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In re Malone

November 23, 2005


On appeal from a Final Administrative Action of the Merit System Board.

The opinion of the court was delivered by: Wefing, P.J.A.D.



Argued October 12, 2005

Before Judges Wefing, Fuentes and Graves.

This matter commenced as a disciplinary proceeding when Woodbine Developmental Center sought to suspend Monica Malone and eight other individuals following the death on May 31, 1998, of sixty-one year old G.C., a developmentally disabled individual who resided at Woodbine. In addition to his profound developmental limitations (according to his records, G.C. had a mental age of approximately seven months), G.C. would compulsively ingest inedible objects or substances. In individuals who have a mental age of two years or more, this condition is referred to as Pica. Because of G.C.'s profound limitations, he did not fit within the diagnostic criteria of the Diagnostic and Statistical Manual IV (DSM IV) for Pica, and he was not listed on the Pica registry Woodbine maintained for its residents. There had been earlier incidents, however, of G.C. consuming items such as a rubber glove and hard plastic.

On the afternoon of May 31, 1998, G.C. was left alone for a brief period and was somehow able to get possession of several latex gloves. When an aide returned to the room, G.C. was found slumped in his wheelchair, having choked to death.

Following an investigation into this incident, Woodbine sought to suspend the following individuals: Tereatha Riley, the Habilitation Plan Coordinator who headed the interdisciplinary team responsible for developing a plan for G.C.'s care; Delores Basco-Berenfeld, the head nurse in G.C.'s cottage; Constance Weidner, a Supervisor of Professional and Residential Services, who supervised three cottages, including G.C.'s; Noel Turner and Lorena Shaffer, both Assistant Supervisors of Professional and Residential Services; Cornelia McNear, Head Cottage Training Supervisor, the senior manager in G.C.'s cottage; Betty Wills, Cottage Training Supervisor; Edneldor White-Fazenbaker, Behavioral Modification Program Technician; and Monica Malone, Staff Clinical Psychologist.

Ms. Malone has been employed at Woodbine since 1984. She was assigned responsibility for G.C.'s cottage in January 1998, five months prior to his death. She was charged with having failed to develop an intervention plan to address G.C.'s Pica behavior.

Ms. Malone challenged her threatened suspension, as did the other named individuals. She retained Steven Wallach, Esq. to represent her in conjunction with the proceedings that followed in the wake of G.C.'s death and signed a retainer agreement under which she agreed to pay for Mr. Wallach's services at the rate of $250 per hour.

The charges against these nine individuals were heard together in the Office of Administrative Law, and the hearings took eleven days to conclude. During the course of those hearings, Ms. Malone testified that G.C. did not fit within diagnostic criteria for Pica. She noted that his mental age of seven months placed G.C. at the oral stage of development. She also testified that in view of his mental age, any behavior modification program would be inappropriate. There was no testimony presented that contradicted that of Ms. Malone.

Following the conclusion of these hearings, the administrative law judge issued a detailed written opinion in which he concluded, inter alia, that the charges against Monica Malone were not substantiated, and he directed they were to be "dismissed with restitution and attorneys fees in accordance with the regulations." The matter was then presented to the Merit System Board, which issued an order on January 29, 2003, in which it found that Ms. Malone's suspension had not been justified and directed that she be awarded back pay, benefits, seniority and counsel fees "pursuant to N.J.A.C. 4A:2-2.12."

Ms. Malone submitted an application to be reimbursed for her counsel fees, which had totaled $57,071.04 and which she had paid in full. Her attorney, Mr. Wallach, submitted a certification as to his services and noted in that certification his unique qualifications. Mr. Wallach has both a Masters degree and a Ph.D. degree in clinical psychology from Purdue University. He also has actual clinical experience, having completed an internship in clinical psychology at Vanderbilt Medical Center. After he obtained a J.D. from the University of Chicago Law School and passed the New Jersey bar exam, Mr. Wallach served for six years as a deputy attorney general representing the agency then known as the New Jersey Division of Mental Retardation. For the next several years, Mr. Wallach was Deputy Attorney General in Charge of Litigation. He later entered the private practice of law and in 1985 was certified by the New Jersey Supreme Court as a Civil Trial Attorney. In her application, Ms. Malone noted that she had been in the process of completing her doctoral degree when she was suspended and that she had retained Mr. Wallach because imposition of any discipline could have jeopardized her prospects of becoming licensed in New Jersey.

Woodbine Developmental Center objected to the fee request, asserting that Mr. Wallach's fees should be computed at the rate of $200 per hour under N.J.A.C. 4A:2-2.12(c)3. The Merit System Board concluded that Mr. Wallach had "provided insufficient information to justify awarding him counsel fees at the requested hourly rate of $250." It also noted that the matter had involved "several days of hearing[s] with ...

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