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8.11.

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

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BARBARA FINCH individually, on behalf

of Manny Moe and on behalf of all others similarly situated, CAROL JORDAN, individually and on behalf of all others similarly

. situated and BARBARA ORTIZ, individually and on behalf of all others similarly situated,

Plaintiffs,

Docket No. 04 CV 1668 (SAS) (JCF)

JURY TRIAL DEMANDED

-against-

THIRD AMENDED COMPLAINT

NEW YORK STATE OFFICE OF CHILDREN AND FAMILY SERVICES; JOHN A. JOHNSON, individually and in his capacity as the Commissioner

. of the New York State Office of Children and

Family Services; THE CITY OF NEW YORK, ADMINISTRATION FOR CIDLDREN'S SERVICES; WILLIAM C. BELL, individually and in his capacity as Commissioner of the Administration for Children's Services of the City of New York; DAVE R. PETERS, individually and in his capacity as Director,

State Central Register, New York State Office of Children and Family Services, Division of Development and

Prevention Services; JANE DOE 1, individually and

in her capacity as a Supervisor of the State Central Register; JANE DOE 2, individually and in her capacity as an

employee of the State Central Register; JOHN DOE 1, individually and in his capacity as a Supervisor of Administration for Children's Services; and JOHN DOE 2, individually and in his capacity as an employee of Administration for Children'S Services;

Defendants.

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NOW COMES the plaintiffs Barbara Finch, Carol Jordan, and Barbara Ortiz, and on behalf of all others similarly situated and for their Complaint against defendants state as follows:

INTRODUCTION

1. This civil action commenced by plaintiffs who are seeking injunctive and declaratory relief for defendants' policies, practices, and customs regarding the retention and/or publication, and the review and appeal process for indicated reports of child abuse or maltreatment recorded with the State Central Register of Child Abuse and Maltreatment.

2. These policies also result in undue and substantial delays in obtaining employment in the field of child care and the reunification of biological families, as the defendants' policies, practices and customs result in an unconstitutional impediment to employment and custody applications.

3. On February 12, 2009 this court re-opened discovery after it was learned that thousands of Amendment requests were improperly terminated. Discovery has ascertained that five different projects improperly aborted the Amendment Requests that had been made years earlier. Termination of these requests foreclosed future opportunity to have the reports reviewed either at the administrative review or at the Fair Hearing stage.

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4. Depositions have also disclosed that after the Finch filing, e-mails were destroyed and files were shredded to mask the illegal projects. In addition, in 2008 spreadsheet data that tracked the processing and status of Review Requests was deleted.

5. Declaratory injunctive and equitable relief are requested.

JURISDICTION AND VENUE

6. Plaintiffs bring this action against defendants to redress the deprivation of liberty and property rights secured to them by the Fifth and Fourteenth Amendments to the United States Constitution, and pursuant to 42 U.S.c. Sections 1983 and 1988.

7. Jurisdiction is founded upon 28 U.S.C. Sections 1331, 1343(a)(3) and (4) and the aforementioned statutory and constitutional provisions.

PARTIES

8. Plaintiff Barbara Finch ("Finch") at the time of the filing was a resident of the State of New York, City of New York. Since the filing plaintiff Finch has relocated and is now a resident of the State of Pennsylvania, City of Toby Hanna. On April 4, 2001, a report of excessive corporeal punishment and inadequate guardianship was called in to the New York State abuse and maltreatment hotline. On June 3, 2001, after a preliminary finding, plaintiff Finch became the subject of an indicated report on June 3, 2001 and this was registered in the Statewide Clearance Registry ("SCR"). On or about June 15, 2001, plaintiff Finch requested

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the amendment of the indicated report. On August 7,2003, more than two years after the requested amendment, an Administrative Hearing ("Fair Hearing") was held and the report was deemed unfounded and sealed. A new report was called into the Registry on February 25,2004. On November 1, 2004, the report was amended to "unfounded."

9. Plaintiff Carol Jordan ("Jordan") is a resident of the State of New York, City of New York. Plaintiff Jordan is the subject of a report indicated on October 15, 200 1. On December 21, 200 1 Jordan requested that the report be amended. A Fair Hearing was scheduled 22 months later. On August 16, 2004 the report was found not reasonably related to child-related employment.

10. Plaintiff Barbara Ortiz ("Ortiz") is a resident of the State of New York, City of New York. Unbeknownst to Plaintiff Ortiz, she had been the subject of an indicated report. The date the report was indicated is unknown to Ortiz. On or about May 23, 2003, after being advised that an inquiry had been made by a provider agency and that she was the subject of an indicated report, Ortiz requested that the report be expunged or amended. A Fair Hearing was scheduled for June 4, 2004, 13 months after the request. The Administrative Law Judge granted the Ortiz application to amend, and sealed the report.

11. The Defendant New York State Office of Children and Family Services ("OCFS") is delegated under the laws of the State of New York to maintain a Statewide

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Central Register of child abuse and maltreatment reports ("Reports").

12. The State Central Register ("SCR" or "State Registry"), is a separate department of OCFS and is delegated to maintain a state-wide Central Registry of names of individuals with indicated reports of abuse or maltreatment. SCR is delegated to process internal administrative review of indicated reports after a request is made by a Subject to amend or expunge the report and to send "retained" requests to Bureau of Special Hearings (BSH).

13. Defendant Gladys Carrion ("Carrion") (successor to John A. Johnson) is sued herein in her successor capacity as the Corrimissioner of the New York State Office of Children and Family Services ("OCFS"). Carrion has general supervisory duties to administer and comply with existing Federal and State laws and regulations and to establish policies, procedures and practices for the SCR dissemination of reports, internal administrative review procedures and timely referral of requests for amendment or Amendment of reports (collectively "Amendment Requests") to the Bureau of Special Hearing for Administrative Hearings ("BSH") for an Administrative Hearing ("Fair Hearing").

14. The BSH is the Agency of the State of New York charged inter alia with conducting due process hearings after it has received an Amendment or amendment request (collectively "Amendment") from the SCR.

15. Defendant Jeanne A. Sample ("Sample") is successor to Dave R. Peters ("Peters")

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and is sued in her capacity as the successor Director of the State Central Register, New York State Office of Children and Family Services, Division of Development and Prevention. Peters, during all times relevant herein, inter alia had general supervisory duties to administer and comply with existing Federal and State laws and regulations and was delegated to maintain the SCR, to timely conduct internal administrative reviews and to timely process and refer Amendment Requests to BSH for a Fair Hearing.

Class Action

16. This is a class action brought by the plaintiffs on their own behalf, and on behalf of others similarly situated pursuant to Rule 23 and 23(b)(2) of the Federal Rules of Civil Procedure. This action is a proper class action in that:

a. The members of the class are so numerous as to include all persons who are the subjects of indicated reports with the SCR and who have timely requested a "422" Amendment of the Report or who have requested a 424-a Amendment of the Report after an inquiry by an authorized provider or licensing Agency, and which Amendment Request is still outstanding or which Amendment Requests were improperly terminated after January 1, 2002 by the SCR. The size of the class is unknown at the present time, but it is believed to number in the thousands. Joinder of all plaintiffs is impractical.

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b. There are questions of law and fact common to the class, and the

claims of the representative party is typical of the claims of the class.

While there may be minor factual differences as to the status of

different class members, the denial to each class member of his or

her rights under federal law is due to specific courses of action on

the part of defendants. The legal issues common to the members of

the class may be stated as follows:

(1) Is the current delay of 8 - 12 months after a request to expunge an "indicated" report before a Fair Hearing is decided, constitutionally untimely?

(2) Is the current delay of 8 - 12 months for the issuance of a clearance to a prospective employer or licensing agency before a Fair Hearing is decided and a clearance issued, constitutionally untimely?

(3) Were the projects implemented between 2002 - 2007 that wrongfully terminated Amendment Requests without documentation an unconstitutional interference with the subject's liberty interest to pursue his/her livelihood.

(4) Is the State's policy and practice of terminating a subject's 424-a Amendment Requests by contacting licensing or employment agency to ascertain if the Agency was still interested in the clearance, an unconstitutional interference with the subject's liberty interest to pursue his/her livelihood?

