STATE OF NORTH CAROLINA IN THE OFFICE OF



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF MECKLENBURG 05 EDC 1270

______________________________________________________________________________

MARIO L. CLEGG, )

Petitioner, )

)

v. ) DECISION by

) SUMMARY JUDGMENT

NORTH CAROLINA DEPARTMENT of, )

PUBLIC INSTRUCTION, )

Respondent. )

______________________________________________________________________________

THIS MATTER is before the undersigned Augustus B. Elkins II, Administrative Law Judge, on the Respondent’s timely filed Motion for Summary Judgment in this Contested Case and on Petitioner’s timely filed cross Motion for Summary Judgment. Each party has responded to the other regarding their respective motions. The Undersigned having considered the entire record finds that the Respondent’s motion and Petitioner’s motion and matters contained therein are now ripe for disposition. The Petitioner is represented by his counsel, Brandon M. Lofton, Esq. and the Respondent is represented by Assistant Attorney General, Laura E. Crumpler, Esq.

Standard of Review-Summary Judgment

The standard of review for summary judgment is whether there is a genuine issue of material fact and whether the movant is entitled to judgment as a matter of law. See Kessing v. National Mortgage Corp., 278 N.C. 523, 534, 180 S.E.2d 823, 830 (1971). To entitle one to summary judgment, the movant must conclusively establish a legal bar to the nonmovant’s claim or complete defense to that claim. See Virginia Elec. and Power Co. v. Tillett, 80 N.C.App. 383, 385, 343 S.E.2d 188, 190-91, cert denied, 317 N.C. 715, 347 S.E.2d 457 (1986).

A party moving for summary judgment satisfies its burden of proof (1) by showing an essential element of the opposing party's claim is nonexistent or cannot be proven, or (2) by showing that the opposing party cannot produce evidence to support an essential element of his or her claim or (3) the opposing party cannot surmount an affirmative defense which would bar the claim. See Bernick v. Jurden, 306 N.C. 435, 293 S.E.2d 405 (1982).

FINDINGS OF FACT

1. Petitioner has been a teacher for almost ten (10) years, first receiving his North Carolina teaching license in 1996. (Petitioner Affidavit, Ex. A) Beginning his teaching career in the Cabarrus County School System, where he taught for two (2) years, he earned good appraisals from school administration, consistently receiving either at standard or above standard evaluations. (Petitioner Affidavit) In addition to his regular teaching duties, Petitioner coached middle school football and basketball teams. Petitioner relocated to Chester, South Carolina in 1998, where he taught South Carolina and United States History in the Chester County School System. While teaching in Chester County Schools, Petitioner received good appraisals from school administration. (Petitioner Affidavit) Petitioner also coached football, boys’ basketball and girls’ basketball at the middle and high school levels. (Petitioner Affidavit)

2. In 2002, it was alleged that Petitioner engaged in unprofessional and unethical conduct towards female students in South Carolina schools. Petitioner believed that the allegations stemmed from a note Petitioner used to instruct a female student that she was inappropriately dressed for class and that she needed to correct her appearance. Petitioner has denied intending to convey any inappropriate connotations with the note and has expressed regret if any such connotations were conveyed.

3. The Chester County School District suspended Petitioner from his position as a teacher at Chester High School on May 3, 2002, after an investigation into allegations that he acted inappropriately towards and in the presence of female students. The allegations included that he wrote inappropriate notes, and made comments of a sexual nature. A recommendation was subsequently made by District officials to terminate Petitioner. Petitioner resigned his employment at Chester High School on May 13, 2002.

4. On June 11, 2002, the South Carolina State Board of Education summarily suspended Petitioner’s “educator’s” certificate and sent notice to Petitioner of the possible suspension or revocation of his certificate. The grounds that supported the proposed revocation of Petitioner’s South Carolina teaching certificate included allegations that he made comments and wrote notes of a sexual nature to several female students.

5. Upon receiving notice that the South Carolina State Board of Education would meet to determine the possible revocation or suspension of his teaching license, Petitioner requested a hearing in order to contest the allegations against him. Petitioner subsequently withdrew his request for a hearing and voluntarily surrendered his South Carolina teaching license, agreeing to never re-apply in South Carolina. In surrendering his South Carolina teaching license, Petitioner made no admissions of culpability and continues to deny the allegations of unprofessional and unethical conduct.

