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committee on open government

Justice Must Be Done, And SEEN To Be Done

Editorial for October 19, 2018

Justice Must Be Done,
And SEEN To Be Done

The Freeman’s Journal – Joseph Zupnik stands for his sentencing Sept. 12 in Otsego Town Court.

The truism, “not only must Justice be done; it must also be seen to be done” – actually, it’s a famed quote from a 1924 British legal case – should apply to court proceedings and – if credibility is to be maintained – to democratic government generally.
With intent interest, the citizens of Otsego County have observed the wheels of justice turn since Memorial Day Weekend 2016, after it surfaced that a resident of Focus Otsego, identified only as M.P., had been left sitting in a chair, largely untended, for 41 hours.
In the subsequent months, four aides and LPNs responsible for M.P.’s care faced criminal charges and were convicted. The state Attorney General’s Office then took up the case, and brought nine charges against two top executives at Focus Healthcare, the Rockland County corporation that owned former county nursing home in Index, Town of Hartwick.
The Focus CEO, Joseph Zupnik, and the financial officer, Daniel Herman, were found guilty of one count of neglect, a misdemeanor, on Sept. 12 in Otsego Town Court. On Oct. 10, Town Justice Gary Kuch fined each of them $1,000 and sentenced each to 250 hours of community service. (The state has also fined the men $1 million, which they will split.)

So far, the proceedings have been transparent. Now, it appears the public is limited to what it can learn about the final step – how and where the 250 hours will be served.
The defendants’ lawyers asked that the men fulfill their obligation near their homes, Zupnik in Rockland County, where he is an EMT, and Herman in New Jersey.

The attorney general’s prosecutor, Kathleen Boland, argued the responsibility should be fulfilled in Otsego County. Judge Kuch sagely observed: “Doing community service at something you love doing – it doesn’t make any sense to me.”
However, he noted court rules prevent him from even making a recommendation. That decision is now in the hands of Alternatives to Incarceration, which has been administered under contract with the county since April 2011 by the Catholic Charities chapter, based in Oneonta.
The director, Ameen Aswad, will immediately tell you he can’t talk about specific cases, but he said that, generally, he assigns defendants referred to him to tasks within the county. The exception can come in cases where a guilty party was visiting for a short period from somewhere far away.
The nursing home’s Family Council has expressed no preference about where the community service should be done, according to its secretary, Bill Hayes.
In a letter to Kuch, Hayes and his wife, Betsy, Family Council chair, urge the men serve their time in “a residential facility’s laundry room, processing soiled garments and the equivalent of the ubiquitous brown washcloths they ordered for residents’ personal hygiene.” However, Bill Hayes said the couple has no firm opinion where the service should be, either.
Here’s another view: The case occurred in Otsego County; the community service should be done in Otsego County. Justice that can’t be observed is justice taken on faith. Is that good enough?

Be that as it may, Aswad said that Alternatives to Incarceration – it is overseen by a 19-person advisory board that includes police, judges, people from community services agencies, even a representative of the college – hasn’t made public what service culprits are required to perform or where.
The Committee on Open Government, which provides advice on the state’s Freedom of Information Law, says that court records are specifically exempt from FOIL. But if, in fact, Alternatives to Incarceration is a county agency – like, for instance, the probation department – it would be subject to FOIL.
There’s no reason why it should get to that.
There are differences of opinion on Zupnik and Herman’s community service. Given the high profile and emotions excited by M.P.’s case, it might make sense – and this may be argued otherwise, too – to allow the culprits to fulfill their obligation without publicity.
This is certain: When it’s over, there should a public accounting. The Alternatives to Incarceration board owes that to the public, for its own credibility if nothing else.
Not only must justice be done; it must also be seen to be done.

Click Here to read report on the October 10 sentencing of FOCUS executives Joseph Zupnik and Daniel Herman in Otsego Town Court.

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