Allegation
“She demonstrated a complete lack of candor to the undersigned in my capacity as her appointing authority when, in September 2014 and in the course of an administrative investigation into her conduct as a professional guardian, I directed her to forward a list of any guardianships from which she had been removed other than the Guardianship of MP. In her response, she indicated that she had never been removed as guardian but had been replaced as “the result of an agreed to Stipulation”, as Trustee for a Special Needs Trust in the case of Guardianship of TB, and the SNT of TB. In point of fact, Judge Cassavechia found that Ms. Marino had not been removed by agreement, but rather had been removed as Trustee by the court for cause, including regularly charging excessive and unreasonable fees. Indeed, Judge Cassavechia observed that she filed a Motion for Reconsideration of that decision. In short her assertion that her removal as Trustee was the “result of an agreed Stipulation” was nothing short of a bold-faced lie made directly to her appointing authority in the court of an investigation into her conduct.
Response
Click on Attachment for supporting document.
The disciplinary hearing transcript reflects this matter was brought up as a “housekeeping issue” (Attachment 1) the morning of the hearing with neither me nor my counsel, being prepared to respond to this issue. We were not even in possession of the documents being referred to by the court (Attachment 2). Extensive discussion contained in the transcript reflects the Special Administrator’s confusion as to the matter, as he could not find any indication in the court file that a hearing was ever held or a ruling ever made that fees were unreasonable or excessive. (Attachment 3) The Special Administrator’s conclusions were based solely on his review of the trial court’s orders that in themselves, were deficient and erroneous.
With regard to the excessive and unreasonable fees, had there been proper examination of the underlying issue, it would have revealed the finding contained in trial court’s order (Attachment 4) was based on an unfounded statement contained in a scheduling notice issued by another judge (Attachment 5) and not as the result of any evidence, testimony or examination by the trial court. For the four year duration of the guardianship over the person, guardianship over the estate and Special Needs Trust, eight accountings were filed and approved with no objections to fees or any other expenses, by any party.
With regard to the trial judge’s expressed concerns that “DHHS claims that Ms. Marino has been unwilling to provide copies of requested information” (Attachment 4), in fact, DHHS misrepresented their claims to the court. Claims which are directly refuted by numerous documents including a September 13, 2013 Medicaid AAU final order confirming DHHS had received all requested information (Attachment 6) and a September 15, 2014 letter from Atty. Maureen Dwyer again confirming the requested documentation was provided to two different attorneys from DHHS in the prior year (Attachment 7).
The more complicated issue is the matter of the basis for my removal as trustee as it relates to my statement to Judge Kelly contained in my letter of October 9, 2014 (Attachment 8). In response Judge Kelly’s inquiry letter dated September 30, 2014, asking if I had been removed in any guardianship matters (Attachment 9), I advised I had not been removed in any guardianship matter, but disclosed I had been replaced in a matter that was not a guardianship.
In that letter I stated I had not been removed as Trustee but rather replaced as “the result of an agreed upon Stipulation”. I agree this was a misstatement. As Judge Kelly was asking for a list of guardianships from which I was removed, and understanding he was seeking to evaluate my interactions with the court system, I believed that leaving out a removal in a non-guardianship matter would have indeed been lacking candor. My voluntary disclosure of removal in a trust matter was an attempt to ensure transparency, but at the same time convey the complicated nature of the matter and my strong disagreement with the removal and findings of the trial court in a matter where an agreement for me to resign at the appropriate time by agreement of the parties was already in place.
As noted in the Special Administrator’s findings, in the letter to Judge Kelly, I further explained my disagreement with the trial judge as to the grounds for removal stating, although, I “had no objection to [removal as per] the agreed upon stipulation, I [did] take exception to the trial court’s finding my fees were determined to be unreasonable and further comment I had been uncooperative with the provision of documents” to DHHS. (Attachment 8). A copy of the stipulation and court approvals for all accountings were also provided to Judge Kelly with no response or further inquiry.
Notwithstanding the above, a review of the court record reflects my removal as guardian over the person was by agreed stipulation (Attachment 10) with all parties understanding I would continue as guardian over the estate and as trustee until outstanding financial matters were resolved. This agreement was approved and noted by the court (Attachment 11)
The Special Administrator’s conclusions my actions “further erodes confidence in her overall ability to address Probate Division judge with the candor . . .” (Attachment 12) is seemingly supported by his contention that the Motion for Reconsideration (Attachment 13) reflects I objected to removal. What he fails to examine is the basis for my objection was the trial court’s findings of removal for excessive and unreasonable fees and failure to cooperate with DHHS in the provision of documents. These issues were never corrected or clarified by the trial court, as the trial court’s denial of the Motion for Reconsideration was non-responsive and did not provide any commentary as to the entire basis of the motion. (Attachment 14)
The underlying matter heard in the trial court was significantly defective. The matter before the court was the ward’s discontentment with the guardian of her estate and trustee. A discontentment not based on any action on my part, but rather her own preference for a guardian who could visit her more often. An action that had already been agreed to by the parties upon completion of necessary work. The trial court judge took it upon herself to remove me on the basis of erroneous findings I had regularly charged excessive and unreasonable fees and failed to cooperate with DHHS in the provision of documents, two issues not contained in any motion or petition before the court. Despite the Special Administrator’s conclusion the Motion for Reconsideration was an acknowledgement I was removed for cause, my objection to removal was on the basis of erroneous findings. My objection to the trial court’s findings was reasonable and appropriate and should not have been held out as evidence I was lacking candor. More importantly, my explanation to Judge Kelly certainly did not constitute “a bold face lie”.