IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

ANTHONY MORABITO,
. Case No. Kl7A-06-001 WLW
Appellant, : Kent County
v.
PROFESSIONAL STANDARDS
BOARD,
Appellee.

Submitted: October 9, 2017
Decided: January 23, 2018

OPINION AND ORDER
Appellant’S Motion to Dismiss - Dem`ea'.
Appeal from the Decision of the
Professional Standards Board - Ajirmed.

Anthony Morabito, pro se.

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

WITHAM, R.J.

Anthony Morabito v. Professional Stds. Board
C.A. No. Kl 7A-06-001 WLW
January 23, 2018

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 BACKGROUNDl

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

 

1 Since this matter involves an appeal of an administrative agency’s decision, the Court
confines its review to the facts contained in the record, and it is those facts that are referenced herein.

2 Morabito v. Bd. of Ea'uc. of Smyrna Sch. Dist., C.A. No. 09A-09-005 (Del. Super. July 15,
2010).

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Duty.3

On May 16, 201 l, 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

 

3 Id.

4 Morabito v. Bd. of Educ. of Smyrna Sch. Dist., 2011 WL 1887548 (Del. May l6, 2011)
(TABLE).

5 Ia'.
6 Morabito v. Ina'us. Accident Bd., C.A. No. Kl 1A-10-005 (Del. Super. Jun. 29, 2012).

7 Ia'.

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teacher.8
In the summer of 201 5, Mr. Morabito applied for a teaching position with the
Milford School District. In his application, Mr. Morabito indicated the following:
Question l: Have you ever been dismissed from an employment

position?

Answer: Yes, after a workplace injury in 2009, l was unable to perform
my duties.

duestion 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.

 

8 Id.

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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.

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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 Procea'ures 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. (hereinaf`ter, 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)] 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

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January 23, 2018

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: (l) 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

 

9 See Recommendation of Hearing Officer at 4.

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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

 

10 Id. at 6.

11 Mr. Morabito was denied requests to depose or question other witnesses based on his
failure to subpoena additional witnesses prior to the deadlines set forth by Mr. Kenton,

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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: (l) 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

Ultirnately, 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-

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January 23, 2018

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: (l) 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

 

12 Id. at 51.

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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

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identified the following dates for the parties briefings in this matter:

Opening Brief: August 2l, 2017

Answering Brief: September ll, 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 ll, 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. lt 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 constitutional and civil rights be initiated.” Mr. Morabito’s

additional arguments are set forth in the next section.

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THE PARTIES’ ARGUMENTS

l. Mr. Morabito ’s Opening Brief and Reply Brief

First, Mr. Morabito contends that “the denial of [his] Due Process rights by
Milford was unconstitutional.”

Second, Mr. Morabito contends that it was improper for the Secretary of the
Education Department to wait eight months to investigate his termination from the
Milford School District.

Third, Mr. Morabito contends that the Education Department’s investigation
was conducted improperly because he was never interviewed by the department’s
investigator nor was he provided with a list of “similar offences [sic] and
punishments.” And, apparently, the Education Department never investigated Mr.
Morabito’s claim that Mr. Lloyd was a “serial perjurer.”

Fourth, Mr. Morabito contends that it was improper for the Hearing Officer to
deny his continuance request, sent to the Board on January 30, 2017.

Fifth, Mr. Morabito contends he was denied counsel at the hearing.

Sixth, Mr. Morabito contends that “he didn’t learn that the meeting was
changed to a one day hearing from the original two day schedule until [he] arrived at
the hearing.”

Seventh, Mr. Morabito contends that he was not allowed to subpoena witnesses
or documents

Eighth, Mr. Morabito contends that the Hearing Officer wrongfully prevented
him from continuing his questioning of Mr. Lloyd “after he admitted that the reason

Smyrna fired [him] the second time is they thought [he] was lying like the first time

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January 23, 2018

they fired [him].” Mr. Morabito alleges that Mr. Lloyd did not apparently claim that
Mr. Morabito was fired for Neglect of Duty. Instead, Mr. Morabito believes that Mr.
Lloyd’s testimony establishes that he was actually fired from the Smyrna School
District because he fell and was hurt.