(5) Was the Interest in Hearing Letter project that terminated requests by sending Notice of Hearings 18 months to a year after the Request for Amendment was made, an unconstitutional interference with the subject's constitutional liberty interest to pursue one's livelihood? .

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(6) Does the State's practice and policy to grant access to the Registry to child care or child protective Agencies, which access is used to screen employment and licensing applicants, constitute an unconstitutional stigmatization of those listed persons who are awaiting a requested Fair Hearing?

b. The representative parties will fairly and adequately represent and

protect the interests of all members of the class in that they are

adversely affected by defendants' actions. They are represented by

counsel experienced in litigating civil rights issues.

c. In addition, the defendants and their agents have acted on grounds

generally applicable to the class, thereby making appropriate final

injunctive and declaratory relief with respect to the class as a whole.

17. On August 8,2008, a class was certified by Han. Shira A. Scheindlin to include:

"all persons who are working or desire to work or to be licensed in childrelated employment who, now and in the future, are listed on the Statewide Central Register of Child Abuse and Maltreatment as the subjects of indicated reports that were investigated and indicated by a designated investigative agency, and who have timely requested amendment of the indicated reports and whose requests for amendment have not been disposed of."

THE NEW YORK STATUTORY SCHEME

IN REGARDS TO THE REPORTING AND RETENTION BY THE STATE CENTRAL REGISTRY (Social Services Law 422, 422-a; 424; 424-a)

The Initial Investigation After Call to the Hotline

18. In order to protect children from possible harm by those entrusted with their care,

defendants OCFS and SCR must maintain a seven day-per week twenty-four hour

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per day telephone hotline to accept reports from either mandated reporters or others of alleged child neglect and/or maltreatment. (Soc. Serv. L. Section

422(2)(a)).

19. When the allegation received by the hotline could reasonably constitute a report of child abuse or maltreatment, then together with a narrative summary, the call is transmitted to a local child protective agency for investigation.

20. Any calls from a mandated reporter must immediately be transmitted to a local child protective agency for investigation (Soc. Servo L.§422(2)(a)).

21. In New York City, ACS, is the local child protective service agency authorized to investigate allegations of abuse or maltreatment.

22. As such, ACS or the designated Local Investigative Agency ("LIA") must investigate and determine within 60 days, whether allegations of child abuse and/or neglect are supported by some credible evidence.· If so, the LIA informs the SCR that the report is "indicated" or "founded". The report is then maintained as an indicated report in the State Registry. Soc. Servo L.,§424(7); 18 N.Y.C.R.R. 432.3(k).

23. The LIA must also create and maintain a record regarding its investigation and its determination about whether a report of suspected child abuse or maltreatment is founded or not ("Record of Investigation"). Soc. Servo L. §424 (2); 18 N.Y.C.R.R. §432.3.

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Pre- Deprivation Appeal Process of Subjects of Indicated Reports

24. After a report is initially indicated, the subject is advised that he/she has ninety

days from receiving such Notice to request that the report be amended. This

request triggers the right to a fair hearing to determine whether the report should

be maintained on the Register and even if maintained whether it is relevant and

reasonably related to child-care employment or licensing. Soc. Servo L. §424-a(2)

( c); see also Soc. Servo L. §422(8)(a)(I).

25. If not timely contested the indicated report is disclosed to an authorized inquiring

licensor or employer. Soc. Servo L, §422-a(3).

26. If a timely request to amend a report is made, then SCR must immediately request,

in writing, the record of investigation and other information maintained by the

local child protective agency which was responsible for the investigation. Within

20 working days of receiving SCR's written request, the LIA must forward its

records, reports andlor other information to SCR. Soc. Servo L. §424-a(I)(e)(ii),

422(8)(a)(ii), 18 N.Y.C.R. §432.3( c )(7).

27. Within 15 working days from receipt of the Record of Investigation, SCR must

determine whether the report is supported by any credible evidence. Soc. Serv. L.

§424-a(1)(e)(ii) and 422(8)(a)(ii).

28. If SCR finds that no credible evidence supports the report, the report is either

expunged andlor sealed. Soc. Servo L. Section 422(8)(a)(iii) and (8)(e); and Soc.

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Servo L. Section 424-a(1)(e)(iii).

29. If the report is supported by some credible evidence, then within the same 15 day period used to determine the report's credibility, SCR must further determine whether the report is relevant and reasonably related to a future inquiring licensor and/or employer. If it is not, SCR is precluded from informing the employer or licensor of the existence of the indicated report but the Report is retained. Soc.

Servo L. §424-a(1)(e)(iv), 422 (8)(a)(iv).

30. If the report is indicated then OCFS within 90 days of the requested amendment conducts an ex-parte internal review to determine whether there is a fair preponderance of the evidence sufficient to indicate the Report. Soc. Servo Law,

§422(a)(J).

31. If internal administrative review does not amend or expunge, SCR informs the BSH to schedule a Fair Hearing within the 90 day period from the request to expunge. Soc. Servo Law., §422(8)(6)(J).

32. If an appeal has been requested, until the Fair Hearing is completed, SCR cannot disclose the listing to any prospective licensor or employer. Vahnonte v. Bane, 18 F.3rd 992 (2d CiT. 1994), In the Matter of Lee IT, 87 N.Y.2d 699 (1996).

33. Thus upon receipt of an inquiry, the State does not respond but remains silent.

34. Since where there is "no hit" a clearance is issued within 10 days, the State's prolonged silence for up to one year de facto discloses the listing.

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Statutory Mandatory Consulting of the List by Providers and Licensing Agencies

35. Except for certain designated agencies or persons who have statutory access to the

State Register, the records are confidential. Social Servo L., Sect. 422(4),

36. Certain licensing agencies, child care providers, adoption and foster care agencies

that are licensed to provide services to children, and who employ persons who will,

or do, have regular and substantial contact with children, must inquire from the

SCR whether the prospective licensee and/or employee is listed in the State

Registry. Soc. Servo L.§ 424-a(1)(a)(b).

37. Until the Agency receives a response to its clearance request, applicant, may only

be employed under supervision.

38. SCR has ten days from receiving such inquiry (SCR clearance forms) to determine

whether the prospective employee or licensee is the subject of an indicated report

in the SCR. Soc. Servo L., §424-a(l)(e).

39. If an indicated report exists, then within ten days a request must be made to the

local child protective agency for an investigative report. The local child protective

agency must within 20 days forward the records to SCR.

40. After an inquiry is made by a service or licensing agency, SCR must

simultaneously inform the subject of such inquiry and whether a report was

indicated or unfounded. Soc. Servo L. §424-a(2)( c). If the subject has not had a

hearing under SSL 422, upon such notice, the subject may within 90 days from the

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Notice, request an amendment or Amendment of the Report. Soc. Servo L., §424-

a(2)( c).

41. ' No later than 90 days after a request for a review, SCR must refer the Report to BSH to schedule a Fair Hearing,

42. There is no statutory time within which a Fair Hearing must be held.

Decision and Appeal from Fair Hearing

43. A decision must be issued within 60 days after the completion of 424-a Fair Hearing and within 90 days after a 422 Fair Hearing.

44. An adverse Fair Hearing decision may be appealed within four months by an Article 78 Petition (CPLR 7801 et seq.). The court reviews whether the decision of the Administrative Law Judge ("ALJ") is arbitrary and capricious.

45. While the indicated report does not automatically disqualify the applicant, a written record, as part of the application or license file must be maintained setting forth the specific reason why such person despite the "hit" was determined to be appropriate for employment or license. Soc. Servo L. §424-a(2)(a).

Retention of Report in the SCR

46. Without regard to the seriousness of the underlying acts, whether such constitutes abuse, or maltreatment, or whether the act is intentional or unintentional, once the "indicated" Report is retained, then the Report is maintained on the Registry for up to 28 years or until 10 years after the youngest child living in the household attains

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his/her 18th birthday whichever is earlier. Social Servo Law, 422(6).

