Opinion
10-P-608
08-17-2011
PHILIP G. HADDAD, JR. v. BOARD OF REGISTRATION OF FUNERAL DIRECTORS AND EMBALMERS.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On March 14, 2007, the Board of Registration of Funeral Directors and Embalmers (board) found Philip G. Haddad, Jr., in violation of G. L. c. 112, § 61; G. L. c. 112, § 84; 239 Code Mass. Regs. § 3.13(2), (5), (9), and (20) (1998); 239 Code Mass. Regs. § 4.02(2) (2004); and 239 Code Mass. Regs. § 4.12(1) (2004). As a result of these findings, the board banned Haddad from applying for a funeral or establishment certificate for five years. In an appeal pursuant to G. L. c. 30A, § 14, Haddad challenged the board's decision in Superior Court. The Superior Court judge denied Haddad's motion for judgment on the pleadings and affirmed the board's decision. Haddad now appeals.
Discussion. On appeal, Haddad argues that, as a result of incidences of bias by the board, he was denied his right to due process under art. 29 of the Massachusetts Declaration of Rights and the Fourteenth Amendment to the United States Constitution. Where an appellant challenges the ruling of an administrative board, he bears the burden of demonstrating the invalidity of the administrative determinations. Faith Assembly of God of S. Dennis & Hyannis, Inc. v. State Bldg. Code Commn., 11 Mass. App. Ct. 333, 334 (1981). We review the administrative decision in accordance with the standards established by G. L. c. 30A, § 14(7). Brown-Forman Corp. v. Alcoholic Bevs. Control Commn., 65 Mass. App. Ct. 498, 503 (2006). Under the relevant standard applicable in this case, we may set aside the administrative decision if the appealing party demonstrates that an agency decision is 'in violation of constitutional provisions.' G. L. c. 30A, § 14(7)(a), as amended by St. 1973, c. 1114, § 3.
To the extent that Haddad is arguing that the board's decision was not supported by substantial evidence under G. L. c. 30A, § 14(7), his argument fails. Here the board held a seven-day hearing, called upon twenty-four witnesses, and had fifty-eight exhibits entered in evidence. We conclude that the evidence was sufficient for the reasons set out by the Superior Court judge.
A. 2003 board meeting. Haddad's primary complaint of bias stems from comments made by board chair Jack Kazlauskas and board investigator John Bresnahan at a regularly scheduled board meeting in 2003 (2003 meeting). Haddad, and Kurt and Katherine Mangsen, owners of the funeral home at which Haddad was previously employed, were asked to appear at the 2003 meeting after Bresnahan found documents missing from files prepared by Haddad. At the 2003 meeting, Kazlauskas referred to Haddad as a 'carpetbagger' and a 'snake' and stated that Haddad had previously attempted to enter into an illegal business arrangement with him. After Kazlauskas called Haddad a 'snake,' Kazlauskas realized that the meeting was being recorded and asked to have his comment deleted from the recording. At the same meeting, Bresnahan referred to Haddad as 'a real scavenger' and suggested that Kazlauskas act as a witness against Haddad. These comments were made before Haddad or the Mangsens entered the meeting room.
Kazlauskas made another comment about 'carpetbaggers' later in the meeting when the Mangsens were present. It is not clear if this was another reference to Haddad.
Kazlauskas recused himself from the part of the 2003 meeting that Haddad attended, but returned to the meeting to speak to the Mangsens about Haddad's employment. Kazlauskas was also present when, later in the meeting, the board voted to file a formal complaint against Haddad. Kazlauskas appears to have participated in this vote. It is not clear from the record whether Kazlauskas participated in the board's decision to initiate formal adjudicatory proceedings by issuing an order to show cause dated June 29, 2004. However, Kazlauskas died on March 4, 2005, and thus did not take part in Haddad's seven-day hearing before the board in 2006.
On February 25, 2005, after obtaining a recording of the 2003 meeting and learning of the statements by Kazlauskas and Bresnahan, Haddad sought the appointment of an impartial adjudicator. Haddad renewed this request in a letter filed on June 6, 2005. On June 20, 2005, the board issued a ruling denying Haddad's request for an independent adjudicator. Two board members who were present at the 2003 meeting were still members of the board in 2006 at the time of Haddad's hearing. Although normally comprised of five members, G. L. c. 13, § 29, only four board members voted on Haddad's alleged violations.
Haddad argues that the statements quoted, supra, by Kazlauskas and Bresnahan reflect bias and prejudice, that the board erred when it allowed Kazlauskas to return to participate in the 2003 meeting after recusing himself, and that the biased and prejudicial statements by Kazlauskas and Bresnahan infected the proceedings against him in front of the board. Haddad argues that taken together, this amounted to a violation of his right to due process and asks that this court reverse the board or at least remand the matter for a new proceeding in front of an impartial adjudicator.
