high." Withrow, 421 U.S. at 58, 95 S.Ct. at 1470. Now that
discovery has been completed, this is the focus of plaintiff's
argument. Plaintiff contends that he did not receive a fair and
impartial hearing because of Dailey's actual bias or, at a
minimum, because of the risk that Dailey was predisposed to
rule in the Board's favor in light of the Board's procedures.
Specifically, plaintiff points to the fact that Vaughan
actually selected Dailey as the hearing officer after selecting
himself as prosecutor; that Dailey would contact Vaughan after
being selected as a hearing officer and engage in ex parte
conversations; that Dailey admitted that both he and chairman
Corbisiero have gone to Vaughan in the past for legal advice on
Board-related matters; and, finally, that Dailey could not
emphatically state that he did not have "even the remotest
psychological tendency to favor the position of the prosecutor
for the Racing Board." Dailey Depo. Tr. at 107.
There exists a presumption of administrative honesty and
integrity, Withrow, 421 U.S. at 47, 95 S.Ct. at 1464, and the
party claiming bias has the burden of proving it. Schweiker v.
McClure, 456 U.S. 188, 196, 102 S.Ct. 1665, 1670, 72 L.Ed.2d 1
(1982). Plaintiff has failed to meet this burden and defendant
is entitled to summary judgment. The mere fact that Vaughan
appointed Dailey, and then prosecuted the case before him, is
not necessarily unfair. Vaughan's recommendations were based
upon the subject matter and complexity of particular cases and
there is no doubt that Dailey possessed extraordinary
experience in this field. Moreover, the chairman actually made
the appointment, even though it was rare that he would not
follow Vaughan's recommendation. In addition, the fact that
Vaughan also selected the prosecutor, and in this case selected
himself, does not create a risk of unfairness because there is
no proof that Dailey changed his standards based on the
prosecutor before him. Simply because Vaughan has given legal
advice to Dailey in the past with respect to Board-related
matters does not suggest that Dailey is predisposed to rule in
Vaughan's favor when Vaughan appears before him. Since Vaughan
is counsel to the Board, it would be highly illogical if he did
not give advice to Board employees on Board-related matters.
Both Dailey and Vaughan are attorneys and Dailey testified that
he did not always follow the advice given by Vaughan. The mere
fact that Dailey found for the Board in each of the ten cases
Vaughan prosecuted before him is of absolutely no probative
value in this regard.
The evidence clearly establishes that upon being selected as
hearing officer, Dailey spoke with Vaughan. This is
insufficient to establish unfairness, even when Vaughan is the
prosecutor, because the matters discussed were either
procedural issues such as scheduling, or superficial inquiries
regarding the nature of the case. The merits of the matters in
question were never discussed and there is no suggestion that
Dailey was ever involved in the investigation of this matter.
In fact, plaintiff does not suggest that any improper
communications occurred in this case, only that the opportunity
for ex parte communications creates a risk of impropriety.
Notwithstanding this risk, plaintiff must come forward with
stronger proof to satisfy his burden. We note that this court
has always been subject to inquiries from attorneys regarding
the scheduling of matters. In an ideal world, such questions
would never be raised without opposing counsel's presence or
acquiescence. However, since the "ideal" often is impossible
when attorneys are involved, such communications do take place
and it would be extremely inefficient if courts were precluded
from simply stating that a matter is scheduled for a certain
date and time. Plaintiff can hardly demand more from an
administrative agency than is possible in the judicial system.
The final claim of bias is that Dailey could not
unequivocally state that he did not have "even the remotest
psychological tendency to favor the position of the
prosecutor." Plaintiff claims that this is clear evidence of
Dailey's bias. The extremely narrow manner in which the
question was phrased, however, does not lead us to believe
that Dailey's answer is entitled to the sinister interpretation
plaintiff attempts to attribute to it. Moreover, it is obvious
that every judge has preconceived notions based on past
experiences. As Chief Justice Rehnquist has stated: "Proof that
a Justice's mind at the time he joined the Court was a complete
tabula rasa . . . would be evidence of lack of qualification,
not lack of bias." Laird v. Tatum, 409 U.S. 824, 835, 93 S.Ct.
7, 13, 34 L.Ed.2d 50 (1972) (memorandum on motion to recuse).
The key question is whether these notions prevent the judge
from rendering a fair and impartial decision. Plaintiff has
failed to establish that Dailey is unfair. In addition, the
mere fact that only eight of one hundred ninety-nine cases
involving license suspensions that were argued before Board
hearing officers since 1984 found for the licensee does not
establish any inherent unfairness in the Board's procedures.
Obviously, the Board only brings a formal proceeding after
conducting an investigation. Moreover, if the prosecution
prevailed on only fifty percent of its cases, as plaintiff
seems to suggest should be the result, the Board undoubtedly
would be facing much more serious challenges to its procedures
than plaintiff is raising.
In conclusion, we find that the Board's procedures did not
violate plaintiff's due process rights. In addition, plaintiff
was able to present two challenges to the Board's actions via
article 78 proceedings, although neither was successful, before
being suspended. Notwithstanding this conclusion, however, we
recognize that the procedures employed were hardly perfect. It
obviously would remove any specter of impropriety if
independent administrative judges or arbitrators could be
appointed. Unfortunately, such a policy might strain an already
overburdened state economy. However, as we previously noted,
see supra note 2, an Executive Order signed by Governor Cuomo
on December 4, 1989 attempts to improve the procedures
available in administrative proceedings. In compliance with
this order, we were informed at oral argument that the Board
now has a strict division of labor between prosecutors and
hearing officers. While there was never a mix of prosecutorial
and adjudicative responsibilities in the same proceeding, now
the roles are not mixed even in separate proceedings. While
this policy may alleviate some of the concerns of licensees, it
does not change our conclusion that even without such a policy,
plaintiff's due process rights were not violated.
For all the foregoing reasons, we find that defendant
Corbisiero is entitled to summary judgment. The clerk will
enter judgment for the defendant.