After nine days of testimony and a steadily increasing bill to taxpayers, the disciplinary hearing for suspended Delaware County Department of Social Services (DSS) Commissioner Dana Scuderi- Hunter has concluded, with no clear timetable for resolution.
Both attorney Frank Miller, representing Delaware County and Ronald Dunn, representing Scuderi-Hunter, will have until November 20 to submit their closing briefs to Hearing Officer Alfred Riccio. Riccio will then be tasked with making a recommendation for the Delaware County Board of Supervisors (BOS). The BOS will have the final decision on what action should be taken in regard to Scuderi-Hunter, who has been suspended with pay since early July.
Miller has said the BOS will be provided with a full transcript and records from the hearing, and that he and Personnel Officer Linda Pinner will be available to answer supervisors’ questions.
The final three days of testimony were contentious, revelatory, and largely challenged much of the testimony heard previously. Miller and Dunn’s interactions continued to be feisty, with each man challenging the other at every turn. As the hearing went on, Riccio seemed prone to overrule most objections, choosing to allow evidence and testimony in the record, rather than excluding it.
The first witness for the defense on day seven, Monday, Oct 21 was Dr. John Imhof, who served as Commissioner of Social Services in Nassau County for 13 years. Imhof testified to the “far ranging” responsibilities of a DSS Commissioner and the goal to place children in his custody in the “least restrictive environment.” Imhof described the process of placing a child in the least restrictive environment as a collaborative process between DSS, New York State and Family Court. He described secure detention, a recurring topic in this hearing, as a “jail without bars.”
Imhof testified that when a DSS Commissioner makes a recommendation in family court, that the commissioner must “Be forceful in that recommendation.” He noted that a County Attorney who works with DSS can be a part of the process but said, “The final recommendation has to be, and this is according to NYS Social Services law, has to be that of the commissioner.”
If the child in question is in DSS custody and there is a difference of opinion amongst those in the county, Imhof testified that, “It’s the commissioner’s final call.” He added that a DSS Commissioner can not be ordered to change a decision. On cross-examination, Imhof acknowledged that he had never testified, as Scuderi-Hunter had, in a juvenile delinquent proceeding.
22 DSS Staffers support commissioner
Before calling his next witness, Dunn introduced an affidavit into evidence that had statements supporting Scuderi- Hunter from 22 DSS employees. Because several prosecution witnesses had been called to criticize the Commissioners work, Dunn had planned to call a significant number of others to refute the earlier testimony. Instead, Dunn offered the affidavit to “avoid the ordeal of testimony” and streamline the hearing process, which had been discussed previously. After reading the statements, Riccio allowed the affidavit into evidence.
Attorneys for child accuse Merklen of conflicts
After the affidavit was received, Lee Hartjen and Victor Carrascoso were the next two witnesses called to testify. Both men served as attorneys for Child No. 2. Hartjen testified that he “was surprised” to see Scuderi- Hunter during a hearing for Child No. 2
He testified that Merklen said, “This kid was dangerous” and that she wanted to “Wash my hands of it” and “throw away the key.” Hartjen’s testimony indicated that Merklen was advocating for the child to be placed in detention for a period longer than is prohibited, saying, “There’s no such thing as detention for a year. She was confusing the programs. It’s not something that’s allowable.”
During cross-examination, Hartjen testified that Merklen made it clear she was representing Probation and not DSS, but still felt there was a problem.
“I know that a person can’t be representing two clients and that was what was happening in that court room,” Hartjen said in response to one of Miller’s questions.
Carrascoso also subscribed to the view that Merklen had a clear conflict of interest, saying, “It seemed that there was a major conflict of interest with the county attorney… certainly she was preferring the Department of Probation’s view. I thought how do you do that when you have a client that’s telling you something entirely different?”
Carrascoso also testified that he suggested Scuderi-Hunter’s opinion and testimony be taken as an offer of proof so as to avoid Merklen having to cross-examine her. Merklen refused, he testified.
Expert witness says Merklen conflicted
Dunn saved the ace up his sleeve for his final witness on the seventh day, calling law professor and legal ethics expert Patrick Connors. Connors cited the New York Rules of Professional Conduct, particularly rule 1.7 that addresses representing two clients simultaneously. Connors provided examples of clear conflicts for a lawyer representing two clients, such as a husband and wife getting divorced, and the buyer and seller of a piece of property. Connors talked about a lawyer’s “duty of communication” to inform one’s client of “significant developments.”
“The lawyer has got to give the client enough information so the client can make a reasonably informed decision,” Connors said.