Ninth, Mr. Morabito contends that it was improper for the Hearing Officer to
deny his request to introduce a video tape depicting a fall that he suffered while
employed by the Smyrna School District. Mr. Morabito alleges that he intended to
introduce the video tape as evidence that a witness at the hearing, Mr. Lloyd, was a
“serial perjurer.”

Tenth, Mr. Morabito contends that “[w]hile the Board did hear [his] oral
arguments, they neglected to consider or even discuss any of the points [he] brought
to their attention.” Specifically, the Board did not discuss “the equity of the offense
to the punishment.” And, “[t]here was no consideration that this situation has caused
[Mr. Morabito] to lose 3 full time positions with benefits (The job [he] left to take
the Milford job, the Milford job, and the position [he] lost at the alternative school
when [his] license was suspended/revoked.).” Moreover, the Standards Board did not
consider the economic impact that Mr. Morabito suffered.

Eleventh, Mr. Morabito contends that the Standard Board’s decision to suspend
his license for two years does not “fit the crime.” Later in his brief, he describes it
as “arbitrary and capricious.” He claims that he submitted the same application, in
dispute here, to apply for many jobs In those interviews he was asked about his
termination from the Smyrna School District, and he contends that he explained his

termination in further detail. Milford School District apparently did not ask Mr.

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Morabito about his prior termination

2. The Board ’s Answer

First, the Standards Board contends that its decision should be affirmed
because it is supported by overwhelming evidence that stands un-rebutted by Mr.
Morabito.

Second, the Standards Board contends that its decision should be affirmed
because it is free from legal error. More precisely, the Standards Board contends that
its decision was not “arbitrary and capricious,” and Mr. Morabito was afforded Due
Process of Law.

STANDARD OF REVIEW

For administrative appeals, this Court limits its review to whether an
administrative board’s decision is supported by substantial evidence and is free from
legal error.13 Substantial evidence is that which “a reasonable mind might accept as
adequate to support a conclusion.”14 lt is “more than a scintilla, but less than a
preponderance of the evidence.”15 In reviewing the Standards Board’s decision, the
Court is to avoid acting as a “trier of fact with authority to weigh the evidence,

determine questions of credibility, and make its own factual findings and

 

13 29 Del. C. § 10142(d); Avon Prods. v. Lamparski, 293 A.2d 559, 560 (Del. 1972).

14 Olney v. Cooch, 425 A.2d 610, 614 (Del. Super. 1981) (citing Consolo v. Fed. Mar.
Comm ’n, 383 U.s 607, 620 (1996)).

15 ld. (quoting Cross v_ califano, 475 F.supp. 896, 898 (M.D. F1a. 1979)).

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conclusions”16 On the other hand, the Court will find an abuse of discretion if the

Standards Board “acts arbitrarily or capriciously . . . or exceeds the bounds of reason

in view of the circumstances and has ignored recognized rules of law or practice so

as to produce injustice.”17
DISCUSSION

A. Mr. Morabito ’s “Motion to Dismiss”

Mr. Morabito contends that the Court should disregard the Standards Board’s
Answering Brief and reverse the suspension of his teaching license because the
Answering Brief was untimely. More precisely, Mr. Morabito claims that the
Answering Brief was not mailed to him until September 13, 2017 , and he did not
receive it until September 15, 2017.18 He also claims that it was not sent by certified
mail. Even if Mr. Morabito’s claims are true, however, he is not entitled to relief
under these circumstances because the Standards Board’ s alleged error in mailing was
de minimus in light of the board’s timely filing of the Answering Brief with the
Prothonotary.

The Brief Schedule issued by the Court, in conjunction with Superior Court

Civil Rule `72(g), stipulates that the Standards Board was required to serve and file

 

16 Johnson v. Chrjysler Corp., 213 A.3d 64, 66 (Del. 1965).
17 Del. Transit Corp. v. Roane, 2011 WL 3793450, at *5 (Del. Super. Aug. 24, 2011).