An individual's right to impartial adjudication of his claim or any action brought against him is safeguarded by art. 29 of the Massachusetts Declaration of Rights, which 'extends beyond judges 'to all persons authorized to decide the rights of litigants." Police Commr. of Boston v. Municipal Ct. of the W. Roxbury Dist., 368 Mass. 501, 507 (1975), quoting from Beauregard v. Dailey, 294 Mass. 315, 324 (1936). The unquestionably inappropriate comments by Bresnahan and Kazlauskas are deeply troubling, as is the fact that Kazlauskas, after recusing himself, returned to participate in portions of the 2003 meeting related to Haddad. However, Kazlauskas did not participate as an adjudicator in Haddad's hearing. See Raymond v. Board of Registration in Med., 387 Mass. 708, 717 (1982) (plaintiff not denied constitutional or statutory rights where member of board made potentially biased statements before hearing but there was no evidence that this person was member of board at the time of hearing or participated in decision); D'Amour v. Board of Registration in Dentistry, 409 Mass. 572, 581 (1991) (upholding agency decision despite potentially biased statement made by board member at hearing because 'there was no due process violation since [board member] did not act as the hearing officer, and also recused himself from any deliberations by the board'). Rather, the comments by Bresnahan and Kazlauskas were made while the board was fulfilling an investigatory, not an adjudicatory, role. Haddad has cited no authority to support the proposition that an administrative decision can be dismissed or remanded due to bias during the investigation where there is an adjudicatory hearing on the matter. As such, Haddad has not met his burden of proof with respect to due process violations caused by the partial recusal of Kazlauskas.
To the extent that Haddad argues that his due process rights were violated because Kazlauskas was biased in the outcome of the proceedings against Haddad due to his personal, professional, and financial interest as a competing funeral director, this argument fails for the same reasons.
Similarly, Haddad has failed to meet his burden of proof with regard to the alleged taint that the statements by Kazlauskas and Bresnahan had on the hearing in 2006. Haddad has not provided any evidence of bias by the two members of the board who were present at the 2003 meeting that participated as adjudicators in the 2006 hearing, nor has he cited to any cases supporting a presumption of bias by board members who have heard inappropriate statements during investigatory proceedings. To the contrary, case law supports a presumption of good faith by board members. Raymond v. Board of Registration in Med., 387 Mass. at 716. Finally, exposure to inappropriate comments by Kazlauskas and Bresnahan is analogous to exposure to information during an investigation that is not later admitted at the hearing, and thus, does not disqualify the other board members for the same reason. See id. at 715-716.
While the due process claim here has not been established, we remind board members that they are subject to the same high standards that have been set for judges. Police Commr. of Boston v. Municipal Ct. of the W. Roxbury Dist., 368 Mass. at 507-508. As such, board members, when their impartiality is questioned, should consider whether it would be appropriate to recuse themselves.
B. Other allegations of bias. Haddad claims that the board concealed an audio recording of the 2003 meeting from him and that this was evidence of the board's bias against him. We find no merit in this argument since Haddad provides no evidence that the board had a copy that it was concealing from him.
Haddad also argues that the board was biased against him because in his initial investigation Bresnahan only looked at two files prepared by Haddad and because an inconsistent finding in one of the files was never discussed. There is no merit to either of these allegations. When Bresnahan went to the Mangsens' funeral home, he asked to see 'any six pre-need files of funeral directors who worked [there].' He was under no obligation to examine a certain number of files from each particular funeral director. The fact that he only reviewed two files prepared by Haddad does not demonstrate bias. Moreover, the inconsistency alleged by Haddad, that the file was in the name of one client but the letter in the file was signed in another name, is not relevant to the fact that the file was incomplete and thus clearly in violation of 239 Code Mass. Regs. § 4.12(1).
Haddad next claims that the board was biased because it held him responsible for effectuating a transfer of funeral trust accounts, when he claims to have acted with the knowledge and consent of Nordgren, the funeral home owned by the Mangsens. 'On appellate review, the [board's] findings of fact will not be set aside unless they are clearly erroneous.' Michaud v. Forcier, 78 Mass. App. Ct. 11, 15 (2010). Here, the board found significant evidence to support its conclusion that Haddad acted alone. As Haddad offers no evidence that these facts were erroneous, we conclude that the findings by the board were not clearly erroneous.
Some of the facts the board found in making this determination were that Haddad had created an insurance agency in order to apply for insurance policies; Haddad signed the place marked 'applicant/owner' on at least twenty of the forms; and Nordgren did not earn any commission from the transfer.
Haddad argues that the board demonstrated bias when it found that he was in violation of 239 Code Mass. Regs. § 3.13(1). Since the board ultimately ruled in favor of Haddad on this issue, we discern no evidence of bias.
Haddad further alleges that the board was biased when it denied his request for help after an unsuccessful attempt to subpoena an out-of-State witness. Haddad was pro se at the time that he requested assistance from the board. 'Although [Haddad was] acting pro se, [he] is held to the same standards as litigants who are represented by counsel.' Maza v. Commonwealth, 423 Mass. 1006, 1006 (1996). Thus, the board was not biased when it refused to provide Haddad with advice that he could have obtained by securing counsel.
Finally, Haddad argues that the board demonstrated its bias when he was first told that his application was being processed and later told that his application had never been received. Although a mistake may have been made, Haddad presents no evidence that the board's erroneous statement about never receiving his application was deliberate or that it prejudiced him in any way.
Judgment affirmed.
By the Court (Berry, Katzmann & Grainger, JJ.),