Procedural Due Process in Delaware Administrative Hearings: DOJ Counsel May Not Switch from Advocating for the Agency to Advising the Adjudicator in the Same Case

I. Introduction

Case: Fasano, William v. Delaware Department of Natural Resources and Environmental Control
Court: Supreme Court of Delaware
Date: June 29, 2026

This appeal arose from the termination of William Fasano, a state parks superintendent for Bellevue and Fox Point, by the Delaware Department of Natural Resources and Environmental Control (“DNREC”). Fasano challenged his termination through the State Merit employment framework, ultimately reaching the Merit Employee Relations Board (“MERB”) and then the courts.

The key issue that became dispositive on appeal was procedural due process: whether it was constitutionally permissible for the same Department of Justice attorney who had previously taken an adversarial position in the case (by filing a motion to dismiss Fasano’s MERB appeal as untimely) to later represent MERB after remand and draft MERB’s written decision upholding DNREC’s termination decision.

II. Summary of the Opinion

The Delaware Supreme Court reversed the Superior Court’s judgment and remanded for a new MERB hearing. Although Delaware law tolerates certain “commingling” of functions in administrative proceedings, the Court held that this case went beyond permissible overlap because the same attorney first acted in a prosecutorial-type role against Fasano and later acted as legal advisor to the adjudicator in the same proceeding, including authoring the tribunal’s decision.

The Court concluded that, under these circumstances, the risk of actual bias is unacceptably high and the process therefore violated Fasano’s procedural due process right to a fair and impartial hearing.

III. Analysis

A. Precedents Cited

1. Blinder, Robinson & Co. v. Bruton

The Superior Court treated Blinder, Robinson & Co. v. Bruton as controlling. In Blinder, the Delaware Supreme Court recognized that administrative systems often necessarily combine functions and held that “mixing prosecutorial and adjudicative roles” does not violate due process absent a specific showing of bias. The decision emphasized the presumption of honesty and integrity of administrative adjudicators, drawing heavily on federal due process doctrine.

The Supreme Court in Fasano did not reject Blinder, but it cabined it. The critical distinction was structural and personal: Blinder involved different Deputy Attorneys General acting in different roles, whereas Fasano involved the same attorney switching sides—from advocating a position adverse to Fasano to advising the decisionmaker in the same case. The Court expressly noted that Blinder “did not address the conflict concerns raised in this appeal.”

2. Withrow v. Larkin (as quoted and relied upon in Delaware cases)

While not the central holding, the Court’s framework echoed the principles attributed (via Blinder) to Withrow v. Larkin: due process analysis in administrative proceedings is context-dependent, and adjudicators enjoy a presumption of honesty and integrity unless the risk of actual bias becomes constitutionally intolerable.

The Court used that same baseline presumption but held that the presumption no longer realistically holds when the “same person on the same case” moves from adversarial advocacy to adjudicatory advising.

3. Delaware procedural due process and administrative review cases

  • Stoltz Mgmt. Co. v. Consumer Affs. Bd. — cited for the standard of review when the Superior Court took no new evidence: the Supreme Court reviews MERB’s decision directly.
  • Blue Beach Bungalows DE, LLC v. State (quoting Keep Our Wells Clean v. Del. Dep't of Nat. Res. & Env't Control) — cited for the “substantial evidence” and “free from legal error” framework.
  • Brigade Leveraged Cap. Structures Fund Ltd. v. Stillwater Mining Co. — cited for de novo review of legal errors.
  • Burroughs v. State and Cohen v. State ex. rel. Stewart — cited to distinguish substantive vs. procedural due process and to reiterate that due process is flexible and context-driven.
  • Stanford v. State Merit Emp. Rels. Bd. and Naples v. New Castle Cnty. — cited for the proposition that public employees have a protected property interest in employment (when “for cause” standards apply), triggering procedural due process protections.
  • In re Carolyn S.S. — cited for the equivalence of Delaware and federal due process protections.

4. Delaware commingling-function cases in analogous settings

The Court referenced prior Delaware decisions and Superior Court authorities recognizing that commingling investigative and adjudicative functions is not per se unconstitutional:

  • In re Kennedy — cited in Blinder for the proposition that commingling investigative and judicial functions at an administrative/fact-finding level does not necessarily violate due process.
  • Sokoloff v. Bd. of Med. Prac. — held due process satisfied where two different Deputy Attorneys General separately prosecuted and advised.
  • Brown v. State Bd. of Dental Exam'rs — held commingling functions within an agency is not alone a due process violation.

These cases influenced Fasano by framing what Delaware had already accepted as constitutionally tolerable—while highlighting, by contrast, that the same-person role switch was qualitatively different.

