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DC Group Sues to Stop Arizona Agency Chiefs From Overruling Administrative Law Judges

A Washington, D.C., organization is challenging the ability of the heads of state agencies in Arizona to discard the conclusions of independent hearing officers.

The new lawsuit filed Friday in Maricopa County Superior Court contends that a caregiver at a group home was denied his rights when Greg McKay, director of the Department of Child Safety, concluded he was guilty of child abuse. Attorney Adi Dynar of the New Civil Liberties Alliance said McKay’s findings could result in the man — identified only as Philip B. — having his name entered into the Arizona Central Registry as a child abuser for the next 25 years.

Dynar said McKay’s conclusions are directly contradicted by the findings of the administrative law judge who heard the evidence and exonerated the man.

But the larger legal issue, said Dynar, is the fact Arizona law actually allows McKay to substitute his own judgment — and even his own version of the facts — from those of the independent hearing officer who conducted the hearing and listen to the witnesses. He wants a trial judge to find that statute unconstitutional. The outcome of the case has implications beyond DCS.

Many other state agencies operate under the same statutory provisions, with directors given wide latitude to decide cases even when the findings are contrary to those of a hearing officer. A declaration of unconstitutionality would undermine the entire system, a move that could help those who are accused of running afoul of agency rules, including those whose professions are regulated by the state.

There was no immediate response from either DCS or the Attorney General’s Office that is tasked with defending the constitutionality of state statutes. The underlying issue involves a 2018 incident when 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.

Dynar said that following a hearing the administrative law judge — who technically works not for DCS but for a separate Office of Administrative Hearings — concluded there was no probable cause to support the finding of abuse.

What happened next, Dynar said, is that McKay struck some of the testimony from the record, declined to accept the testimony of Philip B. and another adult witness, and ordered that the finding of abuse be listed on the record as “substantiated.”

Written by Howard Fischer Capitol Media Services

Originally published in the Arizona Capitol Times

September 2, 2019