Connors also talked about how some conflicts are “not consentable.” Connors said consent is possible when a lawyer can reasonably provide “competent” representation to each client. Connors testified that a government attorney would need to have “a system set up” to investigate when conflicts might arise.
Dunn then laid out a set of hypotheticals that mirrored the case involving Youth No. 2 and asked whether Merklen had a conflict of interest.
“There would be a 1.7 conflict for the count attorney to be representing the Probation Department that is seeking to confine the child without treatment and simultaneously representing the DSS who wants a different outcome based on their duty as the statutory parent…a lawyer could not simultaneously serve both clients under those facts,” Connors said.
Connors testified that when a difference of opinions was established between the DSS and Probation, and when Merklen became aware that Scuderi-Hunter was to be called as a witness, “In that situation the county attorney probably has to withdraw from both representations.”
He added, “The lawyer can’t simultaneously represent a client when one if its other clients wants a significantly different outcome.”
Miller says no conflict until court hearing
On cross-examination, Miller tried to lay out the argument that there was no conflict until both parties were in court, and that Merklen couldn’t have known about the conflict prior.
Connors refuted it. “The lawyer representing these two clients has a duty to inquire about the position of its other client,” Connors said. Miller tried to highlight that DSS was not a party to the proceeding, and that not every county department needed to be investigated for differing opinions before such a hearing. Connors agreed that not every department needed to be vetted but said, “If it’s a proceeding against a JD [juvenile delinquent] DSS is a necessity in the matter.”
Connors testified that DSS arguing for an alternative placement for Child No. 2 represented enough of a conflict for Merklen as to show “actual prejudice.” When asked about the agreement made between Scuderi-Hunter and Glueckert in front of the judge, Connors testified that it was an example of a “non consentable” agreement, saying that it is not uncommon for a judge to approve a conflict which is later overruled on appeal.
When asked by Miller, Connors said he was being paid a total of $3,000 by the defense for his services, including his testimony. Riccio, the hearing officer, is being paid $750 per day by Delaware County.
Scuderi-Hunter takes stand
The defense’s final witness was the respondent herself, Dana Scuderi-Hunter, whose testimony filled the entire eighth day of the hearing on Tuesday, Oct. 22. Scuderi- Hunter testified that her duties as DSS Commissioner were “extremely broad” and include overseeing 104 employees and managing a budget of around $29 million.
“Ultimately, I am responsible for every decision every person who works for me makes,” Scuderi-Hunter said.
When asked about providing services for children in her custody, Scuderi-Hunter said she considers her “entire staff as a team” and said “It’s a collaborative process.”
“I have an open door policy,” she said.
Disagreement about medicine prescribed
Dunn then asked his client about Child No. 4 who was in the custody of the commissioner. Scuderi-Hunter has been accused of withholding the issuance of medicine for Child No. 4. Scuderi-Hunter testified that Child No. 4 had been recommended to receive cognitive behavioral therapy, which the child did receive in 2015. In early 2016, Merklen had informed Scuderi-Hunter that the child’s attorney had filed a motion claiming Scuderi- Hunter was not following through on the medicine that was prescribed to the child. Scuderi-Hunter claimed that the drug in question was the third to be prescribed to Child No. 4. She testified that before approving the prescription, she wanted the doctor to talk with the cognitive behavioral therapist to ensure that the child’s treatment was cohesive.
Scuderi-Hunter testified that she had prepared an affidavit previously submitted into evidence that denied any failures of responsibility claimed by the attorney for Child No. 4. While such affidavits are typically written by the accused’s lawyer—in this case Merklen—Scuderi- Hunter said, “It was clear to me that the county attorney wasn’t going to do anything to protect the department [DSS].”
She added, “I was doing it so the court and the attorney for the child were assured that the department was doing everything we could in the best interest of Child No. 4.” Ultimately, the judge in that hearing ruled that the two professionals should consult with each other before the medicine in question was administered.
Complaints about Merklen
Dunn then asked his client a series of questions that dealt with concerns from the DSS about County Attorney Amy Merklen. Scuderi- Hunter testified that DSS employees had heard Merklen making what they felt were inappropriate comments following an unspecified legal proceeding involving youth.
“I received complaints from my casework staff regarding her; the County Attorney at the court house making statements like, ‘Over my dead body will this child go back to the mother. We’ve done this three times; this child should not go back to the parent.’ and ‘I’ll pull the race card before this child goes back to his parent.’”
