Opinion
08-04277.
October 8, 2010.
Lovett Gould, LLP, Attorneys for the Petitioners, White Plains, New York.
Attn: Jonathan Lovett, Esq., Charlene M. Indelicato, Westchester County Attorney, White Plains, New York.
Attn: Carole F. Arcuri, Esq., Assistant County Attorney, Donna Minort, Elizabeth Pace.
Petitioner Jacqueline Byrnes ("petitioner") seeks a judgment and order pursuant to Article 78 of the Civil Practice Law and Rules nullifying the November 1, 2007 determination by respondent Kevin P. Mahon, the Commissioner of Social Services for the County of Westchester ("Mahon"), which terminated petitioner's employment as a Supervisor of Case Work effective November 9, 2007. Petitioner contends that Mahon's action was "arbitrary, unlawful and otherwise illegal."
On July 29, 2005, two children from a family with an active Child Protective Services ("CPS") case died (the "Maldonado / Arroyo" case). The case had been assigned to Dennaya Joyce ("Joyce"), a probationary Senior Social Caseworker in petitioner's CPS unit. Joyce was terminated after she had admitted that she failed to adhere to CPS procedures and protocol in regard to handling the case. On August 17, 2005, petitioner was served with a Notice of Charges pursuant to Civil Service Law § 75 which contained twelve specifications of misconduct relating to her alleged failure to adequately supervise Joyce for the time period of June 6, 2005 through July 27, 2005. Accordingly, a hearing was held before Hearing Officer Robert Ponzini on petitioner's disciplinary charges on November 18, 2005, January 30, 2006, August 7, 2006, November 8, 2006 and January 29, 2007. On October 11, 2007, the Hearing Officer issued his Report and Recommendation, which made findings of fact which sustained all of the charges and which recommended the penalty of termination (Verified Answer, Exhibit G). On November 1, 2007, respondent Mahon notified petitioner that he was adopting the Hearing Officer's findings of fact and recommendation of termination, and terminated petitioner from her position of Supervisor of Case Work effective from the close of business on November 9, 2007 (Verified Answer, Exhibit A).
Specifically, these twelve charges, numbered (1a) to (1l), charge petitioner with failing to take appropriate supervisory action to ascertain the risk level of the case (1a), failing to adequately review Joyce's notes from June 6, 2005 through July 27, 2005 (1b); failing to adequately monitor whether Joyce was making timely home visits (1c); failing to adequately inquire into the circumstances of the home visit(s) in June and July, 2005 to determine if additional action should be taken (1d); failure to adequately inquire into the circumstances of the home visits to determine if contact with the family members was accomplished between June 10 and June 13, 2005 (1e); failure to assign another caseworker to make a home visit while Joyce was attending training during the week of June 13, 2005 (1f); failure to adequately monitor whether Joyce was timely inputting her observations and notes on the case in the computer (1g); failure to review the computer case notes on the family during the month of June, 2005, and prior to bi-weekly conferences with Joyce on July 6, 2005 and July 13, 2005 (1h); failure to follow-up with Joyce on whether she made domestic violence or chemical dependency referrals (1i); failure to adequately review the notes which stated that David Maldonado had been arrested (1j); failure to properly assess the home environment in that she did not direct Joyce to question David Maldonado and/or Luz Arroyo about the two children who were living outside the household (1k), and failure to follow up at her July 13, 2005 conference with Joyce regarding her July 7, 2005 email directive to Joyce to complete her overdue notes by July 12, 2005 (1l) (Verified Answer, Exhibit B).
Petitioner commenced this proceeding to challenge respondents' action in terminating her employment, alleging that Mahon was disqualified from rendering the final administrative determination and should have recused himself. Petitioner alleges that such recusal was necessary because Mahon publically pronounced petitioner guilty of misconduct prior to the conclusion of the disciplinary hearing and received and read material about the disciplinary hearing which was de hors the record. Petitioner further alleges that her due process rights were violated by the selection of Ponzini as the hearing officer and that the imposed penalty of termination was excessive.
