STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF GUILFORD 02 EDC 0572

_____________________________________________________________________________

Charles Wordsworth )

Petitioner, )

)

vs. ) DECISION

)

N. C. State Board of Education )

Respondent. )

_____________________________________________________________________________

On April 7, 2003, Administrative Law Judge Melissa Owens Lassiter heard this contested case in High Point, North Carolina. On August 15, 2003, the Office of Administrative Hearings received Petitioner’s proposed Decision. On August 20, 2003, the Office of Administrative Hearings received Respondent’s proposed Decision. The undersigned hereby DENIES Respondent’s Pretrial Motion to Dismiss.

APPEARANCES

For Petitioner: James A. Dickens

Attorney at Law

430 West Friendly Avenue

Suite 300

Greensboro, N. C. 27401

For Respondent: Laura E. Crumpler

Assistant Attorney General

P. O. Box 629

Raleigh, N. C. 27602

ISSUES

1. Whether the Respondent acted erroneously, arbitrarily or capriciously in withdrawing the erroneous issuance of a Temporary Permit License, when such withdrawal was based upon erroneous issuance of the license to begin with?

2. Whether the procedures established in 16 N.C.A.C. 06C .0312 applied to the Respondent’s actions in this case?

FINDINGS OF FACT

1. Respondent is a State Agency authorized by the North Carolina Constitution to “supervise and administer the free public school system.” N. C. Const. Art. IX, sec. 5. As part of that obligation, the Respondent is vested with the sole authority to certify teachers to teach in North Carolina, subject only to other provisions of the Constitution and to laws enacted by the North Carolina General Assembly. Guthrie v. Taylor, 279 N. C. 703, 185 S.E.2d 193 (1971) cert. denied, 406 U.S. 920, 92 S. Ct. 1774, 32 L. Ed. 2d 119 (1972).

2. N. C. Gen Stat. § 115C-296 provides, in pertinent part, as follows:

(a) The State Board of Education shall have entire control of certifying all applicants for teaching positions in all public elementary and high schools of North Carolina; and it shall prescribe the rules and regulations for the renewal and extension of all certificates and shall determine and fix the salary for each grade and type of certificate which it authorizes: Provided, that the State Board of Education shall require each applicant for an initial bachelors degree certificate or graduate degree certificate to demonstrate the applicant’s academic and professional preparation by achieving a prescribed minimum score on a standard examination appropriate and adequate that that purpose.

3. Pursuant N.C. Gen. Stat. § 115C-21, DPI is the administrative arm of the Respondent Board that carries out the policies of the Respondent.

4. The Licensure Section of DPI is responsible for managing and overseeing the licensing of all professional educators in North Carolina. The Licensure Section establishes policies and procedures, consistent with State Board policy and State law, for the application, review, and issuance of teaching licenses.

5. Within the Licensure Section, Licensure Specialists review thousands of requests from applicants seeking not only teaching licenses, but also seeking salary increases due to additional experience credit or additional education or degrees. All relevant information concerning licensed teachers is maintained in an elaborate computer database. There are approximately 400,000 teacher licensing files maintained by the Licensure Section. (T pp. 25-27)

6. Pursuant to N. C. Gen. State. § 115C-295, it is illegal for a school system to employ unlicensed teachers.

7. Guilford County Schools (“GCS”) is a local education agency (“LEA”) duly constituted under Article 5 of Chapter 115C of the General Statutes, and governed by a local board of education vested with those powers set out specifically in N.C. Gen. Stat. § 115C-47 and elsewhere in the General Statutes.

8. In North Carolina, the relationship between the Respondent Board, the state agency, and the Guilford County Schools, the local education agency, is unique. Pursuant to our laws, the local school board employs public school teachers, see, e.g., N.C. Gen. Stat. § 115C-276(j). However, it is the Respondent Board that determines and authorizes the State salary and benefits for those teachers. The Respondent Board also is solely responsible for issuing licenses for public school teachers. Employment, years of experience, and type of licensure are interrelated issues which must be jointly managed by both the State and the local agencies involved.

