinafter, the "Smyrna
Board") terminated Mr. Morabito's employment as a
teacher for Neglect of Duty on September 16, 2009, and that
substantial evidence in the record supported the Smyrna
Board's conclusion that Mr. Morabito failed to do things
that were required to be done in connection with his
29, 2012, the Superior Court of Delaware issued a written
decision that affirmed an Industrial Accident Board's
(hereinafter, the "Accident Board") decision
concerning Mr. Morabito. The Superior Court rejected Mr.
Morabito's contention that he was terminated for his
industrial accident that occurred while he was employed by
the Smyrna School District. Instead, the Court found that
there was substantial evidence to support the Accident
Board's conclusion that Mr. Morabito was terminated or
not renewed because of issues relating to his work as a
summer of 2015, Mr. Morabito applied for a teaching position
with the Milford School District. In his application, Mr.
Morabito indicated the following:
Question 1: Have you ever been dismissed from an employment
Answer: Yes, after a workplace injury in 2009, 1 was unable
to perform my duties.
Question 18: Have you ever had a contract non-renewed, non
extended, or been dismissed from employment?
on these misrepresentations, Mr. Morabito was hired by the
Milford School District for the September 2015-June 2016
October 7, 2015, upon discovering that Mr. Morabito had
actually been terminated from the Smyrna School District for
Neglect of Duty, the Milford Board of Education (hereinafter,
the "Milford Board") notified Mr. Morabito that the
board was recommending his termination. More specifically,
the Milford Board sought to terminate Mr. Morabito for
falsifying responsive information concerning his termination
from the Smyrna School District in his employment application
that he submitted to the Milford School District. Mr.
Morabito's termination became effective on November 9,
2015, after Mr. Morabito failed to submit a timely request
for a hearing before the Milford Board.
November 6, 2015, Dr. Kohel, Milford School District's
Superintendent, notified the Secretary of the Delaware
Department of Education that Mr. Morabito had been terminated
from the Milford School District, effective November 9, 2015,
for immorality. Dr. Kohel informed the Secretary that the
specific reason that Mr. Morabito was terminated was for
"falsification of employment records by omitting and/or
falsifying his employment application responsive information
concerning a prior employment termination."
November 16, 2015, the Secretary of the Department of
Education notified Mr. Morabito that the Secretary received
notification from the Milford School District that Mr.
Morabito had been terminated from his teaching position
effective November 9, 2015 for immorality - falsification of
employment records. In addition, the Secretary notified Mr.
Morabito that the Secretary had initiated an investigation
and would review the results of the investigation to
determine whether to initiate disciplinary action against Mr.
Morabito's teaching license.
15, 2016, the Secretary sent Mr. Morabito a written
"Notice of License Revocation." The Secretary
stated that he intended to revoke Mr. Morabito's teaching
license based upon an alleged violation of 14 Del.
C. §§ 1218(a)(2) and (a)(6). Specifically, the
Secretary alleged that Mr. Morabito falsified official school
documents and was terminated from his position in the Milford
School District for immorality and misconduct in his office.
The Secretary also informed Mr. Morabito that, if he wished
to challenge the Secretary's decision, he was entitled to
a hearing with the Executive Director of the Standards Board
within thirty days of the written notice. Mr. Morabito
requested a hearing.
26, 2016, the Standards Board's Executive Director, Chris
Kenton, sent a letter to Mr. Morabito requesting his
availability for a hearing before the Standards Board. Mr.
Kenton enclosed a copy of the Delaware Professional
Standards Board Hearing Procedures and Rules. Mr.
Morabito did not respond to the letter or provide his
October 18, 2016, Mr. Kenton sent notice to Mr. Morabito that
an evidentiary hearing would be scheduled for December 20,
2016 and December 21, 2016 at 8:30 a.m., and that he assigned
Lewis L. Atkinson, III, Ed.D. (hereinafter, the "Hearing
Officer") to act as the Standards Board's hearing
officer. Mr. Kenton further stated that a copy of the
Delaware Professional Standards Board Hearing Procedures
and Rules had been provided to the parties with his July
26, 2016 letter; he also provided the website information to
access the rules online. Additionally, Mr. Kenton: stated
that subpoena requests and witness lists are time sensitive;
provided the language of PSB Hearing Rule § 126.96.36.199
(subpoena requests) and PSB Hearing Rule § 188.8.131.52
(witness lists); specified the deadline for the parties to
request subpoenas (November 29, 2016) and submit witness
lists (December 13, 2016); and noted that PSB Hearing Rule
§ 3.0 addresses evidentiary hearings in more detail.
