District/School Administration Administration
The Massachusetts Board of Elementary and Secondary Education

Status Report on FY07 License Revocation and Limitation Matters

This is a report to the Board of Education on educator license investigations, revocations, limitations, and related matters that the Department of Elementary and Secondary Education addressed in Fiscal Year 2007.

Background and Process: Under the statute and regulations on educator licensure, the Commissioner may suspend, limit, or revoke an educator's license if an investigation determines, among other things, unfitness, or gross misconduct or negligence in the conduct of the license holder's professional duties and obligations, or conviction of a crime reflecting a lack of good moral character. 603 CMR 7.14(8)(a). Most of the reports of educator misconduct that the Department receives are the result of the regulation that the Board adopted in 2003, requiring public school administrators to report to the Commissioner on the dismissal, resignation or non-renewal of employment of a licensed educator for reasons that implicate the grounds for license limitation. 603 CMR 7.14 (8)(h). Since the Board adopted the reporting requirement, the number of matters requiring investigation has increased at least fivefold.

When the Department receives a misconduct report about a license holder, our Investigator of Educator Misconduct, Frank Shea, working with Legal Counsel Cathleen Cavell, opens a file and begins an investigation. It is usually necessary for the investigator, counsel or both to interview witnesses, including the license holder, students, school employees, administrators, parents and others in order to determine what happened. When the license holder has been charged with or convicted of a crime, the Department must obtain court and other law enforcement records. If the investigator and legal counsel determine there is insufficient basis to conclude that a license holder has committed misconduct covered by 603 CMR 7.14 (8)(a) or that any misconduct cannot be proved, we close the file.

Whenever an investigation establishes probable cause to find that the license holder's license should be revoked, suspended or otherwise limited for one or more of the reasons set forth in the regulations, Cathleen Cavell and Frank Shea bring that information to the Department's Office of Educator Licensure. After receiving the Commissioner's approval, the Office of Educator Licensure issues a probable cause letter to the license holder, who then has the option either to allow the license action to be taken or to request an administrative adjudicatory hearing. If the holder requests a hearing, the Commissioner appoints a hearing officer as his designee, and the hearing follows the hearing procedures outlined in the state Administrative Procedure Act, G.L. c. 30A, and the regulations on adjudicatory proceedings.

Frank Shea and Cathleen Cavell also conduct investigations and advise the Commissioner in all cases where the Department learns that an applicant for educator license has a criminal record or other history of misconduct or problems with another professional license. Unlike the procedures required when the Department decides to revoke or limit an existing license, an applicant for original licensure has no right to a hearing if refused. Rather, the regulations provide that upon denial of an initial application, the applicant may seek reconsideration from the Commissioner. On original licensure, the Commissioner's decision is final.

Significant Investigations: In FY 2007, the Department opened 75 significant investigations and continued to investigate 68 additional matters carried over from previous years, for a total of 143 investigations. "Significant investigations" are cases that require obtaining records from courts, school districts, former employers and other entities; interviewing witnesses; researching applicants' and license holders' history in Massachusetts and elsewhere; and conferring with legal counsel and investigators in other jurisdictions. Please see the chart attached to this memorandum comparing case totals for the past five years.

Cases Completed: In FY 2007, the Department resolved 23 significant investigations by limiting or denying licensure. Those 23 cases fall into the following categories: 7 revocations; 5 surrenders (i.e., voluntary surrender of a license in lieu of revocation proceedings); 7 suspensions for a term of years; 2 limitations prohibiting transporting students as a result of substance abuse convictions; and 2 license denials. We also closed 14 matters which did not warrant prosecution or in which applications for initial licensure were resolved by denial or licensing after significant investigation.

Some license-holders who receive a notice of probable cause to revoke or limit their license choose to appeal from that determination and exercise their right to a hearing. Many of these appeals are subsequently withdrawn. Some may extend over several years. Often, these contested cases settle on the eve of hearing. In FY 2007, 7 educators took new appeals from a notice of probable cause; 4 withdrew appeals and their licenses were revoked; 2 licenses were suspended based upon an agreement between the parties; 1 matter was stayed awaiting disposition of criminal charges (the licensee died before the matter came to trial); 3 cases are still awaiting hearing; and 3 matters required preparation for hearing, submission of pleadings, exhibits and legal briefs.

One contested case was heard and decided in FY2007. In that matter, prosecuted by Legal Counsel Lucy Wall, Associate Commissioner Jeff Wulfson as hearing officer held two days of hearing in June 2007, and determined that license revocation was warranted. That license-holder has appealed to Superior Court where the matter is pending; the Attorney General's Office is representing the Commissioner and Department. In another contested case heard in FY 2006, Associate Commissioner Wulfson rendered a decision in FY 2007, finding that, although the district's dismissal of a license-holder was proper, no license action was warranted.

Four cases in which teachers were working and receiving public funds using forged licenses were reviewed by the Department of Elementary and Secondary Education and reported to the Attorney General's Office for criminal prosecution. Indictments were returned in September 2007 in two of these cases, and we continue to work with the Attorney General's Office to prosecute these felony charges. We also assisted the Attorney General's Office in a successful motion to dismiss a civil case that sought to hold the Department and Commissioner responsible for improper conduct by a licensed educator that allegedly caused harm to a student.

License Applicants: In FY 2007, the Department resolved seven license applications requiring unusual attention: two of these licenses were denied and five were granted. In addition, during FY 2007, Frank Shea completed 505 relatively routine investigations without involving the legal staff; these were mainly of licensure or re-licensure applicants whose applications or renewals raised initial questions. This represents an increase of 178 cases from 2006.

Related Matters: The Department is continuing to increase its efforts to assist school and district administrators in meeting their responsibilities to exercise due diligence in hiring and supervision of staff and to follow up on allegations of educator misconduct, with careful attention to educators' right to due process and the right of students to a safe school environment. Legal Counsel Cathleen Cavell has developed a suggested checklist for school employee misconduct investigations that we provide to superintendents to assist them in investigating allegations of misconduct. She has adapted the checklist to help administrators conduct investigations into MCAS irregularities, which can have licensure consequences if educators are found to have acted improperly. Further, she advises the MCAS unit in all matters reported to the Department where irregularities occurred in the administration of MCAS. She also advises our MTEL unit when there are allegations of misconduct by test-takers at the educator licensure examinations.

During FY 2007, Frank and Cathleen assisted and advised Legal Counsel Debra Comfort and the Department's Office of Proprietary Schools in investigating and resolving a complex matter involving allegations of criminal misconduct by the operator of a state-licensed proprietary school.

In October 2006, Cathleen and Frank made a presentation about the conduct of educator misconduct investigations in Massachusetts at the National Association of State Directors of Teacher Education and Certification in Baltimore, MD, which was well received. In April 2007, they addressed the annual meeting of Massachusetts school human resources professionals. They continue to consult with school district administrators and school attorneys whenever misconduct by licensed educators is alleged. They are also members of a working group that includes our Administrator for Educator Licensure, Brian Devine, and school superintendents, human resource directors, school attorneys and others, who meet regularly to review and develop legislative proposals.

Protecting the Commonwealth's school children is at the heart of our work. Maintaining the high quality and integrity of the educational profession and the 73,000+ licensed educators who are working in Massachusetts schools is fundamental to our mission. I will continue to report periodically to the Board on our work in this area.

Attachment: Chart on Educator License Actions, FY 2000-2007