9. When a teacher is employed by a local education agency, the employing unit becomes the point of contact for the Respondent Board on issues concerning the State’s administration of the salary and licensing systems. (T pp. 40-41) In this case, Guilford County Schools made the initial application for a teaching license for Petitioner. (T p. 46)

Likewise, communication from the Respondent concerning the denial of Alternative Entry License and the award of a Temporary Permit was addressed to the Guilford County Schools, not directly to Petitioner. (T pp. 49-50) In turn, the local administrative unit as the employer, Guilford County Schools, communicates pertinent licensing and salary information to the employee involved. Every party to the relationship has a substantial interest in ensuring effective and accurate communication. It is this mutual interest, as well as the three-way nature of the relationship, that forms the basis for the State’s process of issuing teaching licenses.

10. On August 17, 1998, GCS, as the local administrative unit, hired Petitioner as an interim social studies teacher for the 1998-1999 school year. (Resp Exh 1)

11. Prior to this employment, Petitioner taught at the Holy Rosary Elementary School in Brooklyn, New York from September 1989 to August 31, 1993. (Pet Exh 4 of Petitioner’s Motion for Summary Judgment)

12. On October 7, 1998, Judy Orchard, Licensure Specialist with GCS, applied for Petitioner’s North Carolina Teaching License. Ms. Orchard completed this application by signing Petitioner’s name outside of his presence, and indicating that Petitioner was eligible for an Alternative Entry License because he was certified in another state. Orchard submitted Petitioner’s application to the Licensure Section of DPI in Raleigh, North Carolina. (Resp Exh 1)

13. Petitioner’s original application requested licensure under N.C. Gen. Stat. § 115C-296.1 (Alternative Entry License). In March 1999, the Licensure Section denied that license request. Instead, the Licensure Section granted Petitioner a Temporary Permit. (Resp Exhs 3 & 4) At the same time, the Licensure Section awarded Petitioner an increase in pay, because he had received a graduate degree. (Resp Exh 5)

14. The March 31, 1999 denial of Petitioner’s request for an Alternative Entry License, is not at issue in this case.

15. A Temporary Permit is time-limited. The holder of a temporary permit/license must take and pass a specified professional examination, within a specified time to convert the license to a full teaching license. If the holder fails to take and pass the specified professional exam within the time allotted, the license expires.

16. In this case, Petitioner was required to pass the “Praxis” exam to convert his temporary teaching permit to a full teaching license. (T pp. 35-38, 40-44; 49; 52; 54; 211-12)

17. On March 19, 1999, DPI issued Petitioner’s Temporary License. The face of the license indicated that such license expired on June 30, 2000. Two copies of the license were mailed to the Guilford County schools, one for the Superintendent of Schools, and one to be given to the employee, Petitioner. (Resp Exh 4)

18. When the Temporary License expired on June 30, 2000, Petitioner had not successfully taken and passed the Praxis exam.

19. In August 2000, GCS officials met with Petitioner, and discussed the status of his Temporary Permit, and his failure to take and pass the Praxis. GCS officials advised Petitioner repeatedly that he needed to take and pass the Praxis examination to convert his Temporary Permit to a full teaching license. (Resp Exhs 11A, 12, 13) Petitioner’s teaching contract with GCS, entered into in August 2000 for the 2000-2001 school year, was contingent upon Petitioner’s meeting the State requirements for full licensure. (Resp Exh 12)

20. On September 28, 2000, GCS officials, on behalf of Petitioner, requested a one-year extension of Petitioner’s Temporary license. Petitioner did not initiate the Request. GCS officials initiated such request, and had Petitioner sign it. The request was based upon the school system’s erroneous belief that a recent State Board policy applied to Petitioner. Petitioner indicated on the request form that he had been issued a Lateral Entry License in 1998-99. However, Petitioner had actually been issued only a Temporary Permit, not a Lateral Entry License. (T pp. 62-64) (Resp Exh 6)

21. On October 23, 2000, Respondent granted Petitioner’s request for a one-year extension of Petitioner’s temporary permit, and issued such temporary permit/license to Petitioner effective until June 30, 2001.

22. On or about October 24, 2000, GCS officials checked Petitioner’s licensure status on DPI’s computer screen. The computer screen reflects licensing activity that State officials have entered into the system on State employees. Such computer screen indicated that Petitioner’s request for a one-year extension had been granted. (Resp Exh 7) The computer screen also indicated that Petitioner had been issued a new Temporary Permit with an expiration date of June 30, 2001.

