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Decaprio/Nationwise Exterminating - Ruling 2, August 22, 1994

Ruling 2, August 22, 1994

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

Proceedings to Deny and Revoke Business Registrations and Applicator Certifications
based upon Fraudulent Business Practices and Violations of Article 33 of
the Environmental Conservation Law and Part 325 of Title 6 of
the Official Compilation of Codes, Rules and Regulations of the State of New York,

- by -

FERDINAND DECAPRIO, JR., a/k/a
FRED DECAPRIO, JR.,
CLAIRE DECAPRIO,
LILLIAN COSTANZO, a/k/a
LILLIAN GLAZER COSTANZO,
CHARLES SCHNEIDER,
ANDRE TAYLOR,
NATIONWISE EXTERMINATING AND
DEODORIZING, INC., AND

ALL OF THE ABOVE-NAMED RESPONDENTS
ALSO DOING BUSINESS AS
1) TERMITES AND ANTS COMPANY,
2) A-ALL PEST CONTROL, INC., AND
3) ALL CONSERVATION, INC.,

Respondents.

RULING

This Ruling is in response to a filing labeled "Objection to Hearing Officer" made by the Respondents in the captioned matter. The Respondents seek to have the current Administrative Law Judge ("ALJ"), Susan J. DuBois, removed and replaced with ALJ William J. Dickerson who had previously been assigned to this case.

The Respondents claim that there are two grounds that warrant disqualifying ALJ DuBois. First they argue that the credibility of another Department employee, Marilyn DuBois may be at issue in the hearing. Respondents maintain that there may be a familial relationship between ALJ DuBois and Marilyn DuBois. Second, Respondents argue that ALJ DuBois and the co-counsel for Department Staff, Jonah Triebwasser, are both shop stewards for the Public Employees Federation, the labor union that represents the Professional, Scientific and Technical Services bargaining unit for employees of New York State.

Both of these arguments are meritless. The record shows no evidence of any familial relationship between ALJ DuBois and Marilyn DuBois. The coincidence of the identity of their last name is clearly not grounds for recusal.

The status of both ALJ DuBois and Staff co-counsel Triebwasser as shop stewards is not a sufficient connection to create even the appearance of impropriety in the mind of a reasonable observer. In their capacities as shop stewards, Ms. DuBois and Mr. Triebwasser work on matters wholly unrelated to any issue that could conceivably arise in this hearing. Further, there is nothing to suggest that as a result of this common activity, ALJ DuBois would be sympathetic to Mr. Triebwasser's case. If such a remote connection were sufficient to support this request, judges would need to recuse themselves whenever they discovered that they and an attorney appearing before them both participated in the same local bar association. This approach would paralyze the judicial system and would do nothing to serve the interests of justice.

As a separate matter, the Respondents question the motive for the removal of ALJ Dickerson from the case, implying that it was based on a perception that his rulings were unduly favorable to the Respondents.

Initially, it is important to note the Department Staff never requested that ALJ Dickerson be removed from the case. Instead, he was removed at the initiative of the management of the Office of Hearings because of a conflict in workloads. While ALJ Dickerson earlier indicated that the schedule in this proceeding did not conflict with other assignments, the delivery of transcripts to the wrong location in another of his cases caused an unforeseeable delay in briefing schedules. This delay placed work on both of these cases in conflict. The management of the Office of Hearings, solely motivated by this problem, decided to transfer this case to ALJ DuBois. In short, even if ALJ DuBois were removed from the case, ALJ Dickerson would in no event be reassigned.

The objections raised by the Respondents are found be without justification. This matter is remanded to ALJ DuBois for further proceedings.

IN WITNESS WHEREOF, the Department of Environmental Conservation has caused this Ruling to be signed and issued and has filed the same with all maps, plans, reports, and other papers relating thereto in its office in the County of Albany, New York this 22nd day of August, 1994.

For the New York State Department
of Environmental Conservation

_____________/s/_____________
By: LANGDON MARSH, COMMISSIONER

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