Scuderi-Hunter said a meeting occurred in early September where she voiced her concerns to Merklen, which she described as a “respectful conversation.” Scuderi-Hunter testified that she asked Merklen to not use such language in front of DSS employees, saying “It’s uncomfortable to staff.” She also testified that she told Merklen that her duty was to present the position of DSS and “not influence case decision.”
Scuderi-Hunter relayed another instance when she received a call from a senior staff member who was crying because they were “uncomfortable in a legal meeting.”
“Merklen was flailing her hands saying what’s wrong with you people this child should be in foster care,” Scuderi-Hunter said of the episode. Scuderi- Hunter also said there were instances when Merklen would “impose her own personal view on the work my team was doing and it is not her place.”
Scuderi-Hunter also contested the previous testimony of Merklen, Harpersfield Supervisor and former BOS Chair James Eisel, current BOS Chair and Bovina Supervisor Tina Mole’, and Personnel Officer Linda Pinner, who all testified that the respondent received multiple counseling sessions to address her “management style” and overall performance. Scuderi- Hunter claimed those meetings were never officially designated as counseling sessions and said she never received a counseling memorandum for any meeting.
The defense addressed the claim that Scuderi-Hunter had inappropriately sought outside legal counsel. That matter involved a county resident who was billed by the DSS after that resident had filed for bankruptcy and who ultimately sued the DSS. Scuderi-Hunter testified that Merklen had been made aware of the lawsuit but failed to inform the DSS. DSS received a bill from Frank Miller’s office, and when Scuderi-Hunter tried and failed to contact Merklen, she contacted Frank Miller’s office, the outside attorney in question. According to Scuderi-Hunter, Miller said, “I thought she [Merklen] would have shared this with you.”
The defense also addressed accusations that Scuderi- Hunter had improperly handled an instance of a DSS employee drinking on the job. “I managed the situation. I was trying to ensure all the staff felt safe,” Scuderi-Hunter said. Addressing claims that she didn’t contact the Personnel Department in a timely manner, the commissioner said she didn’t need immediate guidance from the department, saying she was responsible and able to handle such personnel issues. Scuderi- Hunter testified that she did not punish the employee as the employee voluntarily requested a demotion on their own.
Much of the respondent’s testimony centered around events dealing with Child No.1 and Child No. 2. Angela Barnes, who testified previously in this hearing for the county, was the caseworker for both children. The two children, allegedly cousins, were the first two children to be placed in secure detention in Delaware County since 2002, according to testimony.
Child No. 2
Child No. 2 was placed into Scuderi-Hunter’s custody in October 2018 and was ordered into secure detention on April 23 after a “culmination of events.” Delaware County Drug and Alcohol Abuse Services recommended that Child No. 2 should receive treatment for substance abuse, Scuderi- Hunter testified. Treatment was delayed and Scuderi-Hunter appeared in court for the child on May 31, 2019, testifying that “I was concerned that the child in my custody was going to linger in detention.”
During a break in that May court hearing, Scuderi-Hunter was approached by one of the child’s attorneys, Victor Carrascoso.
“Do you think he needs treatment,” Scuderi-Hunter testified Carrascoso asked her. “I said, ‘Absolutely yes,’” Scuderi-Hunter said in testimony. She also testified that Carrascoso asked if there was a foster home available for the child, to which Scuderi- Hunter said yes.
Scuderi-Hunter said Merklen later confronted her in the courthouse, reiterating that the Probation Department was the presentment agency and was advocating for a different outcome. “You shouldn’t let her bully you like that,” Scuderi- Hunter said Carrascoso told her, to which she replied, “I don’t let anyone bully me.”
Merklen cross examined Commissioner
As the Child No. 2 case continued, Carrascoso called Scuderi-Hunter to the stand in that hearing and Scuderi- Hunter confirmed the recommendation that the child should receive substance abuse treatment. Merklen crossexamined Scuderi-Hunter in family court, causing Scuderi- Hunter to say to Merklen, “I thought you were my attorney too.”
The judge ruled with the child and said the child should be placed in a foster home with 24-hour supervision and an ankle monitor. Scuderi- Hunter contradicted previous testimony about the ankle monitor, saying she didn’t recommend the ankle monitor, but said the idea was that of the family court judge. Scuderi- Hunter testified that she did not speak with either of the child’s attorneys at subsequent court appearances.
Child No. 1
Scuderi-Hunter’s testimony on Child No. 1 centered largely on former DSS Caseworker Angela Barnes’ involvement with the youth. Barnes transported a child to the Probation Department in May of 2019 for a drug test and it was there the child assaulted Probation Director Scott Glueckert. Barnes testified that Scuderi-Hunter yelled at and belittled her in a phone conversation the two had while Barnes was at Probation, and later had to take a medical leave due to what she described as stress caused by Scuderi- Hunter.
