Justia.com Opinion Summary: Appellant appealed a termination decision by appellees (collectively, "Panel") after the Panel unanimously voted at a public hearing to terminate appellant's employment as Chief of Police. At issue was whether the Superior Court erred in holding that the votes of the remaining Panel members could cure the Panel's unlawful failure to recuse a biased member; whether the Superior Court erred in affirming the Panel's failure to provide appellant with the protections of Chapter 48 of the Police Department's rules and Regulations; and whether the Superior Court erred in concluding that the Panel provided appellant with sufficient notice of the grounds for the charges against him at the public hearing. The court held that appellant's testimony established a prima facie case of bias by a Councilman and the Panel's failure to recuse him could not be cured by votes of the remaining Panel members. Therefore, appellant's due process rights were violated. The court also held that because this ground for reversal was independently sufficient, the court declined to address appellant's other arguments. Accordingly, the judgment of the Superior Court was reversed and the case remanded for further proceedings.
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IN THE SUPEME COURT OF THE STATE OF DELAWARE
LIAM P. SULLIVAN,
)
)
Appellant,
)
)
v.
)
)
THE MAYOR AND COUNCIL OF )
THE TOWN OF ELSMERE,
)
)
Appellees.
)
No. 467, 2010
Court Below: Superior Court
of the State of Delaware in
and for New Castle County
C.A. No. 09A-09-001
Submitted: April 20, 2011
Decided: June 17, 2011
Before STEELE, Chief Justice, HOLLAND, BERGER, JACOBS and
RIDGELY, Justices constituting the Court en banc.
Upon appeal from the Superior Court. REVERSED and REMANDED.
Robert C. McDonald, Silverman, McDonald & Friedman, Wilmington,
Delaware for appellant.
Joseph Scott Shannon, Marshall Dennehey Warner Coleman & Goggin,
Wilmington, Delaware for appellees.
STEELE, Chief Justice:
The Mayor and Town Council (collectively, the Panel) of the Town of
Elsmere terminated Liam Sullivan’s employment as Chief of Police. Sullivan
appealed his termination to the Superior Court, which affirmed the Panel’s
decision. Sullivan now appeals the Superior Court judgment. Because the Panel’s
failure to recuse a biased member could not be cured by the votes of the remaining
Panel members, the Panel violated Sullivan’s due process rights. Therefore, we
reverse.
I.
FACTS AND PROCEDURAL HISTORY
On June 15, 2008, Sullivan became the Chief of Police for the Town of
Elsmere. On February 12, 2009, the Panel held an executive session, in part, to
consider whether Sullivan was fit to continue as Police Chief. At the session, the
Panel questioned Sullivan regarding decisions he had made and provided Sullivan
with what he characterized as a multiple page “list of concerns.”
On June 11, 2009, the Panel introduced Town Ordinance 509. Ordinance
509 eliminated Chapter 48 of the Police Department’s Rules and Regulations
governing investigatory and disciplinary processes concerning the Police Chief. In
its place, Ordinance 509 substituted 11 Del. C. § 9301. The Panel formally
enacted Ordinance 509 on July 9, 2009.
Also on June 11, the Panel moved into a brief executive session during
which it issued a “Notice of Admonition” to Sullivan. This Notice included twenty
2
eight specific “deficiencies” regarding his conduct as Police Chief and the business
of the Department of Public Safety for which he was responsible. According to the
Notice, the list embodied those deficiencies the Panel addressed with Sullivan at its
executive session on February 12. The following week, the Panel placed Sullivan
on administrative leave.
On July 13, 2009, Town Solicitor Edward McNally sent a letter advising
Sullivan that the Panel had scheduled a public hearing to determine whether it
should terminate Sullivan as Police Chief. In the letter, McNally wrote that: “The
ground for termination is that the Department of Public Safety is not being
properly managed by the Chief of Police. The more specific grounds may include,
but are not limited to, all or any of the following:” (1) failure to follow policies and
procedures, (2) failure to adopt proper policies, (3) failure to administer responses
to inquiries, (4) failure to maintain proper personnel, (5) failure to follow council
directions, and (6) failure to report accurately to mayor and council. Underneath
each of these six headings, McNally provided a one paragraph description of what,
specifically, the applicable heading meant.