December 19, 2016, Mr. Morabito sent a continuance request to
the Standards Board. Mr. Morabito stated that he:
Recently discovered the attorney [he] had contacted has a
conflict and [his (Mr. Morabito's)j file is at a new
attorney's office awaiting review for consideration. Of
the four new attorneys [Mr. Morabito has] contacted all have
said to request a continuance as they would not be able to be
present at a hearing so close to the holidays.
The Hearing Officer issued a pre-hearing order on that same
day granting Mr. Morabito's continuance request based
upon the fact that Mr. Morabito had not previously requested
a continuance and his representations surrounding his efforts
to retain an attorney to represent him at the hearing.
January 10, 2017, Mr. Kenton provided notice to the parties
that the hearing would be held on February 22, 2017 at 8:30
a.m. In addition, Mr. Kenton provided the parties with new
deadlines for requesting subpoenas and submitting witness
lists. Finally, Mr. Kenton stipulated that all other
procedures and information outlined in the October 16, 2016
scheduling letter remained in effect.
January 30, 2017, Mr. Morabito sent the Standards Board his
"Motion to Dismiss with Prejudice presented to the
Delaware Professional Standards Board" and a letter
addressed to the members of the board. Among other things,
Mr. Morabito requested an additional continuance of the
hearing because he had been unable to obtain counsel and
wanted more time to depose witnesses. He also wanted to learn
how to properly subpoena evidence and witnesses.
February 14, 2017, the Hearing Officer issued a pre-hearing
order denying Mr. Morabito's Motion to Dismiss.
Additionally, the Hearing Officer denied Mr. Morabito's
request for a continuance because: (1) it was his second such
request in the matter; (2) Mr. Morabito had previously been
granted a continuance based on his representations
surrounding his efforts to obtain an attorney to represent
him; (3) the
22, 2017 hearing was scheduled more than two months after his
first continuance request was granted; (4) Mr. Morabito was
provided a copy of the Standard Board's hearing rules and
procedures, which included the procedure for requesting
subpoenas, as early as June 2016; and (5) the procedure for
requesting subpoenas was included in the October 18, 2016
notice to the parties.
February 22, 2017, the Hearing Officer conducted a hearing to
determine if Mr. Morabito was dismissed from the Milford
School District for immorality and falsification of records.
Mr. Morabito appeared pro se. Deputy Attorney
General Valerie Dunkle represented the Delaware Department of
Education (hereinafter, the "Education
Department"). And, Deputy Attorney General Laura
Makransky represented the Hearing Officer and the Standards
the course of the hearing, Ms. Dunkle introduced numerous
documents relevant to the Education Department's case.
She also elicited testimony from four witnesses: Paul
Walmsley, Ed.D., Director of Personnel for the Milford School
District; Patrick Williams, Assistant Superintendent of the
Smyrna School District; Clarence E. "Buddy" Lloyd,
the former Assistant Superintendent of the Smyrna School
District; and Charles J. Simpson, an investigator for the
Education Department. Mr. Morabito testified on his own
behalf, and presented testimony from three witnesses: Mr.
Simpson, Mr. Williams, and Mr. Lloyd.
March 15, 2017, the Hearing Officer issued a fifty-three page
written decision and proposed order which thoroughly set
forth the factual and procedural background of the case to
include summaries of: (1) correspondence between the parties,
as well as correspondence between the parties and the
Standards Board; (2) pre-hearing orders issued by the Hearing
Officer; (3) evidence introduced by the parties, objections
to that evidence, and the Hearing Officer's determination
of whether or not he would consider the evidence in his
ultimate decision on the matter; (4) testimony of the
witnesses presented; and (5) the Hearing Officer's
decision to deny Mr. Morabito's request for a
continuance, in order to subpoena additional witnesses and
evidence. As the Hearing Officer's summaries were
extremely thorough, the Court declines to re-state, in
detail, all of the Hearing Officer's findings.
the Hearing Officer determined that the Education Department
satisfied its burden of proving that Mr. Morabito was
terminated or dismissed from his position with the Milford
School District for immorality, as he falsified his responses
on an employment application. Specifically, Mr.
