You would think that state officials prosecuting a hearing on a daycare center’s failure to follow the critical rules would know enough to following their own rules. Sadly, it seems that administrative judges for the Office of Children and Family Services need to be subject to their own hearing.
That they won’t be testifies to the inadequacies of New York’s open government laws.
The hearing last week was called in response to the state’s suspension of the license of Ellen’s Daycare in Cheektowaga. A 2-year-old, nephew of owner Ellen Stott, had wandered away from the home on busy Baywood Drive, walking almost a quarter of a mile before a deliveryman scooped him up, figured out where he belonged and returned him unharmed.
Stott appealed to lift the suspension, but the state officials improperly ordered a reporter to leave the hearing. “There’s confidentiality, because there will be exhibits and evidence that contain a lot of information about minors,” said Mariely L. Downey, the supervising administrative law judge for the Office of Children and Family Services’ Buffalo regional office. Administrative Law Judge Mary Walsh, who conducted the hearing, agreed.
It was a lazy decision – both improper and unwarranted. As a consequence, area residents, including those who use or might use the daycare center, were denied public information that might be important to them.
Certainly, the public has a right to be interested. Was the toddler’s dangerous escapade a one-off that doesn’t need to unduly worry other clients, or should they have a heightened concern about the center’s management? Beyond knowing that the toddler escapee’s parents continue to trust the boy’s aunt with his care, the officials conducting the hearing made sure the public was kept in the dark.
The decision was improper. A state policy manual says the public, including the media, have a presumptive right to attend hearings before administrative law judges absent a compelling reason for closure. But any issues of confidentiality could have been addressed simply by not stating the children’s names, said Robert Freeman, executive director of the New York State Committee on Open Government.
“We’re talking about day care, and certainly there is a public interest in knowing that a day care provider is competent,” Freeman said. “It’s a significant issue when it comes to a licensee, and the public has the right to know if the licensee has the ability to carry out the responsibilities.”
Specifically, Freeman said a court has held that state administrative law hearings can be closed only for compelling reasons such as “family disintegration, alcoholism or other issues that involve intimate details of peoples’ lives.” This didn’t.
Plainly the hearing officers in this case were either ignorant of their responsibilities to the law and the public or simply indifferent to them. We’d suggest a public hearing on their conduct, but they’d probably find a reason to close that, too.