Opinion
No. HHB-CV-08-4016782-S
September 30, 2009
MEMORANDUM OF DECISION RE PLAINTIFF'S JUNE 1, 2009 MOTION FOR DISMISSAL
The undersigned having heard and considered the evidence, both testimonial and documentary, and the oral and written arguments of counsel, does make the following findings of fact and conclusions of law:
FINDINGS OF FACT:
1. On February 20, 2008 the State Dental Commission, "Commission," voted 7 to 0 to sanction Dr. Douglas Macko, D.M.D., "Macko," when the Commission found that Macko:
a. Engaged in fraud or material deception in the course of professional activities,
b. Failed to document in a patient's medical record a diagnosis and/or treatment plan,
c. Breached the standard of care and engaged in incompetent and negligent conduct, and
d. Aided and abetted in the practice of dentistry, dental medicine or dental hygiene of a person not licensed to practice.
2. Macko appealed the Commission's Final Decision and sanctions to the Superior Court on March 6, 2008.
3. During the conduct of the appeal in the Superior Court, on May 14, 2009, Macko claims that he first learned that Dr. Elliot Berman, D.D.S., "Berman," was a member of the Commission that voted to sanction Macko on February 20, 2008.
4. On June 1, 2009 Macko moved to dismiss the case, or in the alternative for recusal of the trial judge, because Macko claims that Berman, at the time of the Commission vote on February 20, 2008, had an undisclosed conflict of interest that deprived Macko of an impartial tribunal. Additionally, Macko seeks to have the decision of the entire Commission vacated and the case dismissed pursuant to C.G.S. 4-183(k).
5. Pursuant to C.G.S. 4-183(i) the trial court scheduled a hearing to consider the aforementioned motion for dismissal and accept evidentiary proof, oral argument and legal briefs of the parties.
6. During the oral argument of August 7, 2009 the court severed the request for recusal of the trial judge, Honorable Henry S. Cohn, from the instant Motion for Dismissal ordering that if Macko wished to pursue a motion for recusal the same should be separately addressed to Judge Cohn.
7. The parties established that a subcommittee or panel of the State Dental Commission had held evidentiary hearings to determine the factual and legal basis and merits of the allegations against Macko.
a. Macko and his counsel participated, in all four hearings. The hearings occurred on 6-16-06, 9-27-06, 12-6-06 and 5-23-07,
b. Commission members Rutt, Marks and Reiss attended in the first three hearings and Marks and Reiss attended the last listed hearing. This subcommittee recommended action to the entire Commission,
c. Macko and his counsel had received a copy of the Commission's subcommittee's Proposed Final Decision well before the February 20, 2008 meeting,
d. Macko and his counsel attended and participated in the Commission's February 20, 2008 meeting,
e. Macko did not raise any question of or objection to Berman's participation in the Commission hearing on February 20, 2008,
f. The entire Commission unanimously agreed with and acted upon said recommendation at the regularly scheduled February 20, 2008 Commission hearing.
8. In May 2009 Macko claims that he first learned that Berman was a Commission member on February 20, 2008. See Macko's May 29, 2009 affidavit and August 7, 2009 testimony.
9. No satisfactory explanation was offered by Macko as to why he failed to identify the Commission members during or before the February 20, 2008 Commission hearing so as to raise and address the now-claimed potential conflicts of interest between Macko and Commissioner Berman.