Finch "Indicated" Report

47. On April 4, 2001 a maltreatment report was called in to the SCR hotline accusing Finch of excessive use of corporeal punishment and lack of guardianship in that she allowed her daughter Kenisha, 10 years old at the time, to be left unattended to wait for her school bus. It was alleged that Kenisha boarded her school bus nine blocks from where she normally gets on the bus. These allegations were denied by the plaintiff Finch.

48. On June 2, 2001 after investigation by ACS, the report as to corporeal punishment was deemed unfounded but as to lack of guardianship "indicated". On or about July 15, 2001, Finch requested that the Report be amended.

49. On February 6,2003,18 months after her request to amend and 15 months beyond the 90 day statutory time period to refer for a Fair Hearing, SCR after its ex-parte internal administrative review, denied plaintiff Finch's request to amend.

50. SCR then referred Finch's request to amend to the BSH for a Fair Hearing.

51. On March 13,2003, Finch received notification that a Fair Hearing before an Administrative Law Judge ("ALJ") was scheduled for May 15,2003.

52. On this first scheduled hearing date, ACS requested and received an adjournment of the hearing until July 22,2003. On that date the hearing was held and completed. The Administrative Law Judge by a decision dated August 7, 2003,

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found that maltreatment by inadequate supervision was not established by a fair preponderance of the evidence and that the "indicated" report would be amended to "unfounded" and sealed.

53. Plaintiff Finch's field of employment is working with children. Plaintiff Finch's major in college was in Early Childhood Education. Plaintiff's employment history included teaching at a Montessori school for seven years, and employment with ACS also for seven years working directly with children.

54. After the report was indicated in June, 2002, and before the report was sealed two years later, plaintiff Finch unsuccessfully applied for employment at Metro North Day Care at 310 East 102 Street, New York, New York as an Assistant Teacher. In January, 2002 Finch unsuccessfully applied for employment at a homeless shelter to work with mothers and daughters.

55. Upon information and belief Finch was denied employment because her name was listed on the State Registry as being subject of an indicated report. In September, 2001, less than two months after the birth of her grandchild Manny plaintiff' Finch applied for his custody. The Family Court denied the application to become Manny's foster parent in part due to this indicated report.

56. The two-year delay by the Talbot and New Alternatives for Children foster care agencies in placement of Manny with the Grandmother was because of the indicated report.

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57. In June, 2003, the Court, placed Manny with plaintiff Grandmother Finch.

58. Although the Fair Hearing had not been held, both the Court and the Agency at

that time determined that the indicated report was not reasonably related to plaintiff Finch having regular and substantial contact with her grandchild.

59. Manny continues to be in the custody and care of plaintiff Finch.

60. On February 25,2004, Finch's daughter called in a report to the hot line alleging

that Finch had abused the children in her care.

61. After investigation the report was indicated for inadequate guardianship.

62. On July 15, 2005 Finch requested a hearing.

63. On September 20,2004, the administrative review denied the request to expunge and the Amendment request was referred to the BSH for a hearing.

64. On November 1,2004, the ALl deemed the report "unfounded".

Ortiz "Indicated" Report

65. On May 22,2003 Ortiz was notified that she was the subject of an indicated report.

Prior to this time Ortiz who has four children, who has never had a history with ACS or the Family Court, was unaware that she was indicated with the SCR State Registry. Neither OCFS nor SCR have provided any documentation to support the Ortiz indicated report.

66. The notice of the indicated report was served after Ortiz in April, 2003 applied for an internship with Leake & Watts Services, Inc. Ortiz at the time was attending

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Audrey Cohen College for Human Services and this internship was part of the curriculum. The internship required that Ortiz work with children as a counselor. Due to the indicated report Ortiz did not receive the internship.

67. On July 30, 2003, OCFS acknowledged receipt of the request for a Fair Hearing and Ortiz was advised that an administrative review would be initiated.

68. Six months later on January 24,2004, Ortiz was advised that an administrative review was completed, and that her request to expunge the report was denied. Ortiz was further advised that a Fair Hearing would be scheduled. A Fair Hearing was scheduled for June 5, 2004. Prior to the hearing the ALJ determined that the reports were unfounded and the records were sealed.

69. As a result, during the period the Indicated Report was pending, Ortiz could not seek child-care related employment.

Jordan "Indicated" Report

70. On August 17, 2001, Jordan was advised that she was the subject of an investigation of medical neglect, of her kinship foster child, Tyasia.

71. It was alleged that between June and August, 2001, plaintiff Jordan violated a Court Order to take Tyasia to a cardiologist to examine the child's "heart murmur". In fact there was no court order. Jordan in May, 2001 had Tyasia's congenital heart murmur examined by a pediatrician who found the heart murmur "innocent". Jordan did not attend the medical appointments scheduled between June, 2001 and

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early August, 2001, due to her pregnancy and the birth of a child. The appointment with the cardiologist was required to complete adoption paperwork rather than for medical necessity.

72. On October 15,2001, Jordan received notice that after an ACS investigation, the Report was "Indicated".

73. On October 20, 2001, Jordan was advised that an inquiry had been made by a licensed child care agency as to whether Jordan is the subject of an indicated report.

74. On December 21,2001, Jordan exercised her right to appeal and requested that SCR amend the Report to "Unfounded".

75. After receiving no response to the December 2pt request, plaintiff Jordan on March 25, 2002 by correspondence again requested a hearing.

76. There was no response to this conununication until September 11, 2003. On this date, notice was given that a Fair Hearing was scheduled for October 9,2003. The ALI retained the Report but found the Report not reasonably related to employment.

77. In May, 2002 Jordan graduated from the College of New Rochelle, majoring in child psychology and education.

78. In August, 2003· plaintiff Jordan applied for employment as a Teacher's Assistant at a private school in Harlem, New York. Plaintiff Jordan was hired subject to the

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SCR clearance. When the private school ascertained that there was an "indicated

report" the offer of employment was withdrawn.

79. In June, 2003, Jordan applied for employment as an Assistant Supervisor in a

group home at the Children's Village located in Westchester County. Jordan was

hired subject to the SCR clearance. When Children's Village ascertained that

there was an indicated report the offer of employment was withdrawn.

80. Jordan was denied employment in her chosen field because her name was listed on

the State Registry as being the subject of an indicated report.

Projects that Wrongfully Terminated Class Members' Pending Amendment Requests

81. In 2004 there were approximately 5,000 to 10,000 Amendment Requests that had

been awaiting reviews for 3 - 7 years or even longer.

82. To address this enormous backlog, the defendants implemented five different

projects (collectively the "Projects") that wrongfully terminated thousands of these

outstanding requests.

83. Once these requests were wrongfully terminated the subject would never receive a

Fair Hearing under the SCR policy and practice of "once a hit always a hit".

84. According to CPS2 Hiller's testimony on May 4,2009, Requests are still

outstanding awaiting hearings on requests that were made years ago. These

individuals are subject to have their requests terminated by the Projects hereinafter

set forth.

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Project 1

Agency Data Base Withdrawal

85. Social Service law 424-a mandates that child-related employers or licensing agencies consult the SCR database prior to hiring or licensing an applicant to ascertain if the applicant is listed in the Registry.

86. Until the clearance is received the employer may hire an employee to work only if the employee is supervised.

87. However, for all practical purposes, an applicant will not be interviewed, much less employed or licensed, if listed, since virtually all child-related employers require clearance as a precondition for employment.

88. An individual listed on the Registry as the subject of an indicated report has two separate opportunities to receive a Review Hearing on their report. The subject of an indicated report can request a review of their report within 90 days of receiving notice of indication (referred to as a "422" request). If Subjects who elect not to avail themselves of the first opportunity, re advised that they may make a request within 90 days of receiving notice that a clearance has been requested by a prospective employer or licensing agency (referred to as a "424-a" request).

89. The agency clearance request is prepared on an SCR form referred to as a "3370".

The 3370 form is signed and submitted by the applicant together with a statutory $5 processing fee. The Agency to which the subject applied for either employment

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or licensure is listed on the form but does nat sign the form. The Agency is not a

party to either the SCR Administrative Reviews or the BSH Fair Hearings

conducted pursuant to §424-a. the subject is told that the 424-a hearing is ta allow

a clearance to be issued for the "above named agency" or a "later" inquiring

agency.

