An attorney for former Delaware County Social Services Commissioner Dana Scuderi-Hunter filed a lawsuit last week against Delaware County, its board of supervisors and board chair Tina Molé, asserting that the decision to terminate her was “arbitrary, capricious, affected by error of law, an abuse of discretion and not supported by substantial evidence.”
Following a nine-day civil service disciplinary hearing and at the recommendation of the hearing officer, the board of supervisors voted to fire Scuderi-Hunter at its Dec. 11 meeting, less than a month before the expiration of her five-year term.
“This is part of our comprehensive start to make things right for Dana, to make her whole,” said Ron Dunn, the Albany-based attorney who represented Scuderi-Hunter throughout the proceedings. “She has been damaged seriously by a completely improper and unfounded process.”
The case alleges that the former commissioner was wrongfully terminated “for acts and decisions Scuderi-Hunter properly took as an exercise of her professional judgment in her statutory and fiduciary role as Commissioner of Social Services,” according to Dunn, who will continue to represent Scuderi-Hunter throughout the appeals process.
CONFLICT OF INTEREST?
Dunn argued that Delaware County Attorney Amy Merklen engaged in an “unconsentable” conflict of interest during a May 2019 family court proceeding by claiming to represent both probation and social services, the chiefs of which proffered conflictual opinions as to the treatment and containment of a minor referred to throughout the hearing as Child No. 2.
“A lawyer cannot ethically cross-examine her own client in order to undercut that client’s interests and advance a separate client’s interests,” Dunn wrote, adding that “the lawyer has an ethical obligation to investigate the facts in advance to identify potential conflicts and address those conflicts as soon as they are identified.”
In his written decision on the disciplinary proceedings, Alfred Riccio, the Clifton Park-based arbitrator appointed by the board of supervisors to preside over the hearing, made no reference to testimony by Patrick Connors, a law professor at Albany Law School, who contended that Merklen’s simultaneous representation of the social services and probation departments in the same proceeding constituted a conflict of interest under New York Rules of Professional Conduct.
“If you can’t agree with your client, you tell them to go get another lawyer,” Dunn said.
The lawsuit contends that Molé’s “bias, prejudgment and involvement” in the matter deprived Scuderi-Hunter of a fair hearing, arguing that as a witness, Molé failed to “disqualify herself from participating in the decision-making process of the Board” by advocating for the former commissioner’s removal in communications with the board before the vote and by failing to abstain from the vote itself.
Dunn argued that as a decision-maker, Molé played a central role in the events alleged in the charges, including co-authoring a June 2019 letter “admonishing Scuderi-Hunter for her truthful testimony” in a family court proceeding for Child No. 2; the initial suspension of Scuderi-Hunter, signing the charges, testifying at the hearing in support of the charges, and “improperly participating in the process” that led the board to adopt the hearing officer’s decision.
Dunn further argued that Molé “actively worked to influence the Board” to terminate Scuderi-Hunter, in part by limiting access to the hearing documents, which were available in the county personnel office during regular business hours and by appointment only.
“The record is massive,” Dunn said; containing a nearly 2,400-page hearing transcript, more than 50 exhibits and 22 affidavits. “It would take many hours to even skim.”
County Personnel Officer Linda Pinner said “all of the supervisors signed and reviewed (the documents) prior to the determination.”
Riccio issued his decision and recommendation to fire Scuderi-Hunter Dec. 6, just six days after the attorneys’ final briefs were submitted. Assuming that the hearing materials were made public that day, Dunn argued, the supervisors would have had just five days to review the transcripts, exhibits and briefs before voting on the matter at the Dec. 11 meeting.
By relying primarily on the hearing officer’s decision and Molé’s account of the hearing, Dunn argued that the board would have been unaware that the case “was turning on an ethics question” involving Merklen’s conflict of interest.
“They all had access to the letter (condemning Scuderi-Hunter’s actions in family court), but no real access to the reason why that’s unethical,” he said.
Molé was unavailable for comment Monday.
ATTORNEY: ARBITRATOR IGNORED KEY TESTIMONY
The lawsuit contends that the hearing officer’s decision was “inadequate” in that he did not cite or discuss any of the testimony by 11 of the 14 witnesses for the defense, including two legal experts and seven social services employees, as well as affidavits of 22 employees “extolling the management style and inspirational leadership of Scuderi-Hunter.”