18 The Court notes that Mr. Morabito has not provided the Court with any evidence of this
contention. It would have been helpful to the Court if he had provided the mailing envelope that he
received. Nonetheless, the Court will consider his allegations as if they are true,

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an Answering Brief no later than September ll, 2017 .19 Nevertheless, in this case,
even if the Court believes Mr. Morabito’s contention that the Standards Board failed
to mail him a copy of the board’s Answering Brief until September 13, 2017, the
Court is not inclined to grant him the relief he requests because the docket indicates
that the board properly filed its Answering Brief with the Prothonotary on September
ll, 2017. In other words, the Standards Board’s alleged error in service is not
substantial enough, in light of its timely filing, for the Court to disregard the board’s
Answering Brief. Moreover, Mr. Morabito has not alleged any prejudice as a result
of receiving the brief four days late.

As to Mr. Morabito’s objection to the form of mailing, under these
circumstances, the Court is not aware of any rule that requires service by certified
mail.

Therefore, in light of the foregoing, Mr. Morabito’s “Motion to Dismiss” is
DENIED.

B. Mr. Morabito ’s Grounds for Appeal

l. T he Milford Board ’s denial of Mr. Morabito ’s request for a hearing
regarding his termination ji'om the Milford School District

Mr. Morabito contends that he was denied due process by the Milford Board

 

19 Super. Ct. Civ. R. 72(g) provides in pertinent part:

The appellant’s brief shall be served and filed 20 days after the date of said filing of
such record as provided in Rule 72(e). The appellee’s answering brief shall be served
and filed 20 days thereaf°cer. The appellant shall serve and file the reply brief, if any,
not later than 10 days thereafter.

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because he was not afforded a hearing to discuss the recommended termination of his
employment from the Milford School District. He claims that he requested a hearing
before the Milford Board but was denied because the board did not receive his
request in time. Mr. Morabito alleges that such a denial violates due process

Unfortunately for Mr. Morabito, the scope of these proceedings does not permit
the Court to review the Milford Board’s decision to deny him a hearing. Instead, this
proceeding is limited to reviewing the decision of the Standards Board, Seeing as the
Standards Board would not have jurisdiction to review the decision of the Milford
Board, the Court cannot now consider the Milford Board’s decision in this appeal.

2. The Secretary ’s Eight Month Delay

Mr. Morabito contends that it was improper for the Secretary of the Education
Department to wait eight months before initiating an investigation of Mr. Morabito’ s
termination from the Milford School District. Mr. Morabito raised a similar, albeit
slightly different, argument to the Hearing Officer below. The Hearing Officer
understood the basis for Mr. Morabito’s objection to be, whether or not the
Department of Education notified Mr. Morabito in accordance with 14 Del. C. §
1218.20 The Court agrees with the Hearing Officer’s decision to apply § 1218,
especially considering that Mr. Morabito has not directed the Court to consider
another provision of the Delaware Code or any rules specifically pertaining to the
Education Department.

Pursuant to 14 Del. C. § 1218, Mr. Morabito was entitled to notice of the

 

20 See Recommendation of Hearing Officer at 8-9.

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following:

(g) . . . The [Education] Department shall give written notice to any
license holder of any notification received under this subsection to the
license holder’s last known address Such notification shall be made
within 15 days of receipt of the district or charter school’s report to the
Department of misconduct under this subsection. . . .

(h) . . . The [Education] Department shall give written notice within a
reasonable period of time to a license holder of any investigation
initiated hereunder to the license holder’s last known address . . .