90. On August 12,2004 in support of the State's Motion to Dismiss, Roberta 1.

Frederick, Manager at the SCR, declared under penalty of perjury that there were

two separate opportunities to request an Amendment hearing. I At the time of this

Declaration Ms. Frederick was herself engaged in the Project of calling Agencies

and having subjects Amendment Requests terminated.

91. At Ms. Frederick's July 17,2009 deposition, she took a contrary view and testified

that the reimplementation of A WDB was possible in the event the SCR again

experienced backlog.

92. In the early 2000's and continuing after the February 27, 2004 filing of the Finch

case, thousands of 424-a Requests remained unprocessed by the SCR for 7 years or

more.

93. The SCR neither conducted an internal administrative review of these 424-a

]"Subjects of indicated reports have two separate opportunities to request the SCR to amend the reports from indicated to unfounded: first within ninety days after notification that the report was indicated, NY SSL§422(8), and second prior to disclosure of the existence of an indicated report in response to a request by a licensing or provider agency as discussed above, NY SSL § 424-a." (Frederick 8/12/04 Declaration, par. 22)

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requests nor referred them to the BSH for a Fair Hearing within 90 days as

required by the Social Service Laws.

94. Sometime after the Finch filing, the SCR undertook to clear this inordinate

backlog by instituting a project whereby the SCR telephoned the Agency listed in

the 3370 and asked the Agency if it was still interested in seeking clearance for the

applicant?

95. These calls were made by SCR director David R. Peters, SCR manager Roberta

Frederick, SCR Deputy Director John Saltzman, and CPS'S3 Brenda Jones and Jim

McGrath, amongst others. Such calls were made under the direction and

supervision of Director Peters, Chief Operating Officer Palumbo, and Managers

Frederick and Joyce.

96. Brenda Jones, a CPS who made some of the calls to the Agencies, described the

Project at her May 4,2009 sworn deposition as follows:

Q Now would it be fair to say that most of these requests that had been made by the agency, were years old?

A Yes.

Q And some of these people, correct me if I'm wrong, when you called

them, didn't know who you were talking about?

A Safe to say yes.

Q Because it had happened so long ago?

A Yes.

Q And wouldn't it be fair to say since these cases were so old, most of

2Prederick's August 12, 2004 Declaration was clearly misleading as Ms. Frederick had directed the Agency DB withdrawal project.

3Child Protective Specialist.

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these people who you called said no, we're no longer interested in a clearance that we requested four years ago?

A Yes, that's correct.

Q Did you ever get a response saying yes, we're still interested?

A. I couldn't recall that type of detail.

Q You don't recall if you got such a response?

A No. I do not recall if I did.

Q But you would agreed most of the, most of the calls resulted in people no longer being interested in that particular clearance?

A. Yes.

Q Okay. And these calls were made during the day or were they also made at night?

A I believe most were made during the day.

Q And when you got a response that, we're no longer interested, what,

if anything did you then do?

A They were no longer interested?

Q Yeah. You said it was a withdrawal?

A Yes.

Q When the agency said they were no longer interested in the clearance request that they had made, you then put in the Fair Hearing decision withdrawal?

A Yes.

Q But, if I may ask, this was not a fair hearing decision, though but you still put it into that category?

A Yes.

(Jones 38 - 39)

97. The applicant who submitted the 3370 was neither called nor advised that their

request had been withdrawn.

98. In 2004 SCR Director Peters gave Cathy Dufty, an SCR clerical employee, a list of

files that she was to pull from file cabinets during her night-shift from 12:00 p.m. -

8:00a.m.

99. These files all contained outstanding 424-a Requests.

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100. At the time Ms. Dufty was the night supervisor of the Abandoned Children's Hot

Line. Each night during this Project Ms. Dufty had her clerical employees pull

thousands of files from the file cabinets, pursuant to Mr. Peters' directions and

using the list provided to her by Mr. Peters. The files were then placed in a large

rolling cart and taken to Mr. Peter's office.

101. The following day Ms. Dufty was told to retrieve the cart from Mr. Peters' office.

Virtually all of the files which Ms. Dufty had rolled over to Mr. Peters' office the

previous day were returned in the cart. On the top of the cart, written on a piece of

paper, was the solitary word "shred". Ms. Dufty then took the cart with the files to

the SCR shredding room where the files were shredded.

102. Ms. Dufty described what she did in her sworn deposition taken on June 3, 2009:

Q Allright, Do you know who made the calls?

A I heard Dave on the phone a couple of times to the agency, but other than

Dave, I don't have any idea. I am sure he didn't make them all.

Q how many files did you eventually get back?

A I got all of them back.

Q So, you got thousands of files back?

A Yes.

Q And did you get them all back within a short period of time, a matter of days or weeks or did they stagger back to you over a longer period of time?

A No, they came back to me almost daily.

Q And from the beginning to end, from when you started getting these files back until- and we'll talk about how they were destroyed or shreddeduntil the end, when at some point this project stopped -

A Yes

Q How many files did you get back on a daily basis?

A It had to be at least a thousand.

Q On a daily basis?

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A Yeah, probably pretty close to that. However many I could fit in a cart.

They weren't fat ones.

(Dufty p. 29 - 31)

103. Ms. Dufty's instructions were to shred the files:

Q So, Mr. Peters said to you, we are going to call up these agencies and see if they are still interested, and if they are not, we are going to shred the files?

A Yeah, we are going to get rid of them.

Q We are going to get rid of the files?

A Yeah, we don't need to do anything with them any more.

(Dufty, p. 27)

A No, No, the only discussion we ever had was when Dave said to me that they were going to pull these files and call the agencies; that was the only discussion we had about what was going to happen.

Q And that the files would be destroyed?

A Yes.

Q why was he asking you about this?

A because I was supervising the temporaries, and he had me have them shred and pull the files.

Q so, the temporaries, their job was not to make the calls, but to shred after the calls were made?

A Right.

Q And you were, and stop me when I'm wrong, you were going to be

getting a list of all of the cases where the calls were made?

A No, I was going to get a list of the cases to be pulled.

Q To make the calls?

A To make the calls.

(Dufty, p. 28)

Q So, the files were turned to you. How were they returned, just in a

shopping cart type of?

A in a file, we have, if I

Q And were they marked somehow destroy, get rid of?

A Yeah, there would be like a paper on top saying shred, and actually

25

what he would do is, call me down to his office, because the abandoned infant hotline ran 2417, and I was in charge of telling, passing out the assignments I would go down to his office about 3:30 and I would take the cart back and it would be. these are to be shredded, and this, these over here are to be re-filed.

Q How do you know that the people in these files had asked for a

hearing?

A Because there was usually Valmonte and sometimes doc in there.

Q Docs?

A sometimes.

Q Right. So, in other words, there wouldn't be docs unless a hearing was requested and the docs were then requested from the local agency?

A if someone didn't ask for a hearing, there wouldn't be a file

anywhere.

Q I see. So, a file is only created when the hearing is requested?

AYes, whether it's 422 or 424.

Q So, you got these back with a piece of paper saying shred or - shred

or something else?

A Shred.

Q so what did you do?

A I would wheel it down to in front of the offices where the abandoned infants (workers) were sitting and I would assign the shredding to either one of the guys on 4 to 12 or one of the guys on midnight to 8.

(Dufty, p. 32-33)

104. Because of the unreasonable delay in processing the Amendment Requests=delays

of seven years or more in some instances=virtually all of the Agencies contacted

by SCR responded that they were no longer interested in seeking clearance for that

applicant.

105. Moreover, many of these Agencies were never even contacted, as evidenced by

thousands of files being delivered to Mr. Peters' office and virtually all being

returned to Ms. Dufty the next day. The SCR callers knew that the Agencies would

26

no longer be interested in the applicant since so many years had passed, so there

was no reason to even place the call.

106. When the Agency was called and responded that they were no longer interested,

the subject's Requests were entered into the SCR database as "withdrawn" or

"waived" .

107. When the Agency was not contacted, those Files were nevertheless also returned to

Ms. Dufty and entered as "withdrawn" or 'waived".