The Panel introduced Town Ordinance 510 on July 27, 2009 to establish the
rules and procedures to aid the Panel in conducting the public hearing. The Panel
formally enacted Ordinance 510 on August 11, 2009. Two days later, on August
13, 2009, the Panel began the public hearing, which lasted two days. The Mayor,
3
Deborah Norkavage, was designated as the hearing officer. All six members of the
Town Council also attended.1
At the start of the public hearing, Sullivan asked the Panel when it would
take its oath. Solicitor McNally explained that the Panel, having previously sworn
to uphold and follow the Constitution, the laws of Delaware, and the Town
Ordinances and Town Charter, would not take a separate oath for purposes of the
hearing.
Sullivan then made several motions and objections. First, he moved to
dismiss the proceeding because Chapter 48, rather than Ordinance 510, should
apply to the hearing. Mayor Norkavage denied this motion. Then, Sullivan moved
to call each member of the Panel as a witness in his defense. Mayor Norkavage
also denied this motion. Next, Sullivan moved for the recusal of Jaremchuk and
Personti on the ground that a previous conflict between them and Sullivan tainted
their impartiality. Mayor Norkavage also denied this motion. Finally, Sullivan
moved that the Panel consider that the notice Sullivan received was insufficiently
specific. Mayor Norkavage denied this motion, as well. Sullivan concluded this
exchange by asking the Panel to keep his objections open and outstanding until the
completion of the presentation of evidence.
1
These members are: John Jaremchuk (First District), Steven Burg (Second District), Thomas
Novak, Jr. (Third District), Charles McKewen (Fourth District), Joann I. Personti (Fifth District),
and John Pasquale (Sixth District).
4
After this procedural discussion, the parties made opening statements. Then,
four witnesses testified: (1) Vincent Barbone, a partner in the accounting firm of
Haggerty & Haggerty, for the Town of Elsmere, (2) John Giles, the Town Manager
for Elsmere, (3) Sullivan, in his own defense, and (4) acting Police Chief Stephen
Smith, for Elsmere in rebuttal. Sullivan relevantly testified:
Jaremchuk asked me for a personal favor, that his daughter’s
boyfriend had applied to the Elsmere Police Department or was going
to apply to the Elsmere Police Department.
...
I acknowledged that, yes, I did see that and we would give [him] a
good look, he seemed like a good guy.
...
At the conclusion of ranking . . . the applicants, . . . Councilman
Jaremchuk’s daughter’s boyfriend, [] had ranked fourth overall.
I advised my staff that I was going to call the Councilman and give
him the news as a courtesy call [because there were only two openings
available at that time].
...
. . . [Jaremchuk] said, you MF’ers, I knew you were going to do this.
I asked you for a personal favor and you screw me like this. I said,
first off, I don’t know why you’re talking to me like this. And he said,
let me tell you something. You’re F’ing done here. I was like, whoa,
whoa, whoa. And this went on for quite some time.
...
During [the conversation], [Jaremchuk] repeatedly told me, you’re
done here. And I said, at the end of it, I said are you threatening me?
And he said, you take it any way you want. But remember how I
vote, [Councilwoman Personti] follows.
5
Sullivan also testified that after this incident, his professional relationship with
Jaremchuk went from “a good working relationship to no working relationship,”
and that he had tried to inform the Panel of this incident at the February 12
executive session, but Jaremchuk had called him a liar.
After the parties made closing arguments, the Panel deliberated for about
two and one half hours. When the Panel returned, Councilman Novak moved to
resolve that the evidence proved five charges against Sullivan which, when taken
together, constituted cause for Sullivan’s termination. The Panel voted on the
following five charges:
1. Liam Sullivan was insubordinate by opposing a proposed charter
amendment and his testimony as to why he opposed the charter
amendment is not credible or a proper justification.
2. Liam Sullivan backdated a policy to pay sick leave to a departing
officer who was not entitled to that payment and his explanation
for why he did so is not credible.
3. Liam Sullivan failed to correct the 2009 defects of fiscal controls
documented in December 2008 by the auditor.
4. Liam Sullivan adopted the policies of the Elsmere Police
Department without council’s approval, including some policies
that were sloppy and contrary to the town charter, and his claim
that these policies were not approved by him is not credible.
5. Liam Sullivan failed to appropriately respond to inquiries on a
Request Tracker and his explanation that he did not understand his
responsibilities is not a credible or justifiable excuse.
6
The Panel unanimously voted that the evidence substantiated charges 1, 2, 4, and 5,
and voted 5-2 that the evidence substantiated charge 3.2 Before adjourning, the
Panel instructed Sullivan to return his badge and all his equipment to the town.