The Hearing Officer determined that the Education Department satisfied both
of these requirements as a result of the department’s letter to Mr. Morabito, sent on
November 16, 2015.21 The Court agrees with the Hearing Officer’s determination for
three reasons First, citing 14 Del. C. § 1218(g), the letter informs Mr. Morabito that
the Education Department received notice of his termination from the Milford School
District for immorality - falsification of employment records22 Second, citing 14 Del.
C. § 1218(h), the letter informs Mr. Morabito that the Secretary of the Education
Department has initiated an investigation23 Third, a certified mailing receipt
demonstrates that the letter was sent to Mr. Morabito’s last known mailing address

on November 16, 2016, and was signed by Lisa Morabito.24

 

21 See Recommendation of Hearing Officer at 48; see also Professional Standards Board Ex.
R-l 8.

22 Id.
23 Id.
24 Id.

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ln sum, there was substantial evidence for the Hearing Officer to conclude that

Mr. Morabito received notice sufficient to satisfy 14 Del. C. § 1218(g) & (h).
3. The Department ’s Investigation

Mr. Morabito contends that the Education Department’s investigation was
conducted improperly because he was never interviewed by the department’s
investigator nor was he provided with a list of “similar offences [sic] and
punishments.” And, apparently, the Education Department never investigated Mr.
Morabito’s claim that Mr. Lloyd was a “serial perjurer.”

The Hearing Officer’s Recommendation acknowledges that Mr. Morabito
raised these concerns at the hearing through the testimony of Charles J. Simpson, an
investigator for the Education Department.25 However, the Hearing Officer did not
consider Mr. Morabito’s objections in the Hearing Officer’s conclusions of law
analysis26 The Court presumes that the Hearing Officer declined to consider the first
two concerns because there is no indication that the Education Department was
required to interview Mr. Morabito or provide him with a list of similar offenses and
punishments27 The Court agrees with this determination, especially considering that
Mr. Morabito has not presented a single shred of evidence to contradict it. As to Mr.

Lloyd’s testimony, the Hearing Officer was perfectly capable of assessing his

 

25 See Recommendation of Hearing Officer at 32-35.
26 Id. at 44-52.

27 Id at 32-35 (Mr. Simpson testified that “there is not a statute or Department of Education
requirement that a person under investigation be interviewed.”).

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credibility as the finder of fact. Thus, it is insignificant that Mr. Simpson failed to
investigate Mr. Morabito’s bare claim that Mr. Lloyd was a “serial perjurer.”

In sum, the Hearing Officer did not commit an error of law regarding Mr.
Morabito’s third contention.

4. The Hearing O]j‘l`cer ’s denial of Mr. Morabito ’s continuance request

to subpoena documents and witnesses

On January 30, 2017, Mr. Morabito requested his second continuance of the
Standards Board’s previously scheduled hearing because he needed more time to (1)
obtain an attorney and (2) review the Standards Board’s rules of procedure in order
to depose witnesses and subpoena evidence. The Hearing Officer, relying upon
subsection 2.9 of the Professional Standards BoardHearing Procedures and Rules,28
denied Mr. Morabito’s request for a continuance to obtain counsel because he had
previously been granted a continuance on the same basis ln addition, the Hearing

Officer denied Mr. Morabito’s request for additional time to depose witnesses and

 

28 Subsection 2.9 of the Professional Standards Board Hearing Procedures and Rules
provides in toto:

The Standards Board may continue, adjourn or postpone proceedings for good cause
at the request of a party or on its own initiative. Absent a showing of exceptional
circumstances, requests for postponements of any matter scheduled to be heard by
the Standards Board shall be submitted to the Executive Director in writing at least
three (3) business days before the date scheduled for the proceeding. The Chair of
the Standards Board shall then decide whether to grant or deny the request for
postponement. If a hearing officer has been appointed, the request for postponement
shall be submitted to the hearing officer, who shall decide whether to grant or deny
the request.

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subpoena evidence because Mr. Morabito’s hearing had already been continued once
for two months and Mr. Morabito had previously been provided with a copy of the
Standards Board’s procedures and rules as early as June 2016. Mr. Morabito
contends that the Hearing Officer’s decision to deny his continuance request was in
error.