The Consequences to the Subjects of Requests Entered as "Withdrawn" or "Waived"

108. Under SCR procedures, the outcome of an SCR Administrative Review or BSH

Fair Hearing; (i.e, retained, amended, waived or withdrawn) is entered into a

computer drop-down window in the SCR Registry known as the ARI stage screen.

The outcome of a 424-a Request dictates the SCR's response to all subsequent

3370 inquiries for clearance. When the outcome of the Request has been entered

as "waived" or "withdrawn" under the SCR policy of "once a hit always a hit" a

"hit" letter is sent to the inquiring agency or employer, and the subject of the

Report may be forever barred from receiving a Fair Hearing on that Report.

Simultaneous Entry into The RJF or Excel Spreadsheet

109. In addition to maintaining the Registry, the SCR maintained an Excel spreadsheet,

known as the RJF Spreadsheet, which closely tracked the status of 422 and 424-a

Requests containing such information as the decision rendered at the fair hearing

27

as well as the dates that: the subject made the Request, the SCR requested

documents from the investigative agency, the SCR conducted it's administrative

review of the Request) and the Request was referred to the BSH for a Fair Hearing.

110. Simultaneous to entering "withdrawn" and "waived" into the Registry, the SCR

would enter "withdrawn" and "waived" into the RJFSpreadsheet.

111. However, in instances where the SCR deemed a subject's Request as withdrawn

when the Agency concerned no longer sought clearance for that subject) the SCR

entered "withdrawn"into the main SCR Registry entry for that Report, but entered

"Agency withdrew DB check" or "withdrawn" or "default" into the RJF

spreadsheet entry for that Report.

112. Under "once a hit always a hit" policy, all subsequent 3370 inquiries were

responded to with a "hit" letter. Most serious, the applicants having been deemed

to have withdrawn or waived their Amendment Request were permanently

foreclosed from receiving a Fair Hearing.

Project 2

Entries of Amendment Requests as "Withdrawn" without Proper Documentation Corroborating that Subjects in Fact Withdrew Their Requests

113. "Withdrawn", as used by SCR, refers to "indicated" individuals who, after

requesting an Amendment hearing and after receiving Notice of a Fair Hearing,

withdraw their Requests, usually in writing, prior to or at the time of their hearing.

28

114. When BSH receives a request to withdraw, the ALl, on the return date of the scheduled hearing, notes for the record the withdrawal and then issues a formal decision that the subject has withdrawn his or her request. Such a written decision is necessary not only to document the withdrawal but also to trigger the CPLR 7801, four-month right to appeal.

115. The ALJ decision of withdrawal is then transmitted to the SCR. The SCR, when acting lawfully, then enters into the Registry that the hearing was withdrawn, and makes a simultaneously entry into the RJF spreadsheet that the hearing was withdrawn.

116. However, sometime during 2003 and continuing well after the Finch filing, the SCR implemented an overtime project where out-of-house, former SCR Child Protective Specialist ("CPS") Grade 18's with prior experience in SCR database entries were asked to work on a project that entered outstanding requests as "withdrawn" (the "OT - Withdrawn" Project). These outstanding Requests were entered in the Registry as "withdrawn" although no ALJ decision documented such withdrawaL

117. This "OT - Withdrawn" project involved anywhere from 6 - 15 individuals over a period of several weeks.

118. SCR Manager, Michael Quinn placed files on the desks of SCR employees and verbally instructed them to enter "withdrawn"into the Registry for those files.

29

119. The files had been removed from file cabinets containing Requests that had

languished unprocessed for 7 years or more.

120. At the June 3,2009 deposition the project was described by Joseph Duffney, an

out-of-house Grade 18, who had worked on this OT Project:

Q But you're telling me that you were asked to complete and close out cases, by picking up a file and putting down waived or abandoned or - excuse me.

A. Withdrawn.

Q Withdrawn. Without looking to see whether or not there was, it actually

was waived or withdrawn?

A. Correct.

Q And you didn't find this strange, disturbing, unusual?

A I would say, no. I am not certain if that's the way I would describe it. I think if how I would describe the withdrawal project at one particular location, I voiced, and I'm don't sure how far up the chain of command it went, is why aren't we doing additional activities to identify the location of this individual?

Q so, were you told that these lists, these files that you had, were people who were not locatable, who they couldn't find, is that what you were told?

A. I am not sure exactly what the reason was, but we were told that they were to be withdrawn, and so that was my project for the day, so that's what I did.

(Duffney, p. 33 -34)

Q No. You didn't, you have no idea or you don't know or did not know at the time whether these people in those files that you were given, could not be located or not, you didn't know.

A. I did not know.

Q you did not know, but yet you were told to put down waived or withdrawn under a Fair hearing decision, when it never may have been waived or withdrawn by the subject, correct?

A I would not know, correct.

(Duffney, p. 36-37)

121. Many who participated in the OT-Withdrawal project, complained to their Project

30

Supervisors that it was improper to flag an Amendment Request as "withdrawn"

without proper documentation from an ALl, but their Project Supervisors told the

complaining Grade 18's that this project was pursuant to instructions of the SCR

Chief Operating Officer, Terry Palumbo, or the SCR Managers, Linda Joyce

and/or Roberta 1. Frederick.

122. Many refused to participate in OT - Withdrawal project despite assurances from

their Project Supervisors that the OT-Withdrawal project was being conducted

under the direction and supervision of SCR Chief Operating Officer Terry

Palumbo, or the SCR Managers, Linda Joyce and/or Roberta 1. Frederick.

123. Hundreds if not thousands of timely Amendment Requests were terminated by this

OT -Withdrawal Project.

124. Most egregiously, since the SCR database entry was "withdrawn", under SCR

policy of "once a hit always a hit," subsequent 424-a requests were responded to

with a "hit" letter. The applicant's right to a hearing was permanently foreclosed

by this OT - Withdrawal project.

Project 3

Entries of Amendment Requests as "Waived" Without Documentation Corroborating that the Subjects

In Fact Waived Their Requests

125. "Waived" as used by the SCR and BSH means that a subject, having requested a

hearing, and received a Notice of a Hearing, does not appear at the scheduled

31

Hearing and thus defaults thereby waiving the right to a hearing.

126. When the person defaults, the ALI notes the default and issues a decision that the

subject defaulted after being duly notified of a hearing and therefore waived the

right to a hearing",

127. The ALI default decision is then transmitted to the SCR which should then enter

into the Registry and the RIF Spreadsheet that the hearing was "waived".

128. However, sometime during 2003 and continuing until after the Finch filing, the

SCR implemented another overtime project where "out-of-house" Grade 18's with

experience in SCR data base entries worked on a project that terminated requests

as waived without the usual ALI decision (the "OT- Waived" Project) .

129. This "O'T - Waived" project involved any where from 6 to 15 employees who, over

a period of several weeks, were directed to enter "waived" for files which did not

contain an ALI decision or other documentation to support such entry.

130. These individuals had files placed on their desks by Michael Quinn and were

instructed to enter them into the Registry as "waived".

131. . The files had been removed from file cabinets selected by SCR Managers and

contained Requests that had not been processed for 7 years or more.

132. Mr. Michael Quinn, 40-year SCR veteran who supervised the O'T Project testified,

"Default" and "waived" are used here and by the SCR interchangeably, although the Registry database only provides a category entitled "waived"

32

on May 6,2009 that files were pulled from a list he received:

Q So you worked from a list, people worked from a list as to which files to

retrieve?

A Put in those drawers, yes.

Q to put into those drawers as to which files would be worked on?

A Correct.

Q But you do recall a list that was generated in regards to the withdrawal or default project that you worked during the overtime?

A Again, it was - I know that support staff had a list of numbers. They went into the files, pulled those cases, put them in here and the Grade 18s work on them.

Q did you see a copy of them? Did you have a copy of them?

. A No, I didn't need them.

Q And who were the people on support staff who received this list?

A I couldn't tell you. The support staff move in and out of there so much, I

don't know.

Q Where did they get the list from, who gave them the list?

A I never asked.

Q Was ita manager?

A I would assume, but that's an assumption. That's who usually generates those type of things.

(Quinn, p. 118 - 119)

133. Catherine Maldonado, who also worked on this OT Project, testified on May 5,

2009:

Q So, it was Mike Quinn who said, "Okay, everybody who's here Saturday, take some files out of this drawer and mark them default or withdrawn." Was it Mike Quinn who made that announcement?