For her Fifth Cause of Action in her Verified Petition, petitioner alleged that the administrative determination was not supported by substantial evidence. However, as a substantial evidence question would require this case to be transferred to the Appellate Division, Second Department, in her Reply to the respondents' Answer, petitioner withdrew that cause of action to avoid the delay in transferring the case to the Appellate Division (Petitioner's Reply Memorandum of Law).
Respondents oppose the petition. They allege that there was no basis for Mahon's recusal or disqualification because Mahon's public statements about the death of the Maldonado / Arroyo children did not constitute a prejudgment of petitioner's guilt and that while Mahon, as the Commissioner of the County Department of Social Services, was knowledgeable regarding the investigation and the preferring of charges against petitioner, he based his decision on matters appearing in the hearing record. As to petitioner's claim regarding bias on the part of the Hearing Officer, respondents dispute that any such bias existed and argue that petitioner failed to meet her burden in demonstrating such bias. Lastly, respondents contend that the penalty of termination was properly imposed in light of all of the circumstances of the case.
It is black letter law that an impartial decision maker is a core guarantee of due process, which guarantee is fully applicable to adjudicatory administrative proceedings ( Matter of 1616 Second Avenue Restaurant, Inc. v. N.Y.S. Liquor Auth., 75 NY2d 158, 161 (1990); Matter of Warder v. Bd. of Regents of the Univ. of the State of NY, 53 NY2d 186, 197 (1981); see also Withrow v. Larkin, 421 U.S. 35, 46-47 (1975)). However, disqualification is only required where an administrator has a preconceived view of the facts at issue in a specific case as opposed to prejudgment of general questions of law or policy ( Matter of 1616 Second Avenue Restaurant, Inc. v. N.Y.S. Liquor Auth., supra). A mere allegation of prejudgment or bias on the part of an administrator is insufficient; in order to sustain such a claim, there must be a factual demonstration to support the allegation of bias and proof that the outcome flowed from it ( Matter of Warder v. Bd. of Regents of the Univ. of the State of NY, supra). Moreover, there is a presumption of honesty and integrity accorded to administrative body members ( Matter of Yoonessi v. State Bd. for Professional Med. Conduct , 2 AD3d 1070 , 1071 (3d Dept. 2003), lv. denied, 3 NY3d 607 (2004)).
Petitioner's allegation that Mahon should have recused himself from rendering the final administrative determination in this matter as a result of allegedly making public pronouncements of petitioner's guilt is without merit. The petition contends that Mahon met with and made a statement to the Yonkers District Office staff wherein he advised the staff that Joyce and petitioner were "responsible" for the deaths of the Maldonado / Arroyo children by reason of their failure to follow department protocol (Verified Petition, ¶ 7b) and further alleges that Mahon told the same thing to Deputy County Executive Laurence Schwartz and County Executive Andy Spano and testified to that fact before the Westchester County Board of Legislators ( Id., ¶¶ 7c, 7d, 7e). In support of her contention, petitioner attached a copy of Mahon's deposition testimony (as well as that of Mahon's Associate Commissioner of Human Resources, Bonnie Kamm) taken in petitioner's civil rights law suit currently pending in the Southern District of New York ( Byrnes v. Mahon, 07 Civ 0633 (CLB)).
While public statements that indicate an administrator's prejudgment of specific facts at issue in an adjudicatory proceeding are problematic, as they may have the effect of entrenching the official in the publically stated position and make it difficult for the official to reach a different conclusion after consideration of the record ( Matter of 1616 Second Avenue Restaurant, Inc. v. N.Y.S. Liquor Auth., supra at 162), mere familiarity with the facts of a proceeding or taking a public position on a policy issue related to the proceeding have been held insufficient to require disqualification ( Id.).