Scuderi-Hunter testified that she did not yell at or demean Barnes, and said she believed Glueckert heard them talking because the volume on the phone had been turned up. Regarding Barnes being removed from the case, Scuderi-Hunter said, “Angela requested to be removed but the decision was made by her superiors and her.” When asked, Scuderi-Hunter also stated that no official grievances, whether through the DSS union or the county, were ever filed against her.
Scuderi-Hunter did recall one testy exchange with Barnes when a group discussion was being held to come up with alternative services for children. Scuderi-Hunter testified that Barnes made a joke about Child No. 1 going to detention to see his cousin, to which the commissioner replied, “You helped make that happen,” adding on the stand, “I didn’t think it was funny that kids were in detention” and “I felt bad that I said that.”
Heated cross examination
Miller’s cross-examination was lengthy and at times heated, and began with Scuderi-Hunter admitting she only returned her ID badge and a Surface Pro laptop on Monday, Oct 21, the day before her testimony. Miller also asked about her testimony about Child No. 1, and when pressed, Scuderi-Hunter testified that both Barnes and Glueckert had lied about their recounting of events.
Regarding her testimony on behalf of Child No. 2, the commissioner acknowledged that it was the first time she had testified in a juvenile delinquent hearing. It was agreed that in that proceeding, a conversation had taken place in front of the judge where both Glueckert and Scuderi-Hunter agreed that Merklen was representing both parties. Scuderi-Hunter also testified that she had not told Merklen that she objected to the child being put in secure detention prior to the court day. When asked if she received permission from Merklen to talk to Carrascoso, she said, “No, I didn’t need it.”
Scuderi-Hunter also denied that she ever instructed her staff to not speak or cooperate with any other county department, as Merklen has testified. Miller also spent considerable time questioning the respondent on a letter sent to Scuderi-Hunter by Merklen and Mole’ and a letter in response by Scuderi-Hunter. Miller consistently asked Scuderi-Hunter to point out what was insulting in the letter directed at her, and pointed out when she failed to rebut that insult in her own response letter.
“It was threatening, it was slanderous,” Scuderi-Hunter said of the letter from Merklen and Mole’.
It was during these questions that Miller slipped and said the first name of Child No. 2, the fifth such slip by the county, with the previous four coming from Merklen during her testimony. When Miller pressed Scuderi- Hunter to acknowledge she had been counseled, he asked about a June 2019 meeting, with Scuderi-Hunter saying, “With respect, I think it was a setup.”
In a July 9 meeting, Scuderi- Hunter said she was presented with an offer of resignation and noted that in the meeting, Miller called, “a very generous offer.”
When Miller asked what medical opinion Scuderi- Hunter had to withhold medicine for Child No. 4, she said, “I didn’t have one.”
Tense exhanges; shut down explanations
The exchanges between Miller and Scuderi-Hunter were tense, with the former largely insisting on yes or no answers and the respondent often wanting to elaborate in her answers. Toward the end of his questions, Miller brought up a matter from 2004 when Scuderi-Hunter was laid off from her job as a Project Management Assistant and applied for unemployment benefits.
The matter was taken up on appeal to the appellate division in Albany in front of a panel of five justices who ruled that Scuderi-Hunter had to pay back $3,900. The justices found that Scuderi-Hunter’s failure to disclose a job offer meant, “She made willful false statements to obtain benefits” according to a report by the appellate division.
On redirect, Scuderi-Hunter testified that she was living with her father who had cancer during this period, and said, “I don’t believe my father ever gave me the message,” of the job offer, adding, “This was a misunderstanding.”
Day 9, final day
Before testimony began on the final day, Miller stated the county had modified its position relative to the testimony of Johanna Bogoni which it had previously moved to have stricken from the record. Miller did not contest that Bogoni’s testimony should be allowed in the record, but contended the context of the witness was improper as she had been present for the first two days of the hearing. Miller said he felt that Bogoni’s testimony was therefore “tainted.” Dunn strongly disagreed with Miller and stated he no longer planned to have two additional witnesses testify who he believed would corroborate Bogoni’s testimony.
When the admittance of Bogoni’s testimony was settled, Dunn stated, “The defense rests.” Miller then called his first of three rebuttal witnesses, Linda Pinner.