A He would not have come in on a Saturday, because that was his day off.

So, I believe we - I want to say there was a piece of paper. Wendy was also second in command with Mike. I don't believe we received verbal, because we discussed it, and we wouldn't have had to discuss it amongst ourselves. If somebody was there actually giving us verbal. It believe there was a piece of paper that said that is what you're to do.

Q And how did you know or who decided whether to put down default or withdrawn?

A I'm pretty sure it was in the instructions.

33

Q I see. And how did you know what dates to put down for the hearing date, the decision date, stip date, when there was no documentation?

A We just used the date we were doing as everything, if there wasn't anything in the file.

Q But all of these files did not have a Fair Hearing decision.

A No, there were no Fair hearing decision.

(Maldonado, p. 56 - 57)

Q Did Mike Quinn ever tell you who gave him these directions to have this project? Did he mention that - you said it came from management. Did he mention Roberta Frederick, Mr. Peters or somebody else or Terry Palumbo?

A I don't remember if he mentioned any specific names. We all knew where it was coming from.

Q Where was it coming from?

A Dave and Terry.

(Maldonado, p. 59-60)

Q A Q A

and who told you that these people actually withdrew or defaulted? Mike Quinn

Do you know where he got that from?

He did not tell me, no, not specifically. We were instructed that, you know, it was a project from upper management and we didn't..

(Maldonado, p 61)

A One Saturday we all went in and discovered we were given a project, a different project that we hadn't done before. Thousands of files were put into the cabinet drawers in the room that we used, for the most part, and we were given instructions to take these files and default their Fair hearings and not to send any letters. We were not given any letters, e-mails, forms of kind which said that the Bureau of Special Hearings has said this request ID with this name and this case had defaulted. So, we had nothing to fall back on. All we had were these files with nothing on top of them. Most of them did not have stip packets in them. You are aware of what a stip packet isi'

5 A "Stip package" consists ofthe in vestigative file that the ALl would recei ve from the SCR prior to conducting a Fair Hearing. It is stipulated into the Fair Hearing records that the

34

(Maldonado, p 7-8)

134. Many dedicated SCR employees who were asked to make these entries complained that making such entries without documentation was wrong. The response they received was that this project was being conducted pursuant to instructions from the SCR Chief Operating Officer, Terry Palumbo, or from SCR Managers Linda Joyce or Roberta Frederick.

135. The OT- Waived project continued over several weeks. Hundreds if not thousands of timely made requests were terminated in this way.

136. Under SCR policy of "once a hit always a hit" the SCR responded to all future inquiries with a "hit" letter, and the applicant's right to a Fair Hearing was permanently foreclosed.

Project 4

CAR Cleanup Project

137. Prom late 2005 through 2006, the SCR was transitioningfrom the CAR computer information system to the new AIMS computer system, and data had to be transferred from the CAR system into the new AIMS system.

138. To properly transition from CAR to AIMS, CAR database entries had to be reconciled with the RJP spreadsheet which tracked the status of Requests.

139. When the RJF spreadsheet and CAR entries were at variance, then the hard copy of

investigati ve file is a true copy of what is contained in the file not that it is true or false. 35

the file would be reviewed and either the RJF spreadsheet or CAR would be

adjusted accordingly.

140. In instances where a file contained no documentation that a Request had

undergone either an Administrative Review or Fair Hearing, the CPS's were

nevertheless told to enter "withdrawn" or "waived".

141. At a deposition given on June 3, 2009, Lis} Maloney, former CPS 2 at the SCR

who participated in the CAR Cleanup Project testified:

Q Okay. Was it that there was a project where you closed out cases as withdrawn or waived, when there was no documentation from Fair hearings?

A Yes.

Q And who told you to please close out these cases as withdrawn or waived,

despite without going through the normal process?

A who was the supervisor who assigned me the -

Q Right

A Debbie Williams

Q And did you understand that this was part of a project?

A Yes.

Q And that this was part of this project that you were just talking about, where

you were cleaning up because you were transferring to a new computer?

A Yes.

Q And I think, did I mention from CAR to AIMS, is it?

A Yes.

Q Now, how as this assignment given to you? In other words, how did you get those files?

A I got a list from Debbie Williams, either - I think they were request Ids.

Q I see. So you got a master request ID, and it was just a blank. sheet of paper with -

A Yeah, it was just, you know, a list of request IDS

Q I see. And it jut went down the page, you know, different request IDs?

. A Correct.

Q Now, did the top of the page say please enter withdrawn or waived for these request Ids or were you verbally told to do that?

36

A verbally.

(P, 36 - 38)

142. Debbie Williams, an SCR Supervisor testified on June 3,2009 that she got her

instructions from one of the SCR Managers, either Linda Joyce or Roberta J.

Frederick.

143, Hundreds, if not thousands, of cases were improperly terminated in this manner.

144. Again, once there was an entry of "withdrawn" or "waived", under the "once a hit

always a hit" SCR policy, subsequent clearance requests received a "hit" letter, and

the subject was permanently foreclosed from receiving any review of their

indicated report.

Project 5

BSH Interest in Hearing Letters that Terminated Outstanding Amendment Requests

145. When the SCR retains a report after conducting its internal review pursuant to 424-

a, the SCR must schedule a Fair Hearing withing 90 days of the date that it first

received the Amendment Request, See §424-a(2)( c).

146. In early 2003 there were thousands of Amendment Requests that had been referred

to BSH for which a Fair Hearing had not been scheduled. These Requests were

several years old.

147. In 2003 and continuing after the filing of Finch, the BSH implemented a project

where letters were sent to individuals whose hearing requests had been pending for

37

years, inquiring if the person was still interested in having a Fair Hearing. These "Interest in Hearing Letters" (IHLs) included a questionnaire in which the subject, by checking off the applicable box. indicated either that they still requested a hearing or that they wished to withdraw their Request.

148. The subject was then asked to return the questionnaire.

149. While the precise number is unknown, thousands of IHL letters were sent.

150. If the subject checked the box "I would like to withdraw," the hearing was then terminated.

151. Of more than 5,000 IHL letters that were sent, less than one hundred recipients checked off the "not interested" box and returned the questionnaire. In other words, less than one (1 %) percent of the IHLs were returned as withdrawn.

152. As requests had been made years earlier, thousands of recipients of the IHL did not respond. The IHL did not apprise the recipient that withdrawal meant that they are likely to be unable to secure child-related employment as long as they are listed.

153. If the subject checked the box that signaled their desire for a hearing, a hearing was scheduled.

154. Those who requested hearings had new hearings scheduled. However, Notice of Hearing was sent 3 - 9 years after the subject made their original request.

155. Nearly 20% of those who were sent the IHL did not receive the Notice of Hearing as they had since moved from their previous address.

38 .

156. Many did not respond to the "Notice of Hearing" simply because the substantial

delay in receiving a hearing had led them to seek work in other fields and they did

not understand and were not told the importance and consequence of not appearing

at the scheduled hearing.

157. Those who did not respond to a follow-up Notice of Hearing were entered into the

SCR DB system as "waived". Under the "once a hit always a hit" policy these

individuals were not entitled to a name-clearing hearing when a new clearance

request was made.

Hundreds, if Not Thousands of 3370's Were Never Processed at All

158. In 2003 and continuing until after the filing of Finch, thousands of 3370 clearance

request forms received by the SCR never were processed. The 3370 form is

mailed by the applicant and includes a $5 statutory required fee. The SCR retained

the fee but did not process the 3370 request.

159. These 3370's remained stored and unprocessed in file cabinets. Later, many were

found in garbage cans.

160. Debbie Schwenke, a CPS 2 who worked at the Registry for 15 years, testified on

July 16,2009:

Q So there was a discrepancies between what went into the front door and what got to the floor?

A Yeah.

Q And there were fewer cases that went to the floor than came into the front door?

A Yeah, by a lot

39

(Schwenke, p. 24)

A I found, and I am going to say however many is in this, I found this many clearances in a drawer that were months and months old.

Q Okay, so you are holding up two, your fingers and about seven, or is

it seven inches?