The Court cannot agree with Mr. Morabito’s contention, particularly in light
of the axiom that “an administrative agency’s interpretation of its rules [is]
presumptively correct.”29 This deference is given to “an administrative agency’s
construction of its own rules in recognition of its expertise in a given field.”30
Accordingly, “an administrative agency’s interpretation of its rules will not be
reversed unless ‘clearly wrong.”’31 But where it appears that the rights created or
benefits conferred by an agency’s construction of its rules are contrary to their plain
meaning, reversal is required.32

In this case, there is no indication that the Hearing Officer’s decision to deny
Mr. Morabito’s continuance request was “clearly wrong.” Rather, it appears that, on
more than one occasion, the Hearing Officer provided significant deference to Mr.
Morabito as a pro se litigant. Nonetheless, Mr. Morabito failed to provide a

satisfactory basis to continue his hearing for a second time. Therefore, the Court

 

29 Div. of Soc. Serv. v. Burns, 438 A.2d 1227, 1229 (Del. 1981).

30 Id. (citing Diebold, Inc. v. Marshall, 585 F.2d 1327 (6th Cir. 1978).
31Id. (citing Peterson v. Hall, 421 A.2d 1350, 1353 (Del. 1980).

32 Id.

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finds that Mr. Morabito’ s objection to the Hearing Officer’ s denial of his continuance
request is without merit.
5. Mr. Morabito ’s contention that he was denied counsel at the hearing
Mr. Morabito contends that he was denied counsel at his hearing before the
Hearing Officer. Although Mr. Morabito did not specifically identify how he was
denied counsel, the Court presumes that Mr. Morabito believes the Hearing Officer
improperly prevented him from obtaining counsel as a result of the Hearing Officer’s
denial of his second continuance request, mentioned in the previous section. Mr.
Morabito’s contention is utterly without merit because, as the Court previously
explained, the Hearing Officer’s decision to deny the continuance request was not
“clearly wrong.” Moreover, it is not the Hearing Officer’s or the Standards Board’s
fault that Mr. Morabito failed to obtain representation, especially considering that he
had more than seven months, from the date of the Secretary’s notice of the intent to
revoke his teaching license, to do so.33
6. Notice of the hearing length
Mr. Morabito claims that he was not aware that the evidentiary hearing before
the Hearing Officer had been shortened, from two days to a single day, until he
arrived at the hearing. Mr. Morabito’s actual knowledge, however, is irrelevant
because he admitted at the evidentiary hearing that he received notice of the hearing

from the Executive Director, Chris Kenton, specifying that the hearing was scheduled

 

33 See Recomrnendation of Hearing Officer at 44.

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for a single day, February 22, 2017 at 8:30 a.m.34 The notice does not provide for any
additional time. Therefore, if Mr. Morabito anticipated that he would need an
additional day to present his case, he should have requested it in accordance with the
rules and procedures of the Standards Board. As he failed to do so, the Court is not
compelled to grant him relief because the claimed error is actually his own.
7. Mr. Morabito ’s alleged misunderstanding of the process to subpoena
witnesses and documents
Mr. Morabito claims that he was not allowed to subpoena witnesses or
documents However, this claim is utterly without merit, and does not constitute a
basis for relief`, because Mr. Morabito’s inability to subpoena witnesses and
documents is wholly the result of his own failure to comply with the Standards
Board’s rules and procedures For instance, instead of requesting subpoenas for
witnesses and evidence at least fifteen business days before the date of his evidentiary
hearing, as required by the Standards Board’s rules, Mr. Morabito attempted on
multiple occasions during the hearing to have the Hearing Officer obtain evidence for
him.35 As it is the Hearing Officer’s responsibility to conduct the hearing and issue

a proposed order,36 not to gather evidence on behalf of the parties, the Hearing Officer

 

34 See Transcript of Evidentiary Hearing at 224-25.

33 See, e.g. , Transcript of Evidentiary Hearing at 377-38 (where Mr. Morabito asks the
Hearing Officer to “do some fact checking and maybe talk to the presidents of the Ethics Board, who
I did work for before, and ask him if there were instances where I refused to change students grades,
and ask him about my abilities as a teacher and whether I have truthfulness or veracity.”)

36 29 Del. C. § 10125(a).

