Background
William Fasano served as superintendent of Bellevue and Fox Point state parks for the Delaware Department of Natural Resources and Environmental Control (DNREC). After a GPS tracking device flagged a state vehicle he drove on a day off for speeding, DNREC launched an investigation. When initially confronted, Fasano denied being the driver and blamed another employee. After DNREC produced proof he had been driving, Fasano admitted it and attributed his earlier denial to a dissociative episode linked to post-traumatic stress disorder. DNREC escalated from a proposed three-day suspension to recommending termination, citing the dishonesty, three unauthorized trips in a fleet vehicle to Goodwill, alleged GPS tampering, and alleged misuse of a state computer for a personal video-trading hobby. Fasano disputed these charges; DNREC ultimately conceded that the GPS disabling and computer misuse allegations were unsupported. After a pre-decision meeting, DNREC’s Secretary terminated Fasano’s employment effective immediately.
Fasano filed a dual appeal with the Division of Human Resources and the Merit Employee Relations Board (MERB). The DHR dismissed his appeal as untimely. At the MERB proceedings, a Department of Justice (DOJ) attorney representing DNREC filed a motion to dismiss Fasano’s appeal for lack of jurisdiction. At the merits hearing, a different DOJ attorney presented DNREC’s timeliness argument, and MERB dismissed the appeal as untimely. The Superior Court reversed, finding the appeal timely, and remanded for a hearing on the merits.
On remand, the same DOJ attorney who had initially represented DNREC and filed the motion to dismiss now appeared as counsel for MERB — the adjudicator — at the second hearing. That attorney also drafted MERB’s written decision upholding Fasano’s termination. The Superior Court affirmed MERB’s decision, concluding that the arrangement did not violate procedural due process under the Delaware Supreme Court’s prior holding in Blinder, Robinson & Co. v. Bruton. Fasano appealed.
The Court’s Holding
The Delaware Supreme Court, in an opinion by Chief Justice Seitz, reversed and remanded for a new hearing, holding that the switching of roles by the same DOJ attorney — from advocate for DNREC to legal advisor and decision-drafter for MERB in the same case — violated Fasano’s procedural due process rights under the Fourteenth Amendment and Article I, Section 9 of the Delaware Constitution. The court distinguished its earlier decision in Blinder, which held that the mere prosecution of an administrative case by one deputy attorney general before another acting in an adjudicative capacity does not, without specific evidence of bias, overcome the presumption of adjudicatory integrity. Blinder, the court explained, involved different attorneys for the prosecutorial and adjudicative roles; it did not address what happens when the same attorney moves between those roles in the same proceeding.
The court held that where one attorney personally takes an adversarial position against a party — by representing the opposing agency and filing a motion to dismiss — and then shifts to serve as counsel to the decisionmaker in the same case and authors that body’s final decision, the risk of actual bias is unacceptably high. The presumption of impartiality that normally protects administrative adjudicators no longer holds under those circumstances. The court drew support from the Nebraska Supreme Court’s decision in Uhrich & Brown Ltd. Partnership v. Middle Republican Natural Resources District, which similarly found that an attorney who advocated for one side and then advised the adjudicator in the same matter rendered the adjudicatory function inherently suspect. Under these facts, the court found the constitutional floor of procedural due process was not met, regardless of whether there was a showing of actual, subjective bias.
Key Takeaways
- The Blinder rule — that commingling of prosecutorial and adjudicative roles in administrative proceedings does not per se violate due process absent specific evidence of bias — does not apply when the same individual attorney personally advocates for one party and then serves as legal advisor to the adjudicator in the same case.
- A DOJ attorney who files an adversarial motion on behalf of one agency cannot, consistent with due process, later represent or advise MERB (or another adjudicatory body) and draft its decision in the same proceeding; the appearance and risk of partiality is too great.
- Administrative law flexibility has limits: while agencies may commingle investigative and adjudicative functions through different personnel, the personal switching of roles by a single attorney within a single case crosses a constitutional line.
- The court did not require Fasano to demonstrate actual, subjective bias — the structural risk created by the role-switching was itself sufficient to require a new hearing.
Why It Matters
This decision draws a meaningful line within Delaware administrative law that practitioners and state agencies must heed. The ruling confirms that Blinder‘s permissive stance toward mixed roles in administrative proceedings is limited to structural, institutional commingling — such as different attorneys within the same office serving prosecutorial and adjudicative functions — and does not extend to situations where a single attorney personally traverses adversarial and adjudicative roles in the same matter. Going forward, the Delaware Department of Justice must screen carefully to ensure that attorneys who have taken a litigation position on behalf of an agency-party are walled off from subsequently advising the adjudicating tribunal in that same case.
For public employees facing disciplinary proceedings, the decision reinforces that the right to a fair and impartial hearing has teeth even in the administrative context, and that structural due process objections need not be grounded in proof of subjective bad faith. Defense attorneys in MERB and similar administrative proceedings should scrutinize the identity of agency counsel across all stages of a case and raise role-switching conflicts promptly on the record.