23. There is no evidence that GCS officials advised Petitioner of the erroneous issuance of a one-year extension of his Temporary Permit, or that Petitioner was otherwise aware of such issuance at that time.

24. On November 1, 2000, Brenda Smith, Licensure Specialist at DPI, called GCS’ Allison Yates, and informed her they had erroneously granted Petitioner a one-year extension of his Temporary Permit, based upon Petitioner’s incorrect notation on his application that he had been issued a Lateral Entry License during the 1998-1999 school year. Ms. Smith indicated that Petitioner did not qualify for the extension since he had been employed on a Temporary Permit, not a Lateral Entry License. (Resp Exh 7) As a result of this error, on November 1, 2000, DPI reset the expiration date of Petitioner’s Temporary Permit from June 30, 2001 to June 30, 2000.

25. In February 2001, GCS officials met with Petitioner again, and explained the status of his Temporary Permit. (Resp Exh 12) Petitioner assured GCS that he had taken the Praxis, but failed to produce the results of his test to GCS. (Resp Exh 12) At that time, GCS officials informed Petitioner that if he would only sign up to take the test again, they would attempt to convince DPI to maintain his salary at the teacher level. (Resp Exh 12)

26. In February 2001, GCS officials contacted Brock Murray at DPI to ask for an extension for Petitioner to take and pass the Praxis exam. DPI denied such request, but approved Petitioner’s salary as a teacher, from the beginning of the 2000-01 school year until February 15, 2001. Petitioner’s teacher salary with GCS had been $3750.00 per month. (Resp Exhs 7; 10)

27. Effective February 16, 2001, Petitioner’s pay was reduced to that of a substitute teacher, approximately $74.00 per day. Despite the fact that Petitioner had no valid teaching license that school year, GCS paid Petitioner a full teacher’s salary from August 2000 until February 2001. Petitioner was not required to repay the excess salary to the State.

28. On March 2, 2001, GCS notified Petitioner that his benefits would be reduced because he could not meet the requirements for a full teaching license. (Resp Exh 11A, 12)

29. The Respondent Board has adopted a policy codified at 16 N.C.A.C. 6C.0312, governing revocation of teaching licenses. That rule provides, in pertinent part, that:

(a) The SBE may deny an application for a license or may suspend or revoke a license issued by the department only for the following reasons:

(1) fraud, material misrepresentation or concealment in the application for the license;

(2) changes in or corrections of the license documentation that makes the individual ineligible to hold a license; . . .

That rule requires the Department of Public Instruction to initiate revocation by giving notice of the charges to the teacher, by certified mail, return receipt requested, and to provide the teacher opportunity to contest the revocation in a contested case hearing pursuant to Chapter 150B of the General Statutes. 16 N.C.A.C. 6C.0312(c). The grounds listed in the rule for revoking a license are based upon wrongdoing on the part of a licensee, including conviction of a crime.

30. Revocation of one’s teaching license is registered in a national database that serves to notify all 50 states of the revocation and the grounds supporting it. In addition, a revocation is permanent, unless and until a person petitions the Respondent Board to reinstate the license and demonstrates good cause for reinstatement. 16 N.C.A.C. 6C.0302(f). (T p. 82)

31. In the case sub judice, Petitioner contended that Respondent revoked his license pursuant to 16 N.C.A.C. 6C.0312, but failed to follow the procedures set forth in that rule. However, Respondent contended that it did not revoke Petitioner’s license, but simply corrected a clerical error. Respondent also contended that it was not required to give notice pursuant to 16 N.C.A.C. 6C.0312. Nevertheless, Respondent placed Petitioner on notice of the limitations on his Temporary Permit, and afforded Petitioner an ample opportunity to comply with its requirements, to respond to the State Board’s actions, and to present his version of the events. In light of the circumstances of this case, and particularly in light of the fact that at no time did Petitioner contest his failure to take and pass the Praxis, Respondent contended that Petitioner was in no way deprived of an opportunity for notice and hearing.