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was clearly justified in refusing to comply with Mr. Morabito’s requests In the
alternative, Mr. Morabito requested three separate continuances so that he might
subpoena additional witnesses himself.37 The Hearing Officer denied Mr. Morabito’ s
requests because Mr. Morabito failed to demonstrate “exceptional circumstances”38
as to why he did not subpoena the witnesses within the fifteen day time limit
proscribed by the Standards Board’s rules39

Like Mr. Morabito’s second continuance request,40 the Court cannot find that
the Hearing Officer was “clearly wrong” by denying what constituted Mr. Morabito ’ s
third, fourth, and fifth continuance request.41 Instead, it is again apparent that Mr.
Morabito failed to comply with the Standards Board’ s rules and procedures by failing
to request subpoenas within the proscribed time limitation. As Mr. Morabito is
required to abide by the Standards Board’s rules, even as a pro se litigant, the Court

is unable to grant him relief. Therefore, the Court finds that Mr. Morabito’s

contention, that he was denied an opportunity to subpoena evidence, is without merit.

 

37 See Recommendation of Hearing Officer at 44-45.

33 See Professional Standards BoardHearingProcedures and Rules subsection 2.9 (whereby
the Standards Board may not continue a proceeding absent “exceptional circumstances” if a party
fails to submit a written request to the Executive Director of the Standards Board at least three
business days before the date scheduled for the proceeding).

39 See Recommendation of Hearing Officer at 44-45.
40 See supra p. 18-19 and accompanying notes

41 See Recommendation of Hearing Officer at 44-45.

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8. Mr. Lloyd ’s testimony

Mr. Morabito contends that it was improper for the Hearing Officer to
prematurely terminate Mr. Morabito’s questioning of the former Smyrna School
District Assistant Superintendent, Clarence E. “Buddy” Lloyd. Mr. Morabito believes
that if he was permitted to continue his questioning, he would have been able to
establish that he was not actually terminated from the Smyrna School District for
neglect of duty. Rather, he believes that he was terminated due to an injury that he
suffered while employed at Smyrna. There is one glaring problem with this
contention, however. The Superior Court, on two separate occasions, and the
Delaware Supreme Court both determined that Mr. Morabito had been fired from the
Smyrna School District for neglect of duty.42 Therefore, as the Hearing Officer is
bound by the courts’ prior decisions, it was not in error for the Hearing Officer to
deny Mr. Morabito’s attempt to re-litigate the purpose of his termination from the
Smyrna School District. In sum, Mr. Morabito is not entitled to relief regarding this
issue.

9. The videotape of Mr. Morabito ’s injury

Mr. Morabito’ s ninth contention is that it was improper for the Hearing Officer
to deny his request to introduce a videotape depicting a fall that he suffered while
employed by the Smyrna School District. Mr. Morabito believes that the video would
have demonstrated that Mr. Lloyd had lied during previous proceedings before the

 

42 See Morabito v. Bd. of Educ. omeyrna Sch. Dist. , C.A. No. 09A-09-005 (Del. Super. July
15, 2010); Morabito v. Bd. ofEduc. omeyrna Sch. Dist., 2011 WL 1887548 (Del. May 16, 2011)
(TABLE); Morabito v. _Indus. Accident Bd., C.A. No. K11A-10-005 (Del. Super. Jun. 29, 2012).

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Superior Court and the Industrial Accident Board, The Hearing Officer denied Mr.
Morabito’s request to introduce the videotape because it was completely irrelevant
to the proceeding.43 The Court agrees, because the Hearing Officer was perfectly
capable of testing the veracity of Mr. Lloyd’s testimony without the necessity of a
video that had nothing to do with the issue before the Hearing Officer. If anything,
introduction of the video would have likely led to Mr. Morabito attempting to re-
litigate issues already decided by the Superior Court and the Delaware Supreme
Court. Thus, the Court finds that it was not improper for the Hearing Officer to
exclude the videotape.
l O. The facts considered by the Standards Board

Mr. Morabito’s tenth claim for relief appears to center upon the Standards
Board’s alleged failure to consider the economic impact that Mr. Morabito has, and
will likely, suffer as a result of the suspension of his license.44 After reviewing the
Standards Board’s Final Order, however, the Court can safely conclude that Mr.
Morabito’s contention is false.

