DELHI — Testimony elicited Monday by Ronald Dunn, the defense attorney representing Delaware County Commissioner of Social Services Dana Scuderi-Hunter in disciplinary proceedings against her, focused primarily on a purported conflict of interest by county attorney Amy Merklen in her prosecution of a juvenile delinquency case against a youth referred to only as Child No. 2.
Dunn contended the alleged conflict was the centerpiece of the dispute between his client and the county and the impetus for many of the disciplinary charges brought against her.
While Merklen represented the department of probation, which was the petitioning agency in the case regarding Child No. 2 and had requested his placement in a secure detention facility, Scuderi-Hunter was also involved in the proceedings as the custodial party and recommended his admission into an inpatient drug and alcohol rehabilitation program.
When prosecutor Frank Miller claimed Merklen was unaware of the departments’ opposing recommendations until they were addressed in court, Dunn cited a June 11 letter from Merklen to Scuderi-Hunter criticizing the commissioner for advancing a position contrary to that of the county “on or about May 31.”
“At that time, I advised you that you needed to step away from the juvenile delinquency proceedings as this was a petition brought by the Department of Probation and my office, as the statutory presentment agency,” Merklen wrote. “After advising you of this, you were called to the stand by respondent’s counsel and further advanced your position against the Department of Probation and as such, the County.”
Dunn called to the stand Patrick Connors, a law professor at Albany Law School who specializes in professional ethics, which he defined as “rules that govern a lawyer’s conduct.”
“It appears to me from the hypothetical that the county attorney would have to get out of the matter,” Connors testified. “They can’t take a position on behalf of one client that’s adverse to the desires of another current client.”
In the event one client may be called as a witness, “the county attorney probably has to withdraw from both representations” because they’ve learned some “significant, substantial confidential information,” Connors said.
Citing the New York Rules of Professional Conduct, an official publication by the New York State Bar Association, Connors confirmed a conflict would result if the social services commissioner sought a different outcome based on her statutory obligation to act in a parental capacity.
When asked by Dunn if the rules would apply to a government attorney, Connors responded that “the rules apply to attorneys wherever they are.”
“The language is not geared towards party; it’s geared towards a client,” Connors said. “So the lawyer owes an obligation to the client, regardless of whether the client is a party to a particular lawsuit or not a party.”
Attorneys Lee Hartjen and Victor Carrascoso, who testified they were assigned by the court to represent Child No. 2 in the juvenile delinquency proceedings, also contended Merklen exhibited a clear conflict of interest in the matter.
“The county attorney is representing two different interests in that courtroom,” said Hartjen, who is based in Cobleskill. “And that obviously is unethical by any standard, period.”
“It was obvious that two people who have been reported to be represented by the county attorney had drastically different viewpoints that day in court, and that one was shut down by the county attorney and one was advocated,” he continued. “I don’t know who she was representing, but it wasn’t the commissioner.”
Hartjen testified that Merklen said in court that Child No. 2 “was dangerous and she wanted to lock him up in detention for a year and — now I can’t remember; I keep playing it in my mind — ‘wash my hands of it’ or ‘throw away the key.’”
The judge seemed in favor of placing the youth in an inpatient rehabilitation program, Hartjen said, but at the time, there was no bed available at the recommended treatment facility.
“Are you saying the judge remanded the child to detention because he wasn’t sure what was available to treat the kid?” Miller asked during cross-examination.
“I hope not, because that would not be legal,” Hartjen responded.
Carrascoso, who is based in Cooperstown, said he was assigned to represent Child No. 2 in a custody matter between his parents two years before the juvenile delinquency proceedings.
He testified that he may have been the one to suggest, as an alternative to a secure detention placement, fitting the youth with an ankle monitor, contrasting the county’s claim and charge that Scuderi-Hunter did so without permission or authority from the probation department, which administers the county’s ankle monitor program.
Carrascoso said Merklen declined an offer to avoid cross-examining Scuderi-Hunter, her client, when she was called to testify to her recommendations for Child No. 2.
On the stand, Carrascoso said, “the commissioner repeatedly said ‘I thought you were my attorney?’”
John Imhof, who served as Nassau County social services commissioner for 13 years until his retirement in May, testified that he is a board member and former president of the New York Public Welfare Association, which hosts monthly meetings for each of the 59 social services commissioners in New York state.
Imhof said the position’s five-year term is expressly outlined in New York Social Services Law and understood as a means to prevent any potential interference with the commissioner’s decisions by those who may have differing opinions.
Riccio accepted as evidence a compilation of written statements provided by 22 current employees of the social services department, which Dunn offered in an effort to streamline the hearing proceedings. If the employees were called to the stand, Dunn said, they would testify consistent with their statements.
Scuderi-Hunter is expected to be the sole witness called to the stand in Tuesday’s proceedings, which are scheduled to begin at 9 a.m. at the Delaware County Public Safety Building in Delhi.
Dunn said he may call one additional witness, and Miller reserved his right to call rebuttal witnesses.
Sarah Eames, staff writer, can be reached at email@example.com or 607-441-7213. Follow her @DS_SarahE on Twitter.