Referencing the affidavit signed by 22 DSS employees, Pinner said she believed all those who signed it worked at 111 Main Street. DSS employees work in two locations, 111 Main Street and 99 Main Street. Pinner said, “Of the people that I spoke to, all but one are assigned at 99 Main Street.” During crossexamination, Dunn’s questions appeared to imply at least two or three names on the list split time between the two locations.
The county called its own legal expert Richard Graham back to the stand as its second rebuttal witness in an effort to rebuke Connors’ testimony. Graham pointed to section 1.13 in the Rules of Professional Conduct which state when an employee’s actions run contrary to that or the organization, a lawyer’s first loyalty is to the organization, not the employee.
“Under these rules, and these statutes, there is no conflict of interest,” Graham said.
Through questions in crossexamination, Dunn argued that 1.13 didn’t apply to the case involving Scuderi-Hunter and Merklen. He also compared the expertise of Graham with that of Connors, pointing out that Graham had not written any articles on professional responsibility and legal ethics, had not taught law to law students, nor did he help draft the official code as Connors had done.
The final rebuttal witness was DSS Director of Services Tatiana Amadon whose name had come up numerous times throughout the hearing. Dunn objected to Amadon being called as a rebuttal witness as he had requested Amadon to be produced previously. She was allowed to testify, and talked about a particular instance in which she recalled Scuderi- Hunter yelling at her over an email she had sent out.
“She definitely was very upset. I feel like her voice was heightened. Her lips seemed to curl a little bit which is indicative to me when Dana is upset and I felt like I was being yelled at,” Amadon said. Amadon testified about another incident years earlier where she claimed Scuderi-Hunter was yelling at another employee “to the point where I felt it was necessary to intervene.” Amadon didn’t remember many details from the conversation however, including the topic and who else was present.
Amadon also testified that she saw and heard Scuderi- Hunter have a conversation with the two attorneys from Child No. 2, saying, “It sounded like strategizing about the case.” Both lawyers for Child No. 2 and Scuderi- Hunter herself testified that no such detailed conversation had taken place and there was considerable doubt about whether Carrascoso was even at the court date at which Amadon says she witnessed the conversation.
When the witness left the stand, several reporters followed Amadon to the lobby where they began an interview. Notably, Mole’ followed the reporters and said to Amadon, “You don’t have to speak with them.” Amadon was clearly conflicted, as she had been speaking to reporters before that moment, but said little after. Whether Mole’ was helping to defend Amadon’s right not to speak to the press, or engaging in intimidation, as Mole’ has been accused of doing by several DSS employees, is anyone’s guess.
After Amadon’s testimony, it was decided that each lawyer would send in a brief in lieu of closing arguments. Riccio expected that transcripts would be sent to both parties by November 8 and therefore briefs would be sent to him no later than November 20. “It is tight but we are in a tight situation,” Riccio said of the deadline.
“Thank you gentleman for a vigorous hearing, you both represented your clients very well,” Riccio said to both lawyers.
Speaking to the media following the hearing, Miller explained the length of the proceeding, saying, “This case had a lot more evidence, a lot more charges.” He added, “I expected a dog fight and we got one.”
Miller explained that while it was ultimately the Board of Supervisors who hired Riccio as the Hearing Officer (for $750 per day of service), it was he who had recommended Riccio. Miller described Riccio as “very experienced, qualified,” and “extremely competent.” When asked if he had ever lost a proceeding in which Riccio presided, Miller couldn’t remember but said he didn’t always agree with his rulings.
When Pinner was asked if she thought this hearing set a bad precedent for county employees and their relations with their superiors, she said, “Time will tell.” Miller was also asked about former DSS Commissioner William Moon and why he didn’t testify. Though he had talked with Moon, Miller said, “Not all of those sources turn out to be reliable. Not all of those sources really know what they’re talking about.”
Dunn was happy with the way the hearing went, feeling the defense successfully refuted each of the seven charges. “The truth comes out. We had a lot of very brave witnesses who came and testified,” he said. Speaking about his client, he said, “She has good reason to be proud of her work and she has done absolutely nothing wrong.”
Dunn felt some of the most important moments were the testimony of Bogoni, which he called, “Very truthful and fabulous” and that of Connors, saying he “Gave a master class in the professional rules of ethics.” Dunn doesn’t see the process as being over, but said if this were a 26-mile marathon, he and Scuderi-Hunter were around the 10-mile marker. He noted it was his first experience working with Riccio.
Scuderi-Hunter also defended herself, saying, “I have served honorably and I’m still very, very proud. I would do exactly the same thing.” When asked if she would be willing to continue to serve as the Delaware County DSS Commissioner if cleared of the charges, she said, “Absolutely I would.”