Sullivan appealed his termination to the Superior Court. For purposes of this
appeal, the Superior Court relevantly concluded:
In The Town of Cheswold v. Vann, the Delaware Supreme Court
found that “[w]ithout specific evidence to the contrary, the
presumption that the Town Council acted impartially must be
applied.” In the case sub judice, Sullivan’s testimony regarding the
possible bias of Council member Jaremchuk established a prima facie
case of bias. The Town of Elsmere did not present any evidence in
rebuttal. As a result, the Court finds error in the Council’s refusal to
direct that Councilman Jaremchuk recuse himself.
However, Sullivan did not establish any bias or prejudice by
Councilwoman Personti or the other members of the Council.
Jaremchuk’s warning that Personti would vote with him is not,
standing alone, evidence of partiality. Jaremchuk’s statement is not
sufficient to rebut the presumption that Personti acted impartially.
The findings of the Council are supported by votes of 7 to 0 for
Counts 1, 2, 4, and 5; and 5 to 2 for Count 3. The procedures for the
due process hearing do not require a unanimous vote. Ordinance 510
requires that a motion “be made regarding the action to be taken in
this matter.”
The Charter of Elsmere provides that “motions shall be valid upon the
affirmative vote of a majority of members of the Council present.”
The Charter also states that the “Chief of Police may be removed from
office upon an affirmative vote of five (5) members of the sitting
council voting in favor of removal . . . .” Even assuming Councilman
Jaremchuk’s vote was invalid, Counts 1, 2, 4, and 5 were found by a
2
Councilmen Burg and Pasquale voted against charge 3.
7
vote of 6 to 0. Only the vote on Count 3 (4 to 2) would fail to remove
Sullivan. Therefore, the Court finds that the Town garnered sufficient
votes to remove Sullivan from office on at least four out of five
Counts.3
The Superior Court judge found no merit to Sullivan’s claims and affirmed the
Panel’s judgment. Sullivan now appeals the Superior Court’s judgment and makes
three primary arguments: (1) the Superior Court erred in holding that the votes of
the remaining Panel members could cure the Panel’s unlawful failure to recuse a
biased member, (2) the Superior Court erred in affirming the Panel’s failure to
provide Sullivan with the protections of Chapter 48, and (3) the Superior Court
erred in concluding that the Panel provided Sullivan with sufficient notice of the
grounds for the charges against him at the public hearing.
After oral argument before a panel, we directed the parties to file
supplemental memorandums to address the following two issues:
(1) Whether the absence of a cross-appeal precludes consideration of
Appellee’s argument that sufficient facts were not presented to the
[Panel] to support recusal; and
(2) If a councilman that should have been disqualified participated in
the proceedings, was that error reversible or harmless?
The parties submitted their memorandums and we now decide the case without
additional oral argument.
3
Sullivan v. Mayor and Council of Town of Elsmere, 2010 WL 2802420, at *4 (Del. Super. July
15, 2010).
8
II.
STANDARD OF REVIEW
When reviewing a decision to terminate a police chief, we use the standard
of review for appeals from decisions of administrative agencies.4 Accordingly, we
review the Panel’s decision “to determine whether [the Panel] acted within its
statutory authority, whether it properly interpreted and applied the applicable law,
whether it conducted a fair hearing and whether its decision is based on sufficient
substantial evidence and is not arbitrary.”5 Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”6
We review errors of law, as well as questions of statutory interpretation, de novo.7
III.
ANALYSIS
On appeal, Sullivan argues that the Superior Court erred by holding that the
Panel’s failure to disqualify Jaremchuk could be cured by the votes of the
remaining Panel members. Elsmere argues in response that the Superior Court
correctly ruled that Jaremchuk’s potential bias—which it disputes—in any event
does not rebut the presumption of impartiality for the remaining Panel members.
4
Vann v. Town of Cheswold, 945 A.2d 1118, 1121 (Del. 2008).
5
Avallone v. State/Dept. of Health & Soc. Servs., 14 A.3d 566, 570 (Del. 2011) (quoting Hopson
v. McGinnes, 391 A.2d 187, 189 (Del. 1978)).
6
Id. (quoting Person-Gaines v. Pepco Holdings, Inc., 981 A.2d 1159, 1161 (Del. 2009)).
7
Id.