6. On November 12, 2002, the South Carolina Board accepted Petitioner’s surrender of his teaching license. In its “Consent Order of Voluntary Surrender,” attached as Exhibit 2 to Respondent’s Turner Affidavit, the South Carolina Board concluded that the, “South Carolina Board of Education may, for just cause, either revoke or suspend the certificate of any person.” The Conclusions of Law in the Consent Order went on to state, “Just cause includes: “Unprofessional conduct, and immorality.” The South Carolina Board concluded the “preponderance of the evidence presented supports its decision to accept the voluntary and permanent surrender of [Petitioner’s] certificate…” (South Carolina Board Order) The South Carolina Board noted that “[t]his surrender will be reported to the NASDTEC Clearinghouse and all South Carolina school districts as a permanent surrender with the statutory reasons listed as unprofessional conduct.” (South Carolina Board Order)

7. The action of the South Carolina State Board of Education was (as noted in its Consent Order) reported to the National Association of State Directors of Teacher Education and Certification (NASDTEC) Clearinghouse, pursuant to the NASDTEC Interstate Agreement. The Clearinghouse is a database administered by the education departments of the states who belong to NASDTEC and it is a list of all educators against whom individual states have taken disciplinary action. The action regarding Petitioner by South Carolina was reported to NASDTEC attached to a cover page entitled, “Notification of Invalidation of Teaching Certificate.” Besides listing Petitioner’s name, date of birth and so on, the Notification cites that the “Nature of Invalidation” is “Voluntary Surrender (Revocation)” and that the “Cause of Action” was “Unprofessional conduct.” The “Duration of Penalty” is listed as “Permanent.” The Notification is signed by the Interim Director of the Office of Teacher Certification in the South Carolina Department of Education, and is dated December 9, 2002.

8. Petitioner returned to North Carolina in 2003, and has taught in the Charlotte Mecklenburg School System. Petitioner has taught AP Psychology, United States History and African American Studies. (Petitioner’s Affidavit) Petitioner has received good appraisals from school administration, receiving at standard or above standard teaching evaluations. Petitioner also coaches football and girls’ basketball. At all times during his tenure of teaching in North Carolina, Petitioner has taught without incident. (Petitioner’s Affidavit)

9. Upon receiving notification of the action by the South Carolina State Board of Education, Respondent wrote to the South Carolina Department of Education requesting the official record of action regarding the Petitioner. In response to its inquiry, Respondent received two documents from South Carolina: Notice of Invalidation of Teaching Certificate (Turner Affidavit, Ex. 1; Wilson Affidavit); and the Consent Order of Voluntary Surrender (Turner Affidavit, Ex. 2; Wilson Affidavit,). Both documents indicated the action in South Carolina was permanent. The Notice of Invalidation indicated that the nature of the invalidation was “Voluntary Surrender (Revocation).”

10. The South Carolina Consent Order states that Petitioner through his South Carolina attorney, Christopher A. Wellborn, proposed an alternative resolution (to a hearing) regarding the matter, where Petitioner would voluntarily surrender his teaching certificate and never re-apply in South Carolina. As part of the agreement with the South Carolina Board regarding Petitioner’s voluntary surrender, Petitioner, through his attorney, believed that South Carolina would only report the action as a permanent surrender of Petitioner’s license. They recalled that no one from the South Carolina Board indicated that the term “revocation” would be included in the reporting of Petitioner’s voluntary surrender. (Wellborn Affidavit, Ex. B)

11. On June 14, 2005, Respondent issued notice of its intent to revoke Petitioner’s North Carolina teaching license, under 16 N.C.A.C. 6C.0312(a)(7), on the grounds that his license to teach had been revoked in another state. Petitioner timely filed his petition for a contested case hearing.

CONCLUSIONS OF LAW

1. The Office of Administrative Hearings has personal and subject matter jurisdiction of this contested case. To the extent that the Findings of Fact contain Conclusions of Law, or that the Conclusions of Law are Findings of Fact, they should be so considered without regard to the given labels.

2. The North Carolina State Board of Education is vested with the authority, by Constitution and by statute, “to supervise and administer the free public school system,” and control the certification of applicants for teaching positions in all public elementary and high schools of North Carolina.” N.C. Const. Art. IX, sec. 5; N.C.G.S. § 115C-12, . N.C.G.S. § 115C-296(a). Pursuant to its authority to regulate the certification, or licensing, of teachers, the North Carolina State Board of Education has adopted rules, codified in 16 N.C.A.C. 6C.0312, that govern the suspension and revocation of teacher licenses. The duly adopted rules of the North Carolina State Board of Education provide that the Board may revoke a North Carolina teaching license on grounds of “revocation of a license by another state” 16 N.C.A.C. 6C.0312.

