Friday, May 1, 2009

Sign Of the Times

The Vermont Supreme Court suspended a judge for six months for a conflict of interest and writing a letter for newspaper publication that contained false assertions. The court rejected the judge's attack on the findings of fact of the Judicial Conduct Board as to the conflict:

...the Board found that respondent had participated in “both sides of the [Emerge] transaction” and had “violated his fiduciary duty to the County by selling County property to the very organization on whose Board he sat, at a favorable price, eschewing at least one other cash offer which would have brought a higher return to the County for the sale and ignoring much of the accrued debt of the tenant (Emerge).”  As a result of this conflict of interest and patent appearance of impropriety, the Board concluded that respondent failed to maintain the “high standards of conduct” and integrity required of judicial officers, in violation of Canon 1 of the Code of Judicial Conduct; failed to act “in a manner that promotes public confidence in the integrity” of the judiciary, in violation of Canon 2(A); failed to “discharge [his] administrative responsibilities without bias or prejudice,” in violation of Canon 3(C)(1); and failed to properly disqualify himself from participating in a “proceeding in which [his] impartiality might reasonably be questioned,” in violation of Canon 3(E).  In addition, the Board concluded that respondent’s extra-judicial service as a member of Emerge’s board of directors had “[c]ast reasonable doubt on [his] capacity to act impartially as a judge” and “[i]nterfere[d] with the proper performance of [his] judicial duties,” in violation of Canon 4(A)(1) and (3). 

The other violations related to the judge's reelection campaign:  

    The events which formed the basis of the second misconduct charge against respondent arose from his participation in a three-way primary race for reelection in the fall of 2006.  On or about October 18, 2006, respondent placed a campaign sign on the front lawn of a business in Quechee, but the sign was apparently removed the following day.  Respondent assumed that it had been stolen.  Accordingly, on October 21, 2006, respondent sent a note (which respondent has characterized as a “media advisory” or press release) to a local newspaper, the Vermont Standard, characterizing the “theft” as a “political dirty trick” which “appeared to be a continuation of the internecine nastiness directed at me personally during the Democratic primary last summer.” Several days later, respondent had what the Board found to be a “tense confrontation” with the Quechee business owner about the sign’s removal, and on October 26, 2006, an article appeared in another newspaper, the Valley News, reporting that, contrary to the “press release” circulated by respondent, the sign had not in fact been stolen but rather had been removed by the business owner herself.    

Although respondent was thus aware of the true state of affairs concerning the sign by October 26, 2006, he did not withdraw the note that he had previously sent to the Vermont Standard, which published it as a letter to the editor on November 2, 2006, within days of the election.  The article appeared in conjunction with another letter to the editor from respondent touting his “judicial experience.”  The editor of the Vermont Standard testified that respondent had contacted him several days earlier asking why he had not yet published his letter, although respondent claims that the inquiry was in reference to a different letter that he had submitted, which was subsequently published on November 9, 2006.  There is no dispute, however, that respondent did not thereafter submit a letter of correction or retraction to the paper to correct the misstatement concerning the alleged theft.  

As to sanction, the court holds:

In our view, nothing less than the recommended sanction of a six month suspension from all assistant-judge duties upon respondent’s resignation from the board of Emerge would be adequate to restore public confidence in the integrity, impartiality, and independence of the judiciary.  We also concur in and adopt the Board’s recommendation that respondent recuse himself from all county funding decisions from any organization on whose board he has served within the last five years, and complete a judicial ethics course at his own expense with prior approval of the Board.    

      The VACJ [an amicus] rightly notes that there is at times a “tenuous boundary” between an assistant judge’s executive and adjudicative duties.  Rather than lenience in enforcing such boundaries, however, we believe that this requires heightened vigilance to ensure against even the appearance of conflict or impropriety.  In concrete terms, we are concerned about the appearance of impropriety resulting from respondent’s participation in any family court case in which Emerge was, is, or might be engaged to provide parent-contact, supervised visitation, or other services to the court or parties.  Accordingly, we hold that respondent must be disqualified from any case in which Emerge has provided services in the past, or is engaged to provide services within one year from the completion of respondent’s suspension. 

(Mike Frisch)

Judicial Ethics and the Courts | Permalink

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