10. Berman's affidavit, filed in the Superior Court proceeding after Macko first raised the claim of a conflict of interest in May of 2009, establishes the following:
a. Berman was appointed to the Commission on May 4, 2007;
b. Berman did not participate in any of the Dental Commission v. Macko evidentiary hearings, which ran on four (4) hearing dates between June 2006 and May 2007;
c. Before February 20, 2008 Berman had only attended the Commission meetings of 9-5-07 and 12-5-07;
d. Berman attended the February 20, 2008 Dental Commission meeting, at which the unanimous Commission voted to approve the evidentiary subcommittee's recommended Proposed Final Decision, with only a single technical amendment, and sanction Macko;
e. Berman, through affidavit, said he was "virtually silent at the Commission meeting when the Proposed Decision (concerning Macko's case, ed.) of the panel was considered by the full Commission and I did not speak in favor or in opposition to the Proposed Decision(.)" Furthermore, Berman did not move to approve the decision of the evidentiary subcommittee or `panel' nor did Berman second the motion to approve said recommended decision, see affidavit of Berman, Ex. A of Defendant's 7-23-09 Brief in Opposition to Motion for Dismissal; and
f. Berman's affidavit does not explain why he was "virtually silent" during the full Commission's consideration of Macko's case — whether Berman recognized Macko's name from past association, whether Berman was new to the Commission and hesitant to speak, whether Berman deferred to the evidentiary subcommittee or panel that had received the evidence during the four evidentiary hearings and recommended an outcome subsequently adopted by the full Commission or other unstated reasons.
11. Macko testified at the August 7, 2009 court hearing on Macko's instant motion that Macko did not recognize Berman during the February 20, 2008 Commission meeting, as the two men had never met and never spoken.
12. Macko testified that Berman showed no sign of recognition of Macko during the February 20, 2008 Commission hearing.
13. Macko did not offer any evidence that Berman participated in the February 20, 2008 Commission hearing in any fashion inconsistent with Berman's affidavit as described in pertinent part above.
14. Macko did not offer any evidence from Berman, or any other witnesses, concerning the instant matter.
15. Macko did not request a continuance of the instant court proceeding for the purpose of securing evidence from Berman or any other source concerning the instant matter.
16. Mako did offer evidence that: in November 2003 Macko had seen Nelson Jimmo, "Jimmo," professionally, at the request of Jimmo's attorney. Macko then rendered an opinion that Berman's previous dental care and treatment of Jimmo failed to meet the "applicable standard of care" and caused Jimmo damage. See Macko's testimony at the August 7, 2009 hearing and Macko's Ex. A appended to Macko's June 1, 2009 Motion for Dismissal.
17. Jimmo's counsel, Louis W. Flynn, Jr. Esq., prepared and signed a "certificate of good faith," as then required by C.G.S. 52-190a, prior to the institution of Jimmo v. Berman, CV 03-0830848, see Macko's Ex. A which is Jimmo's 10-28-04 "Corrected Supplemental Compliance," p 3, answer to interrogatory #54 (which interrogatory is not attached), as appended to Macko's June 1, 2009 Motion to Dismiss.
18. Macko's name and address were first disclosed in the case of Jimmo v. Berman on or about 10-28-04 in discovery responses.
19. Macko's identity and the nature of his aforementioned opinion, but not a copy of the written opinion, was disclosed in said discovery responses to comply with the statutory requirements of C.G.S. 52-190a.
20. Macko was not disclosed as a treating health care provider of Jimmo, a potential fact witness for Jimmo nor as an expert witness in Jimmo v. Berman.
21. Macko offered no evidence that the above-referenced discovery responses, including the disclosure of Macko's name, identity and role as a provider of an opinion to satisfy the requirements of C.G.S. 52-190a, was provided to Berman, that Berman reviewed the discovery answers or that Berman knew of or understood Macko's role in Jimmo v. Berman. Instead, the proof offered showed that the disclosures were made to Berman's defense counsel in the Jimmo v. Berman case.
22. Macko proved that Berman's defense counsel in Jimmo v. Berman filed a motion for summary judgment based on the statute of limitations and Judge Rittenband considered and decided the same in a written opinion dated April 10, 2007.
23. Macko's counsel argues, without any proof, that the substance of said motion must have involved Berman and, consequently, Berman must have learned of Macko's existence either during the preparation of that motion, reviewing Jimmo's counsel's response to the motion or when reading Judge Rittenband's decision.
24. Macko offered no evidence that Berman participated in his counsel's drafting of a motion for summary judgment, read the motion for summary judgment, read either Jimmo's counsel's response to the motion or read Judge Rittenband's decision on the motion.
