Disciplinary proceedings brought by Delaware County against its social services commissioner, Dana Scuderi-Hunter, are drawing to a close as attorneys for both sides submitted their final arguments to the hearing officer on Saturday.
Under the Civil Service Law statute governing disciplinary hearings, the recommendation of the hearing officer, Alfred T. Riccio, will be forwarded to the authority responsible for appointing the civil service employee in question — in this case, the Delaware County Board of Supervisors — to render a final decision in the matter.
The board is expected to discuss and vote on the matter at its Dec. 11 meeting, according to Scuderi-Hunter. County representatives did not return requests for confirmation.
Board chair Tina Molé said in an email that she intends to make public the hearing officer’s recommendations “after we take our vote to fire (Scuderi-Hunter) and after I read my official statement.”
Frank Miller, the Syracuse-based attorney representing Delaware County in the proceedings, referred a request for access to his closing brief to the county, which did not respond to a similar request. He declined to comment on the brief submitted by Ronald Dunn, who is representing Scuderi-Hunter, except to note that the Albany-based attorney “violated a long-standing commitment not to share pleadings or documents from the case.”
“Regardless of whatever recommendation the Hearing Officer makes, it is quite clear that neither Tina Molé nor James Eisel may participate in any deliberations before the Board of Supervisors since both were witnesses in this proceeding,” Dunn wrote, citing six instances of case law upholding the opinion.
Molé did not return requests for comment on the matter.
In his brief, Dunn argued that the charges, which allege “conduct unbecoming an employee, insubordination, misconduct, breach of the duty of loyalty and mismanagement,” do not have merit and have not been sustained, further asserting that Scuderi-Hunter “has done nothing to warrant a sanction of any kind.”
Dunn argued that the basic principles of his client’s job description are relevant to the case because “the County’s overarching theory is that the Commissioner of Social Services is under a duty to conform her opinions and decisions to those made by the County Attorney or the Director of Probation,” noting that the theory is “inconsistent with the statutory structure which vests the power and duty to make decisions concerning children in foster care with the Commissioner of Social Services.”
CONFLICT OF INTEREST
Dunn noted that the county attorney is the presumptive attorney representing the Department of Social Services and its commissioner, which is reflected in the position’s civil service job description.
“As the New York Rules of Professional Conduct make clear, it is the client, not the lawyer, who decides what the objectives should be in litigation of legal representation,” Dunn wrote. “Put a different way, the lawyer provides advice and options but the client makes the decision, which the lawyer is then obligated to carry out.”
Quoting from the cooperative agreement that governs the terms of the professional relationship between the county attorney and the Department of Social Services — and to which the county has repeatedly denied requests for access — Dunn pointed out that the county attorney is required to “advocate for the Department’s interests to the extent they do not conflict with the County Attorney’s primary statutory obligation as the presentment agency in Juvenile Delinquency or (Persons in Need of Services) cases.
When there is a conflict of interest in representation on these matters, the parties agree that the Department may procure other legal representation.”
Recalling the Oct. 21 testimony of Patrick Connors, a law professor at Albany Law School who specializes in professional ethics, Dunn noted that the Rules of Professional Conduct are intended to ensure that a client “receives competent representation from a lawyer who is using all available advocacy tools to advance the clients’ interests,” arguing that “if a lawyer is holding back or advancing a contrary interest, the client has been deprived of effective counsel.”
Throughout the nine-day hearing, Dunn elicited testimony from several witnesses who asserted that a conflict of interest arose for county attorney Amy Merklen during a family court proceeding regarding a Delaware County youth referred to as Child No. 2.
According to testimony from several witnesses familiar with the case, Child No. 2 was a runaway with a history of substance abuse. He was placed in foster care and therefore in the custody of the commissioner in April, when the family court proceedings relevant to the disciplinary charges against Scuderi-Hunter were initiated.
Because the child was on probation at the time of the proceedings, Scott Glueckert, director of the Delaware County Department of Probation, was present in the courtroom and advocated for the child’s placement in a secure detention facility. Scuderi-Hunter, at the recommendation of the Delaware County Department of Mental Health, campaigned for his placement in an inpatient rehabilitation facility.
Dunn argued that Merklen created a conflict of interest by representing both Glueckert and Scuderi-Hunter and their competing interests in the same court proceeding, a conflict considered non-consentable under the the Rules of Professional Conduct because “a lawyer cannot ethically cross-examine their own client.”
Victor Carrascoso, a Cooperstown-based attorney who was assigned to represent Child No. 2, testified at Scuderi-Hunter’s hearing that Merklen declined an offer to avoid cross-examining Scuderi-Hunter when she was called to testify to her recommendations for Child No. 2.