9
To resolve this claim, we must address two issues. First, we must address whether
the absence of a cross-appeal precludes our consideration of Elsmere’s argument
that Sullivan presented insufficient facts to the Panel to support recusal. This first
issue yields three possible outcomes: (1) because Elsmere did not cross-appeal, we
cannot consider its factual argument, (2) even though Elsmere did not cross-appeal,
we can consider its factual argument, but we disagree with that argument, or (3)
even though Elsmere did not cross-appeal, we can consider its factual argument,
and we agree with it. If our consideration of this first issue leads to outcome (3),
our inquiry is complete. If our consideration of this first issue leads to outcome (1)
or (2), however, then we must address a second issue—namely, whether the error
in failing to disqualify Jaremchuk was reversible or harmless.
Specifically, Sullivan contends that Elsmere may not now argue that he
presented insufficient facts to the Panel to support recusal because Elsmere failed
to file a cross-appeal regarding the Superior Court judge’s conclusion that
Sullivan’s testimony constituted a prima facie case of bias. In support, Sullivan
relies on two related legal concepts: (1) the “cross-appeal rule,” as explained by the
United States Supreme Court in Greenlaw v. United States,8 and (2) the “law of the
8
554 U.S. 237 (2008).
10
case” doctrine that this Court has recognized in many cases, including Weedon v.
State9 and Scharf v. Edgcomb.10
In Greenlaw, the United States Supreme Court explained the nature of the
“cross appeal rule,” but declined to define its parameters with precision:
The cross-appeal rule, pivotal in this case, is both informed by, and
illustrative of, the party presentation principle. Under that unwritten
but longstanding rule, an appellate court may not alter a judgment to
benefit a nonappealing party. This Court, from its earliest years, has
recognized that it takes a cross-appeal to justify a remedy in favor of
an appellee.
Courts of Appeals have disagreed, however, on the proper
characterization of the cross-appeal rule: Is it “jurisdictional,” and
therefore exceptionless, or a “rule of practice,” and thus potentially
subject to judicially created exceptions? Our own opinions contain
statements supporting both characterizations.11
The “law of the case” doctrine similarly may preclude consideration of
issues that have been decided by a lower court.
For example, in Scharf v.
Edgcomb, we reviewed a Court of Chancery decision that involved two
determinations in appellant’s favor: (1) that the appellant proved the elements
necessary to support a claim for indemnification and (2) that appellant’s claimed
attorneys’ fees and expenses were reasonable.12 Nevertheless, the Vice Chancellor
9
750 A.2d 521 (Del. 2000).
10
864 A.2d 909 (Del. 2004).
11
Greenlaw, 554 U.S. at 244–45 (citations omitted).
12
Scharf, 864 A.2d at 914–15.
11
ultimately determined that the appellant’s indemnification claim was barred by the
applicable statute of limitations.13 On appeal, the appellant challenged the statute
of limitations determination. We reversed, noting in our opinion that the appellee
could not challenge the Vice Chancellor’s determinations on the two merits issues
because “[n]o cross-appeal was filed . . . and th[ose] holding[s] [became] the law
of th[e] case.”14
In this case, Elsmere did not file a cross-appeal to challenge the Superior
Court judge’s conclusion that:
Sullivan’s testimony regarding the possible bias of Council member
Jaremchuk established a prima facie case of bias. The Town of
Elsmere did not present any evidence in rebuttal. As a result, the
Court finds error in the Council’s refusal to direct that Councilman
Jaremchuk recuse himself.15
Consequently, the Superior Court judge’s determination that Sullivan’s testimony
established a prima facie case on the part of Jaremchuk—like the Vice
Chancellor’s determinations in Scharf—became the law of this case.
The “law of the case” doctrine includes two exceptions. First, the doctrine
does not apply where a previous ruling was “clearly in error” or if there was an
important change in circumstances with respect to the factual basis for issues
13
Id. at 915.
14
Id.
15
Sullivan, 2010 WL 2802420, at *4
12
previously decided.16
Also, the doctrine does not apply if there is sufficient
“equitable concern of preventing injustice” to overcome the doctrine.17 We believe
that nothing in this record suggests that the Superior Court judge’s determination
was “clearly in error” or that “the equitable concern of preventing injustice”
overcomes the “law of the case” doctrine on these facts.
The record facts here also implicate the “cross-appeal rule.” Elsmere had an
opportunity to rebut Sullivan’s testimony establishing a prima facie case of
Jaremchuk’s bias.
Elsmere did not do that, even though its newly adopted
procedural rules provided for rebuttal.18 Nor did Elsmere file a cross-appeal from
the Superior Court judge’s bias determination.