Morabito's response to the employment application, as to
whether or not he had ever been dismissed from an employment
position, was misleading because he failed to disclose that
he was previously dismissed from the Smyrna School District
for Neglect of Duty. Mr. Morabito also failed to disclose
that he was dismissed from Smyrna School District when asked
on the employment application whether he ever had a
"contract non- renewed, non-extended or been dismissed
from employment." The Hearing Officer found that there
was sufficient evidence presented to show that Mr. Morabito
was terminated from the Smyrna School District in 2009 and
his termination was for Neglect of Duty. Therefore, Mr.
Morabito's responses on his employment application to the
Milford School District were false. Based upon the foregoing,
the Hearing Officer recommended that the Secretary's
proposed action to revoke Mr. Morabito's teaching license
and certificates should be affirmed.
April 6, 2017, Mr. Morabito requested a "verbal
rebuttal, " before the Standards Board, of the Hearing
Officer's recommendation to revoke his teaching license
and certificates. Mr. Morabito claimed that the Hearing
Officer permitted a witness to lie during the previous
hearing. He also claimed that it was improper for the Hearing
Officer to deny his request to introduce a video into
evidence. Next, Mr. Morabito claimed that he was lied to
throughout the entire process. More specifically, Mr.
Morabito objected to: (1) the denial of his request to have a
hearing before the entire Standards Board; (2) the denial of
his request to subpoena witnesses and introduce additional
documents; (3) his lack of involvement with the investigation
by the Education Department; (4) the denial of his request
for additional time to present his case; and (5) the time
limitation of his closing argument.
4, 2017, the Standards Board provided Mr. Morabito an
opportunity to present oral argument regarding his objections
raised in his April 6, 2017 letter. Among other things, Mr.
Morabito emphasized that he believed that his original
termination from the Smyrna School District was unfair as it
was supported by untruthful testimony. Mr. Morabito also
again complained that the hearing before the Standards Board
was cut short by the Hearing Officer. And, he objected to
numerous evidentiary decisions of the Hearing Officer. Next,
Mr. Morabito argued that he should have been granted a
continuance to gather additional evidence and subpoena
additional witnesses. Finally, Mr. Morabito believed the
recommendation of the Hearing Officer to revoke his teaching
license was "grossly out of proportion to the
offense" because he did not conceal the fact that he was
terminated and there is a difference of opinion as to the
reasons why he was terminated from the Smyrna School
25, 2017, the Standards Board issued a final order. The
Standards Board decided to adopt, as its own, the Hearing
Officer's recommended conclusion that Mr. Morabito
engaged in misconduct when he falsely represented the reason
for his termination from the Smyrna School District on a
employment application that he submitted to the Milford
School District. The Standards Board also adopted the Hearing
Officer's recommended conclusion that due process
requirements were satisfied. However, the Standards Board
rejected the Hearing Officer's recommendation to revoke
Mr. Morabito's teaching license and certificates.
Instead, the Standards Board found that a two-year suspension
of Mr. Morabito's license and standards certificates was
more appropriate under the circumstances.
23, 2017, Mr. Morabito appealed the Standards Board's
decision to this Court.
26, 2017, the Court issued a Brief Schedule Notice. The Court
identified the following dates for the parties briefings in
Opening Brief: August 21, 2017
Answering Brief: September 11, 2017
Reply Brief: September 25, 2017
August 21, 2017, Mr. Morabito filed his Opening Brief. His
arguments are set forth in the next section.
September 11, 2017, the Standards Board filed its'
Answering Brief. The Standards Board's arguments are set
forth in the next section.
September 18, 2017, Mr. Morabito filed a "Motion to
Dismiss." In the motion, he urges the Court to disregard
the Standards Board's Answering Brief because, according
to Mr. Morabito, the Answering Brief is untimely. Mr.
Morabito claims that the Standards Board failed to mail
its' Answering Brief until September 13, 2017. It was not
sent certified and he claims that he did not receive it until
September 15, 2017. Therefore, Mr. Morabito requests the
Court to dismiss the Standards Board's suspension of his
license to teach, with prejudice, as the Standards Board was
untimely in answering his appeal.
September 25, 2017, Mr. Morabito filed his Reply Brief. Mr.
Morabito again claims that the Standards Board's
Answering Brief was untimely. Therefore, Mr. Morabito
believes that it is invalid and does not require a response
from him. He asks "that his license suspension be
overturned, that all instances of perjury be investigated and
prosecuted, and that an independent investigation looking
into the deprivation of his ...