3. In this case there is no dispute that Petitioner voluntarily surrendered his license in South Carolina and the State Board of Education there accepted his surrender based upon “unprofessional conduct.” It is also undisputed that the South Carolina State Board of Education accepted the surrender on the condition that it be permanent, that it be reported to NASDTEC, and the Petitioner would be barred from re-applying to teach in South Carolina. The Notification of Invalidation of Teaching Certificate sent to NASDTEC by the South Carolina State Board of Education specifically noted that the voluntary surrender equated to a revocation.

4. There is no plea agreement or any other legal and binding document from the South Carolina records indicating that the South Carolina State Board of Education refrain from, or in any way be prohibited from, reporting its actions as synonymous with the revocation of Petitioner’s South Carolina professional teaching certificate; and in fact the Department of Education so reported the Board’s activity to NASDTEC as a voluntary surrender (revocation).

5. The Undersigned understands Petitioner’s beliefs and arguments surrounding the voluntary surrender of his South Carolina teaching certification. However, Petitioner’s frustrations regarding the totality of his agreements with the South Carolina Board of Education, lie with the South Carolina Department of Education and their reporting of the nature of his invalidation as a revocation on December 9, 2002. The use of the word revocation and that characterization of the nature of the invalidation of his teaching certificate by South Carolina to a national database, cannot be ignored by the North Carolina State Board of Education.

6. A party moving for summary judgment satisfies its burden of proof (1) by showing an essential element of the opposing party's claim is nonexistent or cannot be proven, or (2) by showing that the opposing party cannot produce evidence to support an essential element of his or her claim or (3) the opposing party cannot surmount an affirmative defense which would bar the claim. See Bernick v. Jurden, 306 N.C. 435, 293 S.E.2d 405 (1982). When ruling on summary judgment, the evidence is viewed in the light most favorable to the non-moving party, according that party the benefit of all reasonable inferences. See Bailey v. Blue Cross & Blue Shield of Virginia, 67 F.3d 53 (4th Cir. 1995) cert. denied, 516 U.S. 1159, 116 S.Ct. 1043, 134 L.Ed.2d 190 (1996).

7. The Respondent has met its burden of proof on its Motion for Summary Judgment by its showing that Petitioner’s license to teach had been revoked in another state. Petitioner has failed to meet the burden of proof required to prevail on his Motion for Summary Judgment.

DECISION

There is sufficient evidence in the record to properly and lawfully support the Conclusions of Law cited above. Based on the foregoing Findings of Fact and Conclusions of Law, and for the reasons set forth above, Petitioner’s Motion for Summary Judgment is denied, and Respondent’s Motion for Summary Judgment is ALLOWED.

NOTICE

The agency making the final decision in this contested case shall adopt the Decision of the Administrative Law Judge unless the agency demonstrates that the Decision of the Administrative Law Judge is clearly contrary to the preponderance of the admissible evidence in the official record. The agency is required to give each party an opportunity to file exceptions to this Decision issued by the Undersigned, and to present written arguments to those in the agency who will make the final decision. N. C. Gen. Stat. § 150B-36(a).

In accordance with N.C. Gen. Stat. § 150B-36, the agency shall adopt each finding of fact contained in the Administrative Law Judge’s decision unless the finding is clearly contrary to the preponderance of the admissible evidence.

For each finding of fact not adopted by the agency, the agency shall set forth separately and in detail the reasons for not adopting the finding of fact and the evidence in the record relied upon by the agency. Every finding of fact not specifically rejected as required by Chapter 150B shall be deemed accepted for purposes of judicial review.

For each new finding of fact made by the agency that is not contained in the Administrative Law Judge’s decision, the agency shall set forth separately and in detail the evidence in the record relied upon by the agency establishing that the new finding of fact is supported by a preponderance of the evidence in the official record.

The agency that will make the final decision in this case is the North Carolina State Board of Education. The agency is required by N.C.G.S. 150B-36(b) to serve a copy of the final decision on all parties and to furnish a copy to the parties’ attorneys of record and to the Office of Administrative Hearings.

IT IS SO ORDERED.

This is the 2nd day March, 2006.

___________________________

Augustus B. Elkins II

Administrative Law Judge

................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download