A Well, you are a man so

Q I'll say seven inches?

A I found that many and I called Dave at home because it was night and he wasn't there, and I said you're not going to believe this. The next day.

Q how many were in those seven inches, over?

A I don't

Q Over a hundred?

A Over a hundred

Q Over 200 or you don't know?

A That was just the first set that I found. I started finding batches like that in garbage cans, in the abandoned infant room. I only speak the truth and this is why I am not at hotline anymore.

A Okay. So you found a batch of these six - seven inches stacks all over the place, including the garbage can?

A Yes.

Q Which were just not processed. They came in through the front door and they never made it to the main room?

A Yep. We've got a problem, so we were narrowing the problem down and then I discovered, because I knew nothing, I then when I was in the mail room learning. I saw that people were sending in money, like real money not checks, but cash.

Q You mean the $5 for the processing?

A Yes, okay did you already hear this story?

(Schwenke, p. 27-28)

161. The failure to process these 3370's caused people to lose their fundamental

constitutional liberty interest to pursue their livelihood.

Shortly After the Finch Filing, E-Mails and Records Relating to These Projects were Deleted

40

162. Shortly after the February 27,2004 filing of Finch v. New York State, Terry

Palumbo, the Chief Operating Officer of SCR sent an e-mail to the SCR Managers

. requesting that they attend a meeting.

163. The subject line of the e-mail was coded in a way so that the purpose or nature of

the meeting was not identified.

164. In addition to Ms. Palumbo, Managers Roberta J. Frederick, Wendy Reeves and

Debbie Schwenke attended the meeting.

165. At this meeting, three file folders bearing the named-plaintiffs, Barbara Finch,

Barbara Ortiz and Carol Jordan, were handed out to those in attendance.

166. The Managers were then instructed by Ms. Palumbo to "get rid" of all files,

records and e-mails regarding the Finch litigation.

167. The Managers were then told by Ms. Palumbo that all future e-mails and

communications regarding the Finch litigation would use the same non-identifiable

coded subject line so that future Finch communications could not traced. Ms.

Palumbo understood that her instructions would impede the Federal Rules

governing discovery.

168. Debbie Schwenke who attended the meeting described the meeting at her July 16,

2009 deposition:

A There was a meeting. I was brand I was brand new it was like in the very beginning of being a 23 with Barb Yeiser in the front door and I got a meeting notice with a weird subject and I don't remember what it, it wasn't meeting it just said, it didn't say birthday party or

41

something like that, it said something and we, we had to go to the big conference room where the Tuesday Thursday meetings were held and we went there and Linda Joyce wasn't there, and Linda was my direct supervisor and it was me, Barb, Terry, Bobby, Wendy Fischer.

Q What's Barb's last name?

A Bobby is Frederick.

Q Oh, oh, Roberta Frederick.

A And she said she had just been, Terry said that they had just been served, which I'm assuming must be you.

Q Right?

A A lawsuit where they were named and I guess there were two cases,

maybe three, anyway she said went (sic) I was going to hand out these cases to us and then went I was going to collect them at the end and that we were to look at them and see if the names rang a bell, and if we had anything having to do with it in our e-mails to get rid of it, get rid of the e-mails, and you know me a little by now, me being me, it was during Martha Stewart, this' is why I remember this meeting, I said isn't this kind of like what happened with Martha Stewart and I was never asked to come back to the meeting, and the other thing was, we were all given folders and they were like I don't even know the color it was a special color folder and she said from now on whenever we are going to have a meeting about this topic, this, whatever it was in the subject line was going to be the subject, and that we weren't to talk about it anymore, I was brand new so I had no e-mails, again I had never been in front door or done anything so I knew I had no e-mails to destroy, and I was never, I never heard about you guys again.

(Schwenke, p. 40-42)

Q So let me ask you this, were the people there asked to get rid of or to shred e-mails that had to do with these people regarding the lawsuit but you don't recall the exact names of the people is that correct?

A Yes that is correct.

Q And people were told to check their e-mails and if there was anything about the case or these people that they should shred those e-mails, correct?

A Correct, and then I asked about discovery and Martha Stewart.

Q And then you mentioned this is Martha Stewart and?

A Is this discovery and I was given a look and never asked back and I

42

never heard another word about it.

Q When you say discovery, that's sort of a legal term?

A I know I used it, I used it.

Q so you used the legal term?

A I used the legal term

(Schwenke, p. 44-45)

169. Thereafter, e-mails regarding the Finch litigation and the Projects were deleted and

destroyed. According to IT personnel, the e-mails during the period in which these

projects were under taken, 2003 - 2007, cannot be recovered by the back-up

recovery systems. Upon information and belief there was no litigation hold placed

on those e-mails.

Data in the RJF or Administrative Review Spreadsheet Was Deleted

170. In 2008, 4 years after the Finch litigation was filed, the data on the RJF

spreadsheet that tracked the status of Amendment Requests, the timeliness of the

reviews and the removal of Requests by "withdrawal projects" was deleted from

the SCR database system.

171. This RJF spreadsheet, using letter codes, was a tracking mechanism to monitor at

anyone point in time the status of specific Amendment Requests (i.e. D = 90 days,

Valmonte letter sent, E = Awaiting County Documentation, J2 = referral to Fair

Hearing, N - FH process completed, etc.)

172. Under the Code "C", the spreadsheet tracked Requests that were completed as a

result of a "withdrawal projects".

173. The defendants deleted this vital and relevant data from the RJF spreadsheet

43

despite being aware that Finch was filed individually and on behalf of others

similarly situated, and that Finch challenged the delays in the processing of

Requests.

174. The deletion of the data on the RJF spreadsheet avoids disclosure of the precise

number of outstanding Request at the time of the Finch filing and also avoids the

disclosure of the number of Requests that were improperly terminated by these

Projects.

175. The deletion of the data on the RJF spreadsheet also avoids the disclosure of which

Amendment Requests that are outstanding for two years or more.

176. The SCR intentionally and deliberately deleted the e-mails and the data on the RIF

spreadsheets with the unlawful aim of obstructing discovery in this case.

424~a Agencies Have Been Given Access to the Registry and Names of Subjects Whose Hearings are Pending are Subject to Improper Disclosure

177. Except for limited access to certain designated entities including Enforcement

Agencies or protective services, listings on the Registry are confidential.

424(4)(A) a-z.

178. Some of the designated 422 Agencies are also 424-a Provider Agencies that are

child-care related employers or licensing agencies. These provider and licensing

Agencies have used their access rights as a 422 agency to access the Registry to

screen-out 424-a applicants they considered for employment or licensure. Instead

44

of following the required protocol of submitting 3370s, these Agencies access the Registry directly to screen their employment applicants.

179. In violation of Valmonte, the names of people whose Amendment Requests are still pending are regularly disclosed to these 424 Agencies.

180. Defendants Carrion and Sample are well aware of this security breach but have taken no measures to safeguard the Registry from such unlawful access.

The Constitutional Violations

181. Class members have in the past and continue to be subjected to or are imminently threatened by a pattern and practice of undue delays in processing Amendment Requests and/or illegally terminating Requests.

182. Successor Defendant Carrion, Commissioner of OCFS knows or should know that Amendment Requests were wrongfully terminated during the years 2003 - 2007. Carrion has taken no steps or measures to correct this serious constitutional violation.

183. Successor Defendant Jeanne A. Sample, Director of the SCR, knows or should know that Amendment Requests were improperly terminated during the years 2003 - 2007, but has taken no steps or measures to correct this serious constitutional violation.

184. The mandatory requirement to consult the Registry has de facto created the issuance of a clearance as a pre-condition for employment.

45

185. There continue to be delays of 8 - 12 months and more in issuing 424-a clearances while Amendment Requests are processed.

186. Over fifty percent (50% )of those who are listed and request an Amendment are eventually exonerated.

187. Thousands of Requests that were made years ago continue to await hearings.

Current class members are subject to have their Requests terminated at any time by anyone of these Projects.

188. These wrongful termination of Requests, prolonged delays and unauthorized disclosures constitute a specific deprivation of the constitutional liberty interest of the freedom to pursue child-related employment or licensure.

