PEPYNE v. COMMISSIONER OF DEPARTMENT OF ELEMENTARY AND SECONDARY EDUCATION (2022)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff appeals from a Superior Court judgment affirming the final decision of the Commissioner (commissioner) of the Department of Elementary and Secondary Education (department) to revoke his Massachusetts educator license. We affirm.

Background. The plaintiff was a licensed educator and attorney in the Commonwealth. On February 8, 2010, the Supreme Judicial Court accepted the plaintiff's affidavit of resignation from the practice of law and entered a judgment of disbarment stemming from his ethical misconduct in six separate matters.² The plaintiff failed to report his disbarment to the department as required by 603 Code Mass. Regs. § 7.14(8)(i) (2005), and in 2011 misrepresented his bar status on an educator license application. After attempts to negotiate a resolution failed, the department sent the plaintiff an amended notice of probable cause informing him of its intention to revoke his license. On February 13, 2015, the plaintiff filed an amended answer and requested an adjudicatory hearing.

The commissioner referred the case to the Division of Administrative Law Appeals (DALA) for an adjudicatory hearing, and a prehearing conference was scheduled for April 27, 2015. Thereafter the plaintiff filed a motion to dismiss, and the department filed a motion for summary decision. The DALA administrative magistrate found that there was no genuine dispute of fact, allowed the department's motion, and recommended revocation of the plaintiff's license. On July 22, 2016, the commissioner issued a final decision that affirmed and adopted the magistrate's recommendation and ordered revocation of the plaintiff's license.

The plaintiff filed a complaint in the Superior Court. After several hearings, the judge entered a judgment affirming the commissioner's decision. This appeal followed.

Discussion. Judicial review of an agency's final decision is narrow and deferential. See G. L. c. 30A, § 14 (7). “We may set aside [a final agency] decision only if ‘the substantial rights of any party may have been prejudiced [because the agency's decision] is based on an error of law, unsupported by substantial evidence, or otherwise not in accordance with the law.’ ” Hall-Brewster v. Boston Police Dep't, 96 Mass. App. Ct. 12, 19-20 (2019), quoting Spencer v. Civil Serv. Comm'n, 479 Mass. 210, 215 (2018).

The plaintiff raised numerous claims in his brief, many of which are not supported by citations to the record or legal authority as required by Mass. R. A. P. 16 (a) (9), as appearing in 481 Mass. 1628 (2019); other claims are raised for the first time on appeal. See Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006) (issue waived if not raised below). Notwithstanding these deficiencies, we have considered those arguments which can be legitimately culled from the plaintiff's brief, and conclude that the judge did not err in affirming the commissioner's decision. The revocation of the plaintiff's license was supported by substantial evidence that the plaintiff (1) failed to properly report his disbarment to the department, (2) included false statements regarding the disbarment in his 2011 license application, and (3) was convicted of a crime of moral turpitude. Under 603 Code Mass. Regs. § 7.15(8)(a)(1)(c) (2014), the commissioner had authority to revoke a license when the license holder is convicted of a crime involving moral turpitude or one that discredits the profession, brings the license into disrepute, or lacks good moral character.

We address certain other issues raised by the plaintiff. The revocation proceeding was not “dead,” as the plaintiff claims, when sixty days elapsed after he requested a hearing on February 17, 2015. The regulation required that a hearing be “scheduled” within sixty days, 603 Code Mass. Regs. § 7.15(8)(e)(1) (2012), and here a hearing was scheduled in March 2015 for April 27, 2015.³ The judge did not err in quashing subpoenas that the plaintiff sent to department lawyers, as a judge does not take new evidence on appeal of an agency decision, and the judge followed the directive of Superior Court Standing Order 1-96 (2015) and confined his review to the record of this administrative appeal.⁴ The judge properly denied the plaintiff's request for damages, as damages are not a proper remedy under a review pursuant to G. L. c. 30A, § 14. See G. L. c. 30A, § 14 (7) (reviewing judge may affirm, remand, set aside, or modify agency decision).⁵

Judgment affirmed.

FOOTNOTES

2.   This included the intentional misuse of client funds (causing in excess of $185,000 in losses to elderly clients), forgery of signatures, charging and collecting excessive fees, and filing frivolous claims.

3.   DALA issued its summary decision without an evidentiary hearing, and the judge agreed with the commissioner's position that DALA was permitted to do so because “the facts of the plaintiff's criminal conviction were dispositive and not genuinely in dispute.” We concur.

4.   The plaintiff's effort to recast his claims as ones brought under 42 U.S.C. § 1983 is unavailing. Nowhere does his complaint allege a claim under that statute.

5.   “To the extent that we have not specifically addressed other points made ․ in [the] brief, they ‘have not been overlooked. We find nothing in them that requires discussion.’ ” Commonwealth v. Brown, 479 Mass. 163, 168 n.3 (2018), quoting Commonwealth v. Domanski, 332 Mass. 66, 78 (1954). The plaintiff's request for attorney's fees is denied.