In his deposition testimony, Mahon acknowledged meeting with the Yonkers District Office staff right after the deaths of the children had occurred (Mahon Deposition, p. 64). He testified that the purpose of that meeting was to "talk to people about why we were preferring charges and what was happening and why it was happening" and that "people were charged for not doing their job" ( Id.). Mahon stated that it was necessary to have this meeting with the staff because the staff thought that the Department was acting because children died and Mahon "needed to explain that to staff so that they understood that this had nothing to do with child death, and it had everything to do with not doing your job." ( Id. at 92). Mahon further stated that neither of the individuals were identified by name to the staff ( Id. at p. 90), that petitioner was present for this meeting, and that he had not suspended her at that point because he "didn't know the extent of her not doing her job" which was not revealed to him until he read the transcript of the disciplinary hearing ( Id. at p. 86-87). As to statements made to Deputy County Executive Laurence Schwartz and County Executive Andy Spano, Mahon stated that he had conversations with Schwartz and Spano regarding what happened and then again to advise as to the results of the investigation and the preferring of charges ( Id. at 50-59). As to his testimony before the County Board of Legislators, Mahon stated that he initially advised that them that there was an on-going investigation and "some time thereafter" advised as to the results of the investigation that the supervisor "didn't follow protocols" in the context of a discussion about procedures put in place at the department in 2003 ( Id. at 32-34).
While these hearings were evidently taped, (Mahon Deposition, p. 33), no transcript or other record of Mahon's testimony before the Board of Legislators was provided to this Court.
None of the above statements disqualified Mahon from rendering the final administrative determination or required his recusal. His statements to his staff at the Yonkers District Office were designed to quell his employees' fears that they would face discipline if a child from one of their cases died regardless of whether they handled the case appropriately and in accordance with departmental procedures. He did not name any employee by name, and indeed, had not suspended petitioner at this point because he admittedly did not yet have enough information about what happened and therefore awaited the results of the hearing to make his determination. His statements to Schwartz and Spano were in accordance with his responsibility as the Commissioner of the County Department of Social Services to keep the County Executive apprised of the status of a high profile case involving the horrific deaths of two children. His statements to the Board of Legislators were in the same vein and were made in the context of policy considerations regarding procedures in place to prevent such deaths. In this regard, Mahon's general statements regarding the basic facts of the case and the charges involved do not demonstrate bias and are clearly distinguishable from those which were condemned by the Court of Appeals in Matter of 1616 Second Avenue Restaurant, Inc. v. N.Y.S. Liquor Auth., supra. In that case, which involved charges of underage drinking at the petitioner's premises, the Commissioner of the State Liquor Authority, in his testimony before the State Senate, stated that he was "going to bring [the petitioner] to justice" and that he was "trying to come up with alternate ways to establish by substantial evidence that in fact there was an under age person was served alcoholic beverages at [the petitioner's premises]." In contrast to that case, in the matter at bar, there is no indication that Mahon had already determined to find petitioner guilty of any of the twelve specific charges brought against her or intended to terminate her employment. Indeed, throughout his deposition testimony, Mahon indicated that he based his decision finding petitioner guilty of the charges and imposing the penalty of termination upon the record of the disciplinary hearing (Mahon Deposition, pp. 39, 43, 68, 86-7, 92). Given this, even assuming arguendo that petitioner established bias on Mahon's part, she has failed to establish that the result of the proceeding flowed from that bias ( see Matter of Warder v. Bd. of Regents of the Univ. of the State of NY, supra).
