Bias Of One Panel Member Taints Entire Decision-Making Process

Liam Sullivan was the Chief of the Town of Elsmere, Massachusetts Police Department. A panel consisting of the Town Council and the Mayor held a public hearing to decide on Sullivan’s employment future. Sullivan made a motion to disqualify one Council member – by the name of Jaremchuk – on the ground that a previous conflict between him and Sullivan tainted his impartiality. The Mayor denied the motion, the panel went ahead with its hearing, and eventually unanimously decided to fire Sullivan. Mayor Norkavage also denied this motion. Sullivan appealed, challenging Jaremchuk’s presence on the panel.

The evidence concerning Jaremchuk’s bias dealt with Jaremchuk’s request that Sullivan hire Jaremchuk’s daughter’s boyfriend as a police officer. When the boyfriend placed fourth in the examination process for two open positions, Sullivan decided not to hire him, and called Jaremchuk to give him the bad news. Sullivan reported that the following conversation ensued:

“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.”

The Delaware Supreme Court ruled not only that Jaremchuk should not have participated in the hearing, but also that his presence irremediably tainted the entire process. As the Court analyzed it: “Although the law presumes that Jaremchuk carried out his duties with honesty and integrity, 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.

“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.”

Sullivan v. Mayor of Town of Elsmere, 2011 WL 2433682 (Del. Super. 2011).

The article appears in our January 2012 issue.