“The fact that cross-examination is needed to undercut your own client’s interests to advance the interests of another client demonstrates that the conflict is non-consentable,” Dunn explained. “It also meant that the County Attorney could not continue to represent either party because to advance one client’s interests would advocate against the other client’s interests.”
“The consequences of the County Attorney’s ethical breach were serious for both clients,” he continued. “Both clients feel betrayed because the County Attorney did not effectively advocate for their competing interests.”
Dunn also argued that many of the events cited in the charges against his client fell beyond the 18-month statute of limitations, noting that the only exception to the statute requires the county to both “allege and prove conduct which constitutes a crime.”
Under New York Civil Service Law, it is the burden of the employer to specifically plead and prove each charge, and in order to allege misconduct or insubordination, Dunn argued, and the county must “demonstrate intentional and willful disobedience” on the part of his client, or a “persistent unwillingness to accept the directives of (her) superiors.”
“A charge of insubordination is based on the incorrect premise that the Commissioner is obligated to obey the direction of the County Attorney or sublimate her position to conform to the position espoused by the County Attorney or Probation,” Dunn contended, noting that Merklen is not Scuderi-Hunter’s supervisor and has “no direction or control” over the commissioner.
“Here, the divergent views between Probation and Social Services are not improper,” Dunn wrote, noting the differing opinions are a “natural and expected outcome” in such a situation.
“By insisting on continuing to represent two clients with competing interests, the County Attorney created the false impression with Probation that the position of Social Services as a separate client should somehow be sublimated to the position of Probation, when in reality both positions have validity and it is for the Family Court, not the County Attorney, to resolve the differences.”
“Whatever friction or ill will which has resulted from the events at issue here was caused by the County Attorney’s mishandling of the legitimate and real conflict once it arose,” Dunn wrote.
‘DUTY OF LOYALTY’
TO THE COUNTY?
Merklen exacerbated the situation by criticizing Scuderi-Hunter’s conduct in a letter, insisting that the commissioner owed her a “duty of loyalty,” according to Dunn.
“The County Attorney has that exactly backwards,” he argued. “The lawyer always owes the client a duty of loyalty. If the lawyer cannot advocate for the client, they must get out of representation.”
Scuderi-Hunter came under fire by the county for taking the stand in the family court proceeding for Child No. 2 after Carrascoso called her to testify to her professional recommendations for the child, actions which Merklen described as “advancing a position contrary to that of … the County” in a June 11 letter to the commissioner.
Citing several instances of case law, Dunn argued that “voluntarily appearing as a witness in a public proceeding or a lawsuit is a kind of speech that is protected by the First Amendment,” and a public officer “does not, by reason of his public employment, lose his civic right to give evidence.” Instead, Dunn contended that courts “encourage uninhibited testimony, under penalty of perjury, in an attempt to arrive at the truth.”
Based on the facts presented and the established law, Dunn argued that Scuderi-Hunter’s testimony in the family court proceeding “cannot possibly form the basis of a discipline claim.”
“Whether Commissioner Scuderi-Hunter has a separate claim against the County that the County violated her constitutional rights by even bringing a discipline charge challenging that testimony is a matter to be resolved in a different forum,” he wrote.
Addressing the charge that Scuderi-Hunter breached a duty of loyalty to the county, Dunn asserted that an employer must demonstrate that an employee “advanced their own interests in competition with the employer using the employer’s resources to the detriment of the employer” and “acted directly against the employer’s interests — as in embezzlement, improperly competing with the current employer, or usurping business opportunities.”
“Here there is no allegation that the Commissioner is somehow competing with the County, starting her own business, advancing her own interests or in any way using the resources of the County to advance her interests,” Dunn wrote. “Nor are there any allegations that the Commissioner stole or embezzled funds.”
To contrast the claim that his client mismanaged her department, Dunn included in his brief excerpts from sworn affidavits submitted by 22 social services employees “extolling the Commissioner’s supportive and empowering management style,” along with quoted testimony from eight additional witnesses called to the stand during the hearing who attested to Scuderi-Hunter’s professionalism.
“This overwhelming proof of respectful, constructive and effective management style from actual witnesses with names and examples is in sharp contrast to the unnamed, unexamined and unsubstantiated testimony of Molé, Eisel and Pinner claiming that they heard that the Commissioner’s management style is somehow disrespectful or dictatorial.”
Dunn contended that a number of the charges claimed that his client’s actions violated policies that were proven not to exist, including a requirement to attend meetings organized by other department heads, adhering to a countywide policy for handling blood-borne pathogens and consulting with the personnel office on employee matters.
“No such rule exists, and the County points to no such rule,” Dunn wrote of the latter.
Sarah Eames, staff writer, can be reached at firstname.lastname@example.org or 607-441-7213. Follow her @DS_SarahE on Twitter.