Petitioner's argument that Mahon should have recused himself and was disqualified from rendering the final administrative determination on the basis that he received information about the hearing de hors the record is also without merit. Petitioner specifically alleges that Mahon received reports about the case and updates about the hearing from various subordinates within his department and that his receiving of such information disqualified him from rendering a decision in this case. While it is true that it is improper for an administrative agency to base an adjudicatory decision upon information or evidence outside the record ( Matter of Simpson v. Wolansky, 38 NY2d 391 (1975); Matter of Spetalieri v. Quick, 96 AD2d 611, 612 (3d Dept. 1983)), petitioner has failed to demonstrate that Mahon actually relied upon any information outside the record in reaching his administrative determination in petitioner's case. To the contrary, in his deposition testimony, while acknowledging that he received certain limited information about the case and hearing from staff members (Mahon Deposition, pp. 9, 15, 41-43, 71-75, 87), Mahon stated that he read the transcript of the disciplinary hearing ( Id. at 67) and made clear that he based his decision in this case upon the record developed therein ( Id. at 39, 43, 68, 86-7, 92). As Mahon did not rely upon any outside information in rendering his determination and instead based his determination upon the evidence set forth in the hearing record, he was not disqualified from rendering the decision in this case ( see Matter of Smith v. Bd. of Educ. Onteora Cent. Sch. Dist., 221 AD2d 755, 758 (3d Dept. 1995), lv. denied, 87 NY2d 810 (1996); Matter of Joseph v. Stolzenberg, 198 AD2d 506 (2d Dept. 1993)).Petitioner's claim of bias on the part of the Hearing Officer must also be dismissed, as petitioner has failed to establish a factual demonstration in support thereof. Petitioner alleges that the Hearing Officer always finds in favor of the County and finds its witnesses to be credible because the County pays for his services and "regularly distorts and/or fabricates evidence' supportive of the County's legal conclusions" (Verified Petition, ¶ 7). Petitioner also alleges that at the conclusion of the hearing, the Hearing Officer issued "a materially false and misleading report" which recommended that petitioner be convicted of the charges and be terminated; however, petitioner does not elucidate as to what specifically in the report she considered to be false and misleading.
Petitioner has failed to provide factual evidence sufficient to overcome the presumption that the Hearing Officer was free from bias ( see Matter of McLean v. City of Albany , 13 AD3d 851 , 852 (3d Dept. 2004)). Petitioner's bald allegations of Hearing Officer bias are insufficient to establish a factual basis in support of the allegation, and are also insufficient to prove that the outcome in this case flowed from that alleged bias ( see Matter of Warder v. Bd. of Regents of the Univ. of the State of NY, supra; Matter of Schindlar v. Inc. Vil. Of Lloyd Harbor, 261 AD2d 626 (2d Dept. 1999); see also Matter of Rice v. Belfiore, 15 Misc 3d 1105(A) (Sup. Ct. West. Co., 2007)). Moreover, a review of the hearing record and the report issued thereafter fails to substantiate petitioner's allegations of bias ( see Matter of Lennox v. Tarrytown Volunteer Fire Dept. , 50 AD3d 690, 691 (2d Dept. 2008); Matter of Schindlar v. Inc. Vil. Of Lloyd Harbor , supra; Matter of Correll v. Bucci, 19 AD3d 919, 921 (3d Dept. 2005)).
Lastly, petitioner alleges that the imposition of the punishment of termination was excessive because other supervisors in the Yonkers District Office were allegedly identically situated to her with respect to their failure to follow the same protocols that petitioner was accused of not following and these individuals were not terminated (Verified Petition, Point IV). Petitioner's position is again without merit. While petitioner points out that there were other supervisors with case workers who were not up to date with progress notes (Mahon Deposition, pp. 22-23), only two of the twelve charges (1(f) and 1(k)) preferred against petitioner dealt with the issue of case notes not being up to date. Petitioner provides no evidence that there have been any other supervisors similarly situated to her in regard to all of the allegations against her who were treated differently.
Investigations into child abuse allegations are sensitive matters and CPS supervisors have critical rolls to play in ensuring that investigations are conducted properly and in accordance with departmental protocols so as to best protect the children and families involved. Given the circumstances set forth in the record regarding petitioner's failure to fulfill her supervisory duties in regard to Joyce, the penalty of termination was not excessive. The penalty was not so disproportionate to the offense as to be shocking to one's sense of fairness and its imposition by respondent did not constitute an abuse of discretion ( Matter of Short v. Nassau Co. Civil Serv. Comm., 45 NY2d 721, 722 (1978); Matter of Pell v. Bd. of Educ., 34 NY2d 222, 233 (1974); see also Matter of Rutkunas v. Stout , 8 NY3d 897, 898 (2007) (where petitioner's conduct jeopardized public health and safety, penalty of dismissal was not excessive); Matter of Will v. Frontier Central Sch. Dist., 97 NY2d 690, 691 (2002) (same); Matter of Brey v. Bd. of Educ., 245 AD2d 613, 615 (3d Dept. 1997)).
Accordingly, the Article 78 petition is denied and the proceeding is dismissed.
This Decision constitutes the Order and Judgment of the Court.