32. The preponderance of the evidence was undisputed that as of the administrative hearing, Petitioner had yet to pass the Praxis. It is also undisputed that at any time that Petitioner took and passed the Praxis exam, he would be eligible for licensure. (T. 103; 166-68)

CONCLUSIONS OF LAW

Based upon the foregoing Findings of Fact, the undersigned concludes as follows:

1. The Office of Administrative Hearings has personal and subject matter jurisdiction over this contested case.

2. Respondent’s action in withdrawing the one-year extension of Petitioner’s Temporary License amounted to the correction of a clerical error typical of countless acts of recordkeeping that go on in an office the size of Respondent’s Licensure Section. Since the Section maintains over 400,000 teacher license records, it is not uncommon for licensure employees to have to correct errors in licenses from time to time.

3. Respondent’s action in this case did not constitute a “revocation” of Petitioner’s teaching license as that term is used in 16 N.C.A.C. 6C.0312(a). The “revocation” contemplated by that Rule is predicated on acts or offenses involving misconduct or malfeasance by the licensee or applicant. 16 N.C.A.C. 6C.0312(a).

Furthermore, pursuant to that rule, revocation carries with it certain consequences, none of which are present here. For example, revocation is permanent. A teacher whose license is revoked may not teach in North Carolina public schools unless and until he or she petitions the Respondent for reinstatement of the license, and is granted such reinstatement. Additionally, a teacher whose license is revoked is entered into a national database thus alerting all other states that a revocation has occurred and the grounds for that revocation. None of these consequences occurred here.

4. Since the Respondent’s actions did not constitute a “revocation” under 16 N.C.A.C. 6C.0312, the procedures set forth in that rule do not apply to this case. As a result, Respondent did not fail to follow proper procedure in this case.

5. Petitioner has failed to show that Respondent’s action in withdrawing the one-year extension of his Temporary Permit was erroneous, arbitrary, or capricious. First, the withdrawal of the one-year extension was made after Respondent discovered that it was granted in error, based upon erroneous or mistaken information supplied by GCS and Petitioner when they requested such extension. There was nothing in Respondent’s actions that was arbitrary or capricious.

6. In addition, Respondent’s actions were not without notice and hearing to Petitioner. Pursuant to 16 N.C.A.C. 6C.0311(b) “A temporary permit shall be valid for the remainder of the fiscal year during which the permit is established.” A preponderance of the evidence proved that Petitioner was aware of both the time-limited nature of his Temporary Permit, as well as the requirement that he take and pass the Praxis exam, to convert his temporary teaching permit to a full teaching license. The evidence is also undisputed that GCS gave Petitioner ample opportunity to respond to the notification by Respondent, of the status of his license in November 2000. Petitioner’s responses were not sufficient and, more significantly, he never denied that he failed to take and pass the Praxis exam as required by the State. As a result, Petitioner’s temporary permit expired on its own.

7. Regarding Petitioner’s claims that he was denied notice and hearing, in addition to his opportunities to respond at the local level, Petitioner pursued his remedy under Chapter 150B to contest the action of the Respondent. He has been given a full evidentiary hearing at this point, with the opportunity to both present witnesses and to confront those testifying for Respondent.

8. Based upon a preponderance of the evidence, Respondent’s actions in this case were not arbitrary, capricious, or unlawful.

DECISION

Base upon the foregoing Findings of Fact and Conclusions of Law, the undersigned determines that Respondent did not exceed its authority, act erroneously, fail to use proper procedure, act arbitrarily or capriciously, or fail to act as required by law.

ORDER AND NOTICE

The North Carolina State Board of Education is the agency that will make the final decision in this contested case. N.C. Gen. Stat. § 150B-36(b), (b1), (b2), and (b3) enumerate the standard of review and procedures the agency must follow in making its Final Decision, and adopting and/or not adopting the Findings of Fact and Decision of the Administrative Law Judge.

Pursuant to N.C. Gen. Stat. § 150B-36(a), before the agency makes a Final Decision in this case, it is required to give each party an opportunity to file exceptions to this decision, and to present written arguments to those in the agency who will make the Final Decision. N.C. Gen. Stat. 150B-36(b)(3) requires the agency to serve a copy of its Final Decision on each party, and furnish a copy of its Final Decision to each party’s attorney of record and to the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699-6714.

This the 17th day of September, 2003.

______________________________

Melissa Owens Lassiter

Administrative Law Judge

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