25. Macko offered no evidence as to whether, on or before February 20, 2008, Berman knew of Macko's involvement in the case of Jimmo v. Berman.
26. Through counsel, Macko now claims that, at or before the February 20, 2008 Commission meeting, Berman must have recognized Macko as the person who had, in 2003, opined about Berman's care of "Jimmo."
27. Macko claims that Berman had a conflict of interest based on Macko's above-described examination of Jimmo and opinion about Berman's care of Jimmo that was used by Jimmo's counsel to prepare a certificate of good faith to comply with 52-190a prior to filing the dental negligence case of Jimmo v. Berman.
28. Macko also claims that because of Macko's role in the Jimmo case, Berman's participation in the February 20, 2008 Commission deliberation and decision against Macko deprived Macko of an impartial administrative tribunal.
29. Macko also claims that "other procedural irregularities," page 6 of the June 1, 2009 Motion for Dismissal, require the Commission's decision be dismissed, however, no evidence of "other procedural irregularities" was offered nor was any legal basis for a dismissal based on "other procedural irregularities" briefed or argued. Without evidence, legal memorandum or arguments of counsel, these claims for dismissal are not considered.
30. Macko offered no evidence, nor made any assertion, that Berman communicated to any other Commission member anything about Macko, in any connection, before or during the February 20, 2008 Commission meeting wherein Macko was sanctioned.
LEGAL RATIONALE:
"The applicable due process standards for disqualification of administrative adjudicators do not rise to the heights of those prescribed for judicial disqualification . . . The mere appearance of bias that might disqualify a judge will not disqualify an arbitrator . . . Moreover, there is a presumption that administrative board members acting in an adjudicative capacity are not biased . . . To overcome the presumption, the plaintiff . . . must demonstrate actual bias, rather than mere potential bias, of the board members challenged, unless the circumstances indicate a probability of such bias too high to be constitutionally tolerable . . . The plaintiff has the burden of establishing a disqualifying interest." (Citations omitted; internal quotation marks omitted.) Moraski et al. v. Connecticut Board of Examiners of Embalmers and Funeral Directors, 291 Conn. 242, 262 (2009).
Macko has not demonstrated actual bias of Berman in the Commission's February 20, 2008 action in Macko's case before the State Dental Commission. The record is devoid of any communication, action or inaction by Berman that suggests that Berman harbored or acted with any bias toward Macko when Berman participated in the February 20, 2008 Dental Commission meeting.
In Rado v Board of Education, 216 Conn. 541 (1990) disqualification for bias of several of the administrative tribunal members was rejected though the plaintiff proved that he'd had several verbal and physical altercations with one tribunal member, claimed an occupational/hiring dispute with another tribunal member's late spouse, claimed to have voted against and exchanged "unpleasantries" with a third board member when that person sought a nomination at a Democratic Town Committee meeting and, lastly, claimed to have been instrumental in removing a different tribunal member from a paid position refereeing school athletic events. Each of the challenged board members testified as to the movant's claims, their recollections of the same and the impact or lack thereof on the challenged member's ability to act impartially. The trial court rejected the claims of bias finding that the challenged tribunal members had neither a financial nor a personal interest in the outcome of the administrative decision that precluded their participation. The Court affirmed the trial court's rejection of the claims of bias of the various tribunal members. In factual contrast to Rado, Berman did not testify at all in the instant case. Macko offered no evidence that Berman and Macko had ever met or even spoken. Macko offered no evidence of any financial gain to Berman or Berman's personal interest in the outcome of the Dental Commission's actions vis-a-vis Macko.
Macko's 2003 opinion about Berman's care and treatment of Jimmo did not create a constitutionally intolerable probability of bias. Unlike the zoning official who not only voted on his wife's application for a hotly contested and substantially opposed zone change and advocated his wife's cause during the executive session of the zoning board in Low v Madison, 135 Conn. 1, 9 (1948), here Berman had no financial or personal interest in the outcome of the Dental Commission actions vis-a-vis Macko.