Riccio also omitted from his decision any reference to documents from a 2014 family court proceeding, confirming Scuderi-Hunter’s account that the judge ordered, in line with her recommendation, a second medical opinion for Child No. 4. The county argued that Scuderi-Hunter delayed the initial approval of a prescription psychotropic drug so she could obtain a second opinion for Child No. 4 — who was five years old at the time and already prescribed two other drugs, according to Dunn — constituting an act of criminal child neglect.
The lawsuit contends that the hearing officer failed to address claims by the defense that many of the charges were too vague and improperly allowed the county to bring charges based on events that occurred well beyond the 18-month statute of limitations.
Scuderi-Hunter and her attorney further allege that some of the hearing officer’s references to testimony were “demonstrably wrong,” despite his being afforded several weeks to review the 2,390-page hearing transcript.
While the hearing officer found the record to show that the first time Scuderi-Hunter raised the issue of an “unconsentable conflict” was in a June 2019 letter to members of the Social Services Committee, Dunn argued that the record actually established that Scuderi-Hunter raised the issue during her cross-examination by Merklen in a May 2019 family court hearing for Child No. 2, in which she testified: “I thought you were my attorney, too.”
The case will be presided over by Supreme Court Judge John F. Lambert beginning Sept. 18 in Delaware County Supreme Court. A separate lawsuit is in the works in federal court that would bring “much broader relief,” according to Dunn.
Scuderi-Hunter is seeking the annulment of her termination, her reinstatement as social services commissioner with full back pay and prejudgment interest, as well as assigning legal expenses to the county.
TALLYING THE COSTS
Scuderi-Hunter’s five-month suspension and the ensuing nine-day disciplinary hearing that resulted in her termination cost Delaware County taxpayers $145,934.60, more than one and a half times Scuderi-Hunter’s annual salary during her final year as commissioner.
Delaware County spent $74,500 on the hearing alone, according to documents obtained under New York’s Freedom of Information Law. Wayne Marshfield, Hamden Town Supervisor and chair of the Social Services Committee, told The Daily Star that the department of social services was directed by the county to foot the bill but refused.
Molé said in February that the county expected to spend $80,000 on the entire hearing. Asked if the expenses were justified, especially given the expiration of Scuderi-Hunter’s term less than four weeks after she was fired, Molé replied: “Absolutely.”
In 2019, $80,000 represented twice the county’s budget for maintenance and repair services for public works machinery.
Invoices obtained from the county indicate that Frank Miller, the Syracuse-based attorney contracted to represent the county in the disciplinary proceedings, billed the county $35,816.32 for his services throughout the disciplinary process, from July when Scuderi-Hunter was placed on paid administrative leave until December, when the board of supervisors voted to formally terminate her employment.
Miller’s bills were paid out of the legal services line under the personnel office’s budget, which did not exist until 2020. Asked if the budget line was created specifically to fund the hearing, county budget officer and Colchester Town Supervisor Art Merrill said he “didn’t recall.”
Delaware County Board of Supervisors Clerk Christa Schafer, who also serves as director of fiscal affairs, said creating the line was merely a formality; that funds for legal expenses had always existed in the personnel budget but were never utilized.
Riccio billed the county $11,614.26 for nine days in session and five and a half days of outside work for his services as hearing officer, plus $991.80 in travel expenses for 1,710 miles.
At $6.75 per page, Veritext Legal Solutions billed the county $21,194.08 for court reporting services provided throughout the entirety of the hearing, as well as print and electronic copies of the 2,833-page hearing transcript.
Former Lewis County attorney Richard Graham, who took the stand twice as an expert witness for Delaware County, billed the county $5,875 for his services as a legal expert.
In productivity costs, calculated by the hours of work missed by each county employee to attend the nine-day hearing and for which they were still paid, Delaware County spent more than $7,000.
Molé and Pinner, who were both present for the entirety of the hearing, cost the county a combined $4,151.07. Eight other county employees who testified for the county on paid county time were Merklen, James Eisel, Angela Barnes, Scott Glueckert, Tina Presley, Amanda Walsh, Cynthia Heaney, Stacey Green and Tatiana Amadon.
Scuderi-Hunter was paid $64,416.14 for the 174 days from the time she was suspended to the day the board voted to fire her.
Sarah Eames, staff writer, can be reached at firstname.lastname@example.org or 607-441-7213. Follow her @DS_SarahE on Twitter.