The Court directs Mr. Morabito’s attention to page seven and eight of the
Standards Board’s Final Order. lt states, in pertinent part:

Finally, the Board deliberated on the Hearing Officer’ s recommendation
that revocation is appropriate discipline thus affirming Secretary
Godowsky’s proposed action. The Board rejected this recommendation

 

43 See Transcript of Evidentiary Hearing at 330-32.

44 Mr. Morabito also contends that the Standards Board failed to consider “the equity of the
offense to the punishment.” As the Court believes this overlaps with his eleventh contention, the
Court will address Mr. Morabito’s objection as part of that analysis

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and found that a two-year suspension of Mr. Morabito’s license and
standards certificates is more appropriate discipline. The Board
discussed that falsifying an employment application is misconduct that
warrants some form of discipline. The Board also discussed that
discipline should fit the nature of the misconduct and that revocation is
the severest form of discipline available in license disciplinary actions
The Board noted that if Mr. Morabito ’s license is suspended, he would
not be permitted to work in Delaware public schools and his suspension
must be reported.45

The Court emphasized the final sentence of quoted language because it indicates to
the Court that the Standards Board did in fact consider the economic impact that Mr.
Morabito would suffer if his license was suspended. Moreover, the fact that the
Standards Board decided to reduce Mr. Morabito ’ s punishment from revocation to the
suspension of his license, indicates to the Court that the Standards Board was more
than aware of the impact that its decision would have on Mr. Morabito. Therefore,
the Court concludes that Mr. Morabito’s tenth contention is without merit.

l I. The Standards Board ’s decision to suspend Mr. Morabito ’s teaching
license and certificates

Mr. Morabito’s final contention, in essence, is that it was unfair to suspend his
license for what he considers “paperwork violations.”46 In legal terms, he contends

that the Standards Board’s decision to suspend his license was “arbitrary and

 

43 The Standards Board’s Final Order at 7-8 (emphasis added).

46 He also attempts to cast blame upon the Milford School District for not questioning Mr.
Morabito regarding his misleading answers on his application. The immaturity of this contention
is astounding. Moreover, it has nothing to do with the Court’s analysis of the Standards Board’s
decision. Therefore, the Court does not find it necessary to discuss it any further.

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capricious.” Neither contention has any merit, however.

The choice of a penalty by an administrative agency is a matter of discretion
to be exercised solely by the agency, as long as it is based on substantial evidence and
not outside of its statutory authority.47 In reviewing the penalty imposed by the
Standards Board, the question for the Court is not whether this Court would have
imposed the same penalty as that imposed by the board, but whether such punishment
is so disproportionate to the offense in light of all the circumstances as to be shocking
to one’s sense of fairness.48

In this case, the Court does not find that the Standards Board’s punishment is
disproportionate in light of the circumstances because Mr. Morabito’s offense
constituted more than just, as he contends, a mistake in filling out paperwork.
Instead, it is apparent that he intentionally concealed pertinent information regarding
his termination frorn the Smyrna School District. And, regardless of his beliefs, he
concealed this information in direct contradiction to three separate Delaware court
opinions that specifically identified the real reason for his termination Therefore, it
is unsurprising that the Standards Board felt it necessary to impose a harsh
punishment, as Mr. Morabito has continuously demonstrated his inability to accept
the consequences of his actions

ln sum, it was not in error for the Standards Board to suspend Mr. Morabito’s

 

47 Crocco v. Bd. ofMed. Practice, 1990 WL 105056, at *3 (Del. Super. July 13, 1990) (citing
Warmouth v. State Bd. of Examiners in Optometry, 514 A.2d 1119, 1123 (Del. Super. 1985)).

43 Id. at *8.

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teaching license for two years
CONCLUSION
In light of the Court’ s foregoing analysis, Mr. Morabito’s “Motion to Dismiss,”
filed on September 18, 2017, is DENIED. And, Mr. Morabito’s appeal is DENIED.
Accordingly, the decision of the Delaware Professional Standards Board is
AFFIRMED.
IT IS SO ORDERED.

/s/ William L. Witham. Jr.
Resident Judge

WLW/dmh

30