Not only is a biased decision maker constitutionally unacceptable but "our system of law has always endeavored to prevent even the probability of unfairness." In re Murchison, supra, at 136; cf. Tumey v. Ohio, 273 U.S. 510, 532 (1927), Withrow v. Larkin, 421 U.S. 35, 47 (1975)
While the undersigned has found that Macko failed to prove that on February 20, 2008 Berman knew Macko or knew of Macko's rather minor role in the Jimmo v. Berman case, that possibility remains. "We will not assume that public officers have acted dishonorably or dishonestly or that they have used their public trust for private ends, in the absence of proof," Low, p 7. In accordance with Low, supra, in the absence of proof of the same, this court will not resort to speculation, guess and conjecture about whether the same might constitute a personal interest that creates a constitutionally intolerable probability of bias.
Murach v Planning and Zoning Commission of New London, 196 Conn. 192 (1985) describes the standards by which, if a commission member disqualification is found, the disqualification invalidates the action of the entire Commission. The Court in Murach disqualified a member of the zoning commission, but did not invalidate the votes of the balance of the zoning commission.
In Murach, supra, p. 202, a New London zoning commission member was disqualified because he was found to be statutorily proscribed from membership on the city zoning commission. There was no claim of bias, simply a statutory prohibition against a commission member simultaneously holding a "salaried municipal office." The subject commissioner was both a paid member of the cities' fire department and a planning and zoning commission member. In sum, the subject commissioner was disqualified.
The Murach court described four considerations of whether disqualification necessitated consequential Commission action invalidation: the role disqualified commission member in the commission's action, whether the disqualified commissioner had made an attempt to influence or sway the other members of the commission, whether the commissioner had a personal interest, financial or otherwise, in the outcome of the before the commission, and whether the disqualified commissioner's vote was necessary to sustain the action of the commission.
In the instant case Berman's conduct before and during the February 20, 2008 Commission hearing was minimal. Berman did not participate in the Commission's evidentiary panel that found facts and recommended the action that was subsequently unanimously endorsed by the Commission. Berman was "virtually silent" during the February 20, 2008 full Commission discussions of Macko's case and initiated no motions to vote nor seconded any motions to vote. Macko indicated that he saw no signs of recognition from Berman during the February 20, 2008 Commission meeting.
Macko has not asserted, nor offered evidence that Berman attempted to influence or sway the other Commission members. In fact, there was no evidence that Berman conveyed any information to the other Commission members for, against or about Macko or anything to do with the substance of the Commissions' findings or actions vis-a-vis Macko.
Berman had no personal interest, financial or otherwise, in the outcome of the before the Commission. There was no evidence that Berman had any financial interest in the outcome of the Macko's case before the Commission. While Macko's 2003 opinion concerning Berman's care and treatment of Jimmo is critical Berman's provision of professional service, the opinion does not attack Berman personally. There is insufficient evidence to convince the court that Berman knew of Macko's minor role in the Jimmo v. Berman lawsuit or that the same, if known, affected Berman's ability to serve impartially.
Lastly, the Murach court considered whether the vote of the disqualified member was necessary to sustain the action of the Commission. Assuming arguendo that Berman should be disqualified, as in Murach, here there is no basis to disqualify the votes of the balance of the Dental Commission members. Unlike Low v Madison, supra, p. 1 9, in the instant case neither a unanimous vote of the Board Commission was necessary to act nor was there any indication that the later disqualified board member attempted to sway or influence his fellow board members. Therefore, even assuming arguendo that Dr. Berman was disqualified from voting, the balance of the Commission was not disqualified and their votes stand as cast.
CONCLUSIONS OF LAW:
Macko offered no evidence that Berman had any financial stake in the outcome of Macko's case before the Commission that would deprive Macko of an impartial tribunal. Macko has failed to prove by a fair preponderance that Berman, on or before February 20, 2008, either knew Macko or knew of Macko's role in Jimmo v. Berman and consequently failed to prove that Berman had any bias or personal interest in the outcome of Macko's case before the Commission that would deprive Macko of an impartial tribunal.
The plaintiff's June 1, 2009 motion for dismissal is denied.