The facts of this case do not require us to define the precise parameters of
the “law of the case” doctrine or the “cross appeal rule.” For even if Elsmere were
not precluded from challenging the Superior Court’s determination, based on either
or both doctrines, Elsmere, having presented no rebuttal evidence below, could
only argue that Sullivan’s testimony did not establish Jaremchuk’s bias. Although
the law presumes that Jaremchuk carried out his duties with honesty and
16
Weedon, 750 A.2d at 527.
17
Id. at 528.
18
Ordinance 510 provided in relevant part: “Rebuttal Testimony. Following the presentation of
the Chief of Police’s defense, the Town shall be provided a brief opportunity to present rebuttal
testimony from witnesses and/or other rebuttal evidence . . . .”
13
integrity,19 Sullivan’s testimony rebutted that presumption with evidence of
conduct suggesting personal bias.
Indeed, it is difficult to read Jaremchuk’s
alleged comments, including “You’re F’ing done here,” any other way.
Jaremchuk’s alleged comments reflect that he had prejudged the merits of
Sullivan’s termination proceeding. Even if Jaremchuk was not biased in fact,
Sullivan’s testimony, which the Panel did not rebut, creates an appearance of bias
sufficient to cause doubt about Jaremchuk’s impartiality because an objective
observer viewing the circumstances would conclude that Jaremchuk could not or
would not participate fairly or impartially in Sullivan’s hearing.20
Having concluded that the Panel should have recused Jaremchuk, we must
address whether its failure to recuse him was reversible or harmless error. If the
Panel had disqualified Jaremchuk, it would have approved four of the five charges
against Sullivan by a 6-0 vote. Even though the fifth charge would have failed to
garner the five votes required to serve as a basis for Sullivan’s termination, the
Superior Court judge determined that Elsmere had garnered sufficient votes to
remove Sullivan from office on the other four charges.
19
See Withrow v. Larkin, 421 U.S. 35, 47 (1975); Town of Cheswold v. Vann, 947 A.2d 1123,
2007 WL 1201716, at *2–3 (Del. 2007) (ORDER).
20
See Fritzinger v. State, 10 A.3d 603, 611 (Del. 2010).
14
If Sullivan’s hearing had been a criminal proceeding, our review would be
straightforward.
As we have explained, “if only one juror is improperly
influenced, a defendant in a criminal case is denied his Sixth Amendment right to
an impartial jury.”21 Unlike a criminal proceeding, however, in which the State
must garner a unanimous verdict to convict,22 Sullivan’s hearing only required five
of the seven possible Panel votes to establish a charge.23
A “fair trial in a fair tribunal is a basic requirement of due process” that
“applies to administrative agencies as well as to courts.”24 Whether one allegedly
partial member of a multi-member tribunal taints the entire tribunal’s decision and
deprives a party of due process appears to be an issue of first impression for this
Court. Many other authorities have addressed this question, however, and the
answer has been remarkably consistent.
The United States Court of Appeals for the Ninth Circuit, for example, has
held that:
[T]he fact that the tribunal’s vote was unanimous does not mean that
the bias of one member had no effect on the result.
21
Styler v. State, 417 A.2d 948, 951–52 (Del. 1980).
22
DEL. CONST. art. 1, § 4; Stevenson v. State, 709 A.2d 619, 634 (Del. 1998); Super. Ct. R. 31(a)
(“The verdict shall be unanimous. It shall be returned by the jury to the judge in open court.”).
23
See Charter of Elsmere, § 702(2)(iv).
24
Withrow, 421 U.S. at 46 (citations omitted).
15
. . . [W]here one member of a tribunal is actually biased, or where
circumstances create the appearance that one member is biased, the
proceedings violate due process. The plaintiff need not demonstrate
that the biased member’s vote was decisive or that his views
influenced those of other members. Whether actual or apparent, bias
on the part of a single member of a tribunal taints the proceedings and
violates due process.25
In that same opinion, for support, the court quoted from a concurring opinion by
Justice Brennan:
[W]hile the influence of a single participant in this process can never
be measured with precision, experience teaches us that each member’s
involvement plays a part in shaping the court’s ultimate disposition.
The participation of a judge who has a substantial interest in the
outcome of a case of which he knows at the time he participates
necessarily imports a bias into the deliberative process. This deprives
litigants of the impartiality that is the fundamental requirement of due
process.26
Many other courts have held similarly.27 And, a respected treatise touts the same
principle.28
25
Stivers v. Pierce, 71 F.3d 732, 747–48 (9th Cir. 1995).