5. Out-of-state authority adopted as persuasive support

The Court relied heavily on Uhrich & Brown Ltd. P'ship v. Middle Republican Nat. Res. Dist., where the Nebraska Supreme Court held that due process concerns intensify when the same person participates in adjudication after acting in a prosecutorial role in the same matter. The Court also cited:

  • Botsko v. Davenport Civ. Rts. Comm'n — appearance of fundamental unfairness where an attorney advocated and then participated in closed adjudicatory proceedings.
  • Sabey v. City of Pomona — agencies barred from using the same law firm in advocate and advisor roles in the same contested matter.
  • In re Grismore — cited as a contrast case: no violation where conduct was consistent with distinct roles on separate matters.

These authorities reinforced the Delaware Supreme Court’s conclusion that the risk profile changes materially with a “same attorney, same case” role reversal.

B. Legal Reasoning

The Court’s reasoning proceeded in a structured sequence:

  1. Identify the constitutional frame: procedural due process applies because Fasano, as a merit employee subject to “just cause” protections, had a protected property interest in continued employment.
  2. Acknowledge administrative flexibility: unlike criminal prosecutions (which require strict separation), administrative systems may combine functions as a matter of practicality.
  3. Apply Delaware’s baseline presumption: adjudicators are presumed honest and impartial; commingling functions is not automatically unconstitutional.
  4. Distinguish commingling within an office from personal role reversal: the Court held that Blinder-type commingling tolerates different attorneys in different roles, but does not sanction the same attorney first advocating an adverse position and later advising the adjudicator in the same case.
  5. Assess risk of bias, not proof of bias: the Court did not require Fasano to show actual bias in the record; rather, it held that the risk of actual bias was “unacceptably high” given the attorney’s earlier adversarial participation and later authorship of MERB’s decision.
  6. Craft the remedy: reversal and remand for a new hearing before MERB consistent with due process requirements.

Notably, DNREC and MERB argued that the attorney’s initial role was limited (a procedural timeliness motion) and that Delaware should accept such overlap under Blinder. The Court rejected this characterization because the attorney had “staked out a position adverse to Fasano,” then became the adjudicator’s advisor, and drafted the decision likely to be appealed—creating an impermissible appearance and risk of unfairness.

C. Impact

The decision establishes a significant operational constraint for Delaware administrative adjudication involving the Department of Justice:

  • Bright practical rule: once a DOJ attorney participates as an advocate adverse to a party in a particular administrative case (even on a procedural motion), that attorney should not later represent, advise, or draft decisions for the adjudicator in the same case.
  • Limit on “Blinder” in same-person scenarios: agencies and reviewing courts should not treat Blinder, Robinson & Co. v. Bruton as blanket approval for any mixing of roles; instead, they must distinguish between institutional commingling (different actors) and personal commingling (same actor switching roles).
  • Process design consequences for MERB and similar bodies: MERB (and similarly situated boards) will likely need more formal conflict-screening and assignment protocols to ensure counsel roles remain separated on remand and in multi-stage proceedings.
  • Appeal-proofing administrative decisions: because the Court focused on the risk of bias and the appearance of partiality, agencies may face reversals even without a record showing of actual bias if counsel role-switching occurs.

IV. Complex Concepts Simplified

  • Procedural due process: the constitutional requirement that government use fair procedures before taking away important interests (here, Fasano’s protected interest in his public employment).
  • Commingling of functions: when investigative/prosecutorial and adjudicative tasks occur within the same agency system. Administrative law often tolerates some overlap for practical reasons.
  • Presumption of impartiality: courts generally assume administrative decisionmakers act honestly and fairly unless there is a strong reason to think bias is likely.
  • “Same person on the same case” problem: the heightened due process concern when the very same individual first acts as an advocate (arguing for one side) and later helps decide the case (or advises the decider). The Court held this creates too high a risk that the decision will not be impartial.
  • Substantial evidence review: appellate courts typically defer to administrative fact-finding if supported by “substantial evidence,” but they review legal errors (like due process violations) independently.

V. Conclusion

Fasano v. Delaware Department of Natural Resources and Environmental Control clarifies a key boundary in Delaware administrative due process. While Delaware permits some commingling of functions within the administrative state, procedural due process is violated when the same Department of Justice attorney shifts from advocating against an employee to advising the adjudicator in the same case and drafting the adjudicator’s decision. The Supreme Court’s reversal and remand underscores that fairness in administrative adjudication depends not only on outcomes and evidence, but also on structural safeguards ensuring impartial decisionmaking.