Deliberate attempts were made to prevent the residents from knowingly choosing to stay at the facility as they were never advised or effectively counseled regarding this option.”

Hon. Kevin R. Bryant in his decision

KINGSTON, NY — Sullivan County and county manager Joshua Potosek were found in criminal contempt of court on Thursday, October 29 in a state Supreme Court proceeding. The court found that the county knowingly violated a temporary restraining order that prevented the county from further acting on the closure plan of the Sullivan County Adult Care Center (ACC), also known as the Care Center at Sunset Lake.

The hearing, presided over by State Supreme Court Justice Kevin R. Bryant, saw the testimony Potosek, ACC Administrator Keyshawn Macharie, deputy administrator Bobbi-Ann Kanoff, director of admissions Jacqueline Oakley, senior account clerk Brittany Siegel, ACC volunteers and members of the family council Lou Setren and Julie Dreher, and Krecia Goebel, the daughter of a former ACC resident. Michelle Bowers, the deputy county manager, was present at the hearing but did not testify.

Attorney for petitioners Michael H. Sussman argued that the county failed to properly inform residents about the injunction, calling the county’s actions a “cover-up.” 

Sussman also argued that an employee retention program was a way of skirting around the restraining order’s mandate that the county could not fire any employees under the stay. The retention program was designed to give benefits to employees who stayed for the duration of the ACC’s closure and that was modified to be applicable to employees who voluntarily left before the ACC closed. 

Attorney for  County Manager Joshua Potosek and Sullivan County Khalid Bashjawish argued the county had worked to inform residents and that the defense did not prove its case "beyond a resonable doubt."

Attorney for the county and for Potosek, Khalid Bashjawish, argued that the county did take steps to inform residents and their family members about the stay, and that the defense did not meet the burden of proof. Bashjawish further argued that the retention program was meant to be simply a benefit program, and not to cover anything up.

Bashjawish also noted that no employee who allegedly was fired during the stay or resident or family member of a resident who was transferred during the stay testified, and that the arguments laid out by Sussman did not prove contempt beyond a reasonable doubt. Bashjawish declined to comment on the ruling and Dan Hust, the county’s communications director, also said the county could not comment at this time.

The judge’s decision

Bryant, in his deliberations, said the county “knowingly interfered” and rejected the county’s argument that residents left voluntarily. In his decision released on Friday, October 30, Bryant emphasized that point. 

“The evidence establishes to the court's satisfaction that County officials knowingly and intentionally took numerous actions after the entry of the injunction in furtherance of the implementation of the transfer plan,” Bryant wrote. “These actions included, but were not limited to, developing a new form to encourage ‘voluntary transfers’ and adopting amendments to a previously adopted buyout plan for the employees subject to the injunction.”

“County officials further took active steps to interfere with the dissemination of information regarding the injunction and continued to transfer patients in a way that prevented them from knowingly making choices regarding their relocation,” Bryant wrote in his decision. 

“It is this Court's finding that the actions established on the record were intended to thwart this Court's clear and unequivocal order,” Bryant wrote. “Deliberate attempts were made to prevent the residents from knowingly choosing to stay at the facility as they were never advised or effectively counseled regarding this option.”

Bryant also found the county violated the order by altering the retention program. He said that the county failed to offer a persuasive argument in support of its claims, and that the program’s changes actively interfered and violated the court’s order.

“This Court further finds that the evidence establishes beyond a reasonable doubt that Respondents intentionally took steps in furtherance of the closure plan that were intended and did actually thwart this court's order regarding the termination of employees,” Bryant wrote in his decision. “This revised offer clearly constituted an action by Respondents, and, absent any persuasive testimony to the contrary, constituted a further intentional act to thwart this Court's clear and unequivocal order.“

The penalty hearing has been set for Tuesday, November 24 at 11:30 a.m. at the Ulster County Courthouse. According to New York State Law, the penalty for an individual who violates a mandate of a New York Supreme Court is a fine not to exceed $5,000; however the penalty is ultimately left up to the judge’s discretion.

Reactions to the findings

Attorney for petitioner's Michael Sussman said he was "gratified" by the court's decision

Sussman said that while he and the petitioners are grateful for the court’s decision, it still is a sad day due to the human cost of the proceedings.

“We’re gratified by the court’s decision, but we’re also upset that it got this far. So many people’s lives were negatively affected by the bad will of the county,” Sussman said. “The rule of law means nothing if it's going to be followed in a very selective way. So orders have to be followed whether you like those orders or not. That’s pretty clear that’s not what happened here.”

Goebels, whose father transferred out of the ACC and who testified, echoed that human cost.

“All these people’s lives have been changed completely,” Goebels said. “There’s no way to get it back.”

Oakley said that she was glad that the people who testified and told their stories could serve to honor that cost. “I’m glad justice was served here today, and I’m glad that we could be the voice for the voiceless,” Oakley said. “People have died, and they will never be forgotten. People have been displaced and they lost their home…I’m glad for justice for the people.”

Legislator Catherine Scott, who chairs the health and human services committee of the Sullivan County Legislature that oversees the ACC and attended the hearing, said that it was sad that residents and their families were put through a stressful event, and the county should have been doing more.

“I’m sad that residents and family members were caused undue stress. The entire closure should have been resident oriented,” Scott said. “Even though I was not in favor of closing the facility, we should have been so much more focused on the vulnerable people that we were supposed to be serving."

Scott also said that the testimony and the proceedings were eye-opening about the way the county is run, and that further discussion is needed.

“What I hear today gives me great pause and concerns about operations within the county,” Scott said. “I think that it causes greater conversations for my colleagues and myself.”