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Morabito v. Professional Standards Board

Superior Court of Delaware, Kent

January 23, 2018

ANTHONY MORABITO, Appellant,
v.
PROFESSIONAL STANDARDS BOARD, Appellee.

          Submitted: October 9, 2017

         Appellant's Motion to Dismiss - Denied.

         Appeal from the Decision of the Professional Standards Board - Affirmed.

          Anthony Morabito, pro se.

          Patricia A. Davis, Esquire of the Department of Justice, Dover, Delaware; attorney for the Professional Standards Board.

          OPINION AND ORDER

          William L. Witham. Jr. Resident Judge.

         Before 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.

         This 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.

         FACTUAL AND PROCEDURAL BACKGROUND[1]

         On September 16, 2009, Mr. Morabito was terminated from the Smyrna School District for Neglect of Duty.

         On July 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.[2] The Superior Court found that the hearing officer had substantial evidence to support his finding that Mr. Morabito was terminated for Neglect of Duty.[3]

         On May 16, 2011, the Supreme Court of Delaware issued an order that affirmed the Superior Court's July 15, 2010 decision.[4] 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 employment.[5]

         On June 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.[6] 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.[7] 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 teacher.[8]

         In the 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 position?
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?
Answer: No.

         Based on these misrepresentations, Mr. Morabito was hired by the Milford School District for the September 2015-June 2016 school year.

         On 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.

         On 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."

         On 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.

         On June 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.

         On July 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 availability.

         On 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 § 3.3.2.5 (subpoena requests) and PSB Hearing Rule § 3.3.2.6 (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.

         On 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.[9]

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.

         On 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.

         On 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.

         On 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

         February 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.[10]

         On 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 Board.

         During 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.[11]

         On 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.

         Ultimately, 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."[12] 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.

         On 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.

         On May 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 District.

         On May 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.

         On June 23, 2017, Mr. Morabito appealed the Standards Board's decision to this Court.

         On July 26, 2017, the Court issued a Brief Schedule Notice. The Court identified the following dates for the parties briefings in this matter:

Opening Brief: August 21, 2017
Answering Brief: September 11, 2017
Reply Brief: September 25, 2017

         On August 21, 2017, Mr. Morabito filed his Opening Brief. His arguments are set forth in the next section.

         On September 11, 2017, the Standards Board filed its' Answering Brief. The Standards Board's arguments are set forth in the next section.

         On 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.

         On 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 ...


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