189. Successor defendants, Carrion and Sample, fully aware of the statutory and constitutional requirement to afford a timely due process hearing have nevertheless, by policy, practice and custom, disregarded their duty by failing to supervise and process requests for hearings in a constitutionally timely manner.

190. Successor defendants Carrion and Sample know or should know that 424 Agencies have improperly accessed the Registry to pre-screen employment or licensing applicants, resulting in an unconstitutional stigmatization.

191. Defendants know or should know that wrongfully terminating Amendment Request and/or causing a substantial delay in scheduling hearings and/or disclosure of listings before a hearing is completed is a substantial impediment to

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employment or licensing opportunities.

192. As a result of defendants' actions, plaintiffs Finch, Jordan and Ortiz and the class

as certified by this court, continue to be subjected to a practice and policy which

places an unconstitutional burden on the fundamental liberty interest of the

freedom to pursue one's livelihood.

REQUESTED RELIEF

First Cause of Action

(Failure to Timely Schedule Pre and Post-Deprivation Hearings)

193. Plaintiffs as against the defendants State, Carrion and Sample repeat, reiterate and

reallege each and every allegation contained in paragraphs numbered "1" through

"192" inclusive with the same force and effect as if set forth at length herein.

194. The actions and failure by each of the defendants in failing to timely schedule a

pre- or post-deprivation hearing after a subject has been placed on the Registry

constitutes an unlawful and unconstitutional deprivation of plaintiff's liberty and

property rights without due process of law in violation of the Fifth and Fourteenth

Amendments to the United States Constitution.

Second Cause of Action (Failure to Timely Issue Clearances)

195. Plaintiffs as against defendants State, Carrion and Sample repeat, reiterate and

reallege each and every allegation contained in paragraphs numbered "1" through

"19r" inclusive with the same force and effect as if set forth at length herein.

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196. The actions and failures of each of the defendants in inordinately delaying the

issuance of clearances to those who have been listed and are awaiting timely

requests to amend constitutes an unlawful and unconstitutional deprivation of

plaintiffs' liberty and property rights without due process of law in violation of the

Fifth and Fourteenth Amendments to the United States Constitution.

Third Cause of Action

(Wrongful Termination of Amendment Requests)

197. Plaintiffs as against defendants New York State, Carrion, and Sample repeat,

reiterate and reallege each and every allegation contained in paragraphs numbered

"1" through "196" inclusive with the same force and effect as if set forth at length

herein.

198. The actions and failure by each of these defendants in wrongfully terminating

pending Amendment requests constitutes an unlawful and unconstitutional

deprivation of plaintiff class members' liberty and property rights without due

process of law in violation of the Fifth and Fourteenth Amendments to the United

States Constitution.

Fourth Cause of Action (Wrongful Disclosure of Registry Listings)

199. Plaintiffs as against defendants New York State, Carrion, Sample and Peters,

repeat, reiterate and reallege each and every allegation contained in paragraphs

numbered "1" through "198" inclusive with the same force and effect as if set forth

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at length herein.

200. The actions and failure by each of these defendants in allowing employment and

licensing agencies access to the Registry without submitting a 3370 clearance

request constitutes an unlawful and unconstitutional deprivation of plaintiff class

members' liberty and property rights without due process of law in violation of the

Fifth and Fourteenth amendments to the Unites States Constitution.

Declaratory and Injunctive Relief

201. Plaintiffs and the class respectfully pray thatthis court:

a. Determine this action to be a proper rule 23(b)(2) class action; and

that the entitled class be amended to include those subjects whose

requests for hearings were improperly "disposed of' including

Projects that terminated Requests identified as:

1. Project 1 • Agency Database check Withdrawal. The SCR contacted the inquiring Agencies rather than the subject of Reports to ascertain whether the Agency remained interested in clearance requests initiated years earlier. When most or all of the agencies were no longer interested, the subject's review request was entered into the SCR Registry and RJF Spreadsheet as "Withdrawn".

11. Project 2 • Entries of Review Requests as "Withdrawn". The SCR flagged review requests as "withdrawn" without documentation that the subject in fact Withdrew his or her request.

111. Project 3 • Entries of Review Requests as "Waived". The SCR flagged Review Requests as "Waived" without documentation that the subject in fact Waived their request.

IV. Project 4· CAR Cleanup Project. During the transition from the

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CAR to the AIMS information system, Requests that could not be reconciled with the DB entry, the RJF Spreadsheet and the subject's file, were deemed "Withdrawn" or "Waived".

v. Project 5 - BSH Interest in Hearing Letters that terminated outstanding Review Requests. In another effort to reduce backlog, the BSH sent letters to those who had waited years for hearings. When the subject either failed to respond to the letter or failed to appear at the hearing, the subject's Request was deemed "Withdrawn" or "Waived".

Under the SCR policy of "once a hit always a hit" subjects whose hearings were terminated under these projects were not entitled to a hearing if a future 424-a clearance request was made. The Request was deemed "Withdrawn" or 'Waived".

(Collectively "Projects")

b. Grant a temporary and permanent injunction, and enter a declaratory

judgment against the policies and practices of defendant New York

State that fail to provide a timely pre-or post-deprivation Fair

Hearing as unconstitutional;

c. Grant an affirmative injunction directing that those subjects whose

Amendment Requests were terminated by the "Projects" have their

requests reopened and a hearing promptly scheduled.

d. Grant an affirmative injunction directing that clearances to those

who have been listed and who are awaiting timely amendment

reviews, be issued within 35 days from the date of the Request for

Amendment.

so

e. Grant an affirmative injunction directing that "hit letters" not be issued to 424-a inquiring Agencies for those subjects whose Amendment Requests were terminated by the Projects as waived or withdrawn until after the subject has received a timely due-process hearing; and/or

e. That sanctions be imposed for defendant's deliberate spoiiation of evidence and that defendant's Answer be stricken; andJor adverse

inference be made that "withdrawn" or "waived" entries were

improperly entered; and/or an award of legal fees; WHEREFORE, plaintiff and her class respectfully pray that this court:

A. Determine this action to be a proper rule 23(b)(2) class action; and re-certify the members of the class to include those subjects whose requests for hearing were improperly terminated by Projects including those identified as:

1. Project 1 - Agency Database check Withdrawal;

11. Project 2 - Entries of Amendment Requests as "Withdrawn" without documentation that the subject in fact withdrew his or her request;

111. Project 3 - Entries of Amendment Requests as "Waived" without documentation that the subject in fact waived their request;

IV. Project 4 - CAR Cleanup Project, Waiver and withdrawal entries without documentation; and/or

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v. Project 5 - BSH Interest in Hearing Letters that terminated outstanding Amendment Requests.

B. Grant a temporary and permanent injunction and enter a declaratory judgment, declaring as unconstitutional the policies and practices of defendant New York State that fail to provide a timely pre-or post-deprivation Fair Hearing;

C. Grant an affirmative injunction directing that those subjects whose Amendment Requests were terminated by the Projects have their Amendment Request reopened and a hearing promptly scheduled.

D. Grant an affirmative injunction directing that clearances to those who have been listed and who are awaiting timely amendment review, be issued within 35 days from the date of the Request for Review.

E. Grant an affirmative injunction directing that a "hit letter" not be issued to an Agency for those subjects whose Amendment Requests were wrongfully terminated by the Projects as waived or withdrawn until after the subject has received a timely due-process hearing; and/or

F. Grant an affirmative injunction directing that security measures be put into place to prevent 422 preventative child-care agencies from having access to the Registry for employment or licensing clearances;

G. That sanctions for defendants' action in deliberately deleting e-mails and the RJF spreadsheet be imposed, including the striking of defendant's Answer, and/or

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adverse inferences and an award of legal fees

H. For such other and further relief as the court deems proper, including the award of

reasonable legal fees and costs of litigation.

Dated:

New York, NY August 11, 2009

Law Offices of Thomas Hoffman, P.C.

By: 5 /·7);,/.JY}1..(lS ~d/J

Thomas Hoffman - 2797 250 West 57 si. Suite 1020 New York, NY 10107 212581 1180

Attorneys for Plaintiffs

finchamnd 8.1 1. 09

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