26
Id. at 747 (quoting Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 831 (1986) (Brennan, J.,
concurring)).
27
See, e.g., Hicks v. City of Watonga, 942 F.2d 737, 748 (10th Cir. 1991) (“[I]f [one tribunal
member] is found to have been biased when she cast her vote on [the employee’s] dismissal, her
presence will have tainted the tribunal and violated [the employee’s] due process rights.”) (citing
Antoniu v. SEC, 877 F.2d 721 (8th Cir. 1989)); Cinderella Career & Finishing Schools, Inc. v.
F.T.C., 425 F.2d 583, 592 (D.C. Cir. 1970) (“Litigants are entitled to an impartial tribunal
whether it consists of one man or twenty and there is no way which we know of whereby the
influence of one upon the others can be quantitatively measured.”) (quoting Berkshire Employees
Ass’n of Berkshire Knitting Mills v. NLRB, 121 F.2d 235, 239 (3d Cir. 1941)); Am. Cyanamid
Co. v. F.T.C., 363 F.2d 757 (6th Cir. 1966) (“The result of the participation of Chairman Dixon
in the decision of the Commission is not altered by the fact that his vote was not necessary for a
majority.”); Hopkins v. Mayor & Council of City of Wilmington, 600 F.Supp. 542, 553 (D. Del.
16
The prevailing perspective is that the bias of one member of a multi-member
adjudicatory tribunal taints the entire tribunal’s decision and deprives the party
subject to the tribunal’s judgment of due process. This is true whether or not that
biased member’s vote is necessary to the judgment.
With these cases and
principles in mind, we conclude that the unrebutted prima facie showing of bias on
the part of Jaremchuk tainted the Panel and deprived Sullivan of due process.
Accordingly, Sullivan is entitled to a new hearing without Jaremchuk’s
participation.
We note that in the event the composition of the Panel is not changed, it is
impossible to erase any influence that Jaremchuk’s bias or appearance of bias may
have had on the rest of the Panel. We are not unmindful that one might find it
difficult to conceive how another hearing before the Panel—assuming the same
members—will yield a different result.
Nevertheless, absent evidence to the
contrary, we presume that the next Panel’s members will be aware of this Opinion
1984) (“The fact that Regan’s vote was not essential to a majority is immaterial, for the parties
agree that the principle of [Berkshire] would control.”); Kiger v. Albon, 601 N.E.2d 603, 607
(Ohio App. 6th Dist. 1991) (“[W]e adopt the reasoning of the American Cyanamid case and find
[the] participation [of a biased tribunal member whose vote was not necessary to the required
majority] to be a fundamental violation of due process and inherently prejudicial.”).
28
32 CHARLES ALAN WRIGHT AND CHARLES H. KOCH, JR., FEDERAL PRACTICE AND PROCEDURE
§ 8258 (1st ed.) (“The bias of one member of a multi-person tribunal may compromise the whole
body.”).
17
and will perform their duties with honesty and integrity.29 In any event, our duty is
to ensure that Sullivan, and all similarly situated, receive due process—a
fundamental pillar of our judicial system.
IV.
CONCLUSION
Sullivan’s testimony established a prima facie case of bias by Councilman
Jaremchuk, which Elsmere failed to rebut. Whether or not the “law of the case”
doctrine or the “cross appeal rule” prevents Elsmere from challenging the finding
of Jaremchuk’s bias at this stage, Jaremchuk’s alleged conduct created an unlawful
appearance of bias, if not actual bias, that warranted his recusal. The Panel’s error
by not disqualifying Jaremchuk, in accord with fundamental principles of due
process, tainted the Panel’s votes on the charges against Sullivan and deprived him
of due process.
That is so even though the votes of the rest of the panel,
independent of Jaremchuk, were sufficient to terminate Sullivan’s employment.
Sullivan is entitled to a new hearing before the Panel without Jaremchuk’s
participation. Because this ground for reversal is independently sufficient, we
decline to address Sullivan’s other arguments. The judgment of the Superior Court
is reversed and this case is remanded for proceedings consistent with this Opinion.
29
See Withrow, 421 U.S. at 47 (“[Claims of bias] must overcome a presumption of honesty and
integrity in those serving as adjudicators . . . .”); Vann, 2007 WL 1201716, at *2 (“[I]n order to
succeed on his claim that he was denied due process on the basis that the Town Council was
biased, Vann must point to specific facts in the record that rebut the presumption of honesty and
impartiality.”).
18
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