PHOENIX — A judge has rebuffed a constitutional challenge to an Arizona law that allows directors of state agencies to disregard conclusions of independent hearing officers.
Maricopa County Superior Court Judge Douglas Gerlach rejected claims that Greg McKay, then director of the Department of Child Safety, acted improperly when he concluded that a worker at a group home was guilty of child abuse for rough handling of a child. The caregiver was accused of placing his forearm against the neck of a 13-year-old boy to the point where the child’s face turned red and he was unable to breathe.
That resulted in the caregiver not only losing his job at a group home for boys but having his name entered into the Arizona Central Registry as a child abuser for the next 25 years. He was identified only as Phillip B. in court records.
The problem, said attorney Adi Dynar of the New Civil Liberties Alliance, is McKay’s conclusions were directly contradicted by an administrative law judge who heard the evidence and exonerated Mr. B.
The bigger legal issue was Dynar’s contention it is improper to let McKay — or the head of any state agency — substitute his or her judgment and conclusions about the facts for those of the hearing officer who actually conducted the hearing and listened to the witnesses. Dynar asked that the law allowing that be struck down as unconstitutional.
Dynar called it a “stacked process.”
“The only independent factfinder in the administrative process employed here was the administrative law judge,” he wrote in filing suit. “The ALJ heard testimony, made credibility determinations, and entered finds of fact and conclusions of law into the record.”
But under Arizona’s law, any appeal of the administrative law judge’s decision — whether by the subject of the complaint or the agency that filed the complaint — goes back to the head of the agency, “the very same agency that investigated the prosecuted the charge against Mr. B. in the first place.”
“Under this procedure, DCS and Director McKay not only investigated and prosecuted the child-abuse charge against Mr. B., but also acted as the ultimate factfinder and judge,” Dynar wrote.
The judge didn’t see it that way. He called it “well-settled law” that the combining of investigatory and adjudicatory functions in a single agency does not violate due process absent a showing of actual bias.
“And what the Phillip briefs attempt to pass off as bias is merely self-interested speculation, suspicion, apprehension or imagination, which is not enough,” the judge wrote.
On a broader level, Gerlach rejected arguments that the system results in an unconstitutional concentration of power in the director of the department.
He said there is no evidence that McKay participated in the initial investigation nor prosecuted the case. Gerlach said McKay reviewed the record before reaching his own conclusions. Dynar promised an appeal.
