*1 case, Act, § Medical 422.4. we note Firman’s conduct Practice P.S. Un- certainly felony programs, would der these licensees addicted to constitute under the action, Drug drugs disciplinary provides, part: Act which in relevant or alcohol will avoid addiction, (f) solely long based as (12) on their Any person who violates ... clause satisfactorily in progress enroll in and (a) ... respect of subsection to: approved programs treatment and do not safety. public constitute a threat to (3) A controlled substance counterfeit IV, substance classified Schedule reasons, For orders of the Board these guilty felony and conviction Nursing of Medicine Board of and the thereof imprisonment shall be sentenced to affirmed.11 exceeding years pay not three or to a fine ($10,- exceeding not ten thousand dollars ORDER 000.00) or both. 1997, NOW, 3, July the orders of the 780-113(0(3) added). § (emphasis 35 P.S. Nursing Board of Medicine and Board The Clause 12 referred to above reads: hereby above-captioned matters are (12) acquisition obtaining posses- affirmed. sion of a misrepre- controlled substance sentation, fraud, forgery, deception, or
subterfuge.
780-113(a)(12).
35 P.S.
See Common
Larsen,
Superior
wealth v.
Pa.
Ct.
(1996) (holding
Because Firman’s clearly implicates felony violations of the 31, 1997. March Act, Drug similar because conduct has in Drug Pennsyl- resulted Act convictions
vania, reject we Firman’s contention that the
conduct for which she was convicted would felony not drug constitute a violation of the law.
We note also that provides Board reasonable accommodation recovering drug through addicts its im- paired professional programs, known collec-
tively Monitoring as the Professional Health (PHMP). See,
Programs
Section
Affairs,
reply
Occupational
11. In her
128 Pa.
Firman adds the additional
brief.
Professional
argument
(holding
Legislature
prohibited
from
Cmwlth.
ORDER
PER CURIAM. March, NOW, day AND this 31st herewith, IT IS upon Opinion tiled based HEREBY ORDERED: That, No. pursuant to C.J.D.R.P. Findings of Fact Opinion with attached hereby of Law be and is and Conclusions filed, upon and shall be served Respondent, upon Board and Conduct That, party may elect to file written either objections findings and conclusions Court, stating therein basis objec- objections, such provided that those within be filed with the Court tions shall entry days the date of ten Order, copy served and a thereof this opposing party, tiled, That, objections are such the event whether en- the Court shall determine objections, argument upon oral tertain setting such a date for issue an Order argument, oral objections That, timely in the event (10) days, or the not filed within ten argument shall Court decides that oral issue an Or- Court will presented, date, pursuant to C.J.D.R.P. setting der hearing on the issue No. for a sanctions. McEWEN, P.J., and
Before MAGARO, McCLOSKEY, CASSEBAUM, MESSA, SYLVESTER, WEINBERG SWEENEY, JJ.
CASSEBAUM, Judge. SUMMARY
I. INTRODUCTORY (“the Board”) Board The Judicial Conduct against Court Complaint with this has filed Pleas, Former Richard D. (“respon- including reporters Cicchetti the court and the dent”). Complaint twenty- consists of employees of the Probation and Parole Adult allega- five Counts which are based on the Office. by
tions of sexual harassment four women- Complaint against 5. The Board filed a complainants (paragraphs 7-19 and 48-81 July with the on 1-8) Complaint and Counts and two al- leged election (paragraphs law violations 82- Complaint 6. The Board divided the into 9-25). Complaint and Counts We three Parts. find: 7-81) (paragraphs allega Part A recites allegations of the com- two tions of misconduct made six women. plainants, Hay Mary Debra Beth Hos- trial, Prior to the the Board withdrew the tert, do, relating, alleged to conduct allegations (paragraphs made two of the women twenty-one years ago, have occurred 47). composed Part A is 20- case, years one and thirteen or fourteen through Counts other, ago, considered, should not be 82-93) B (paragraphs allega- Part recites that the Board did not sustain its bur- support tions in charge respon- of establishing by den clear convincing dent, in his retention election effort of No- allegations evidence the made Krista Mil- vember, 1993, violated the Order of the *5 ler, Supreme Pennsylvania Court of dated June 3. that the Board did sustain its burden 29, Regarding 1987 and the Guidelines Po- proof regarding allegations made Activity by Court-Appointed Employ- litical Brueggman, Heather and promulgated ees thereunder. Part B is composed of through Counts 9 16.
4. that the Board has sustained its bur- proof den of on one of the two election law 94-121) (paragraphs Part C sets out alle- violations. gations that, support charge in re- spondent, in his retention election effort
II. FINDINGS OF FACT November, 1993, formed the Committee to Judge Retain President Richard D. Cicchetti 1. INTRODUCTORY and Campaign the Committee filed two Ex- Respondent 1. judge is a former pense Reports which set forth false and mis- Court of Common Pleas for the Fourteenth leading information violation of the Act of Pennsylvania Judicial District of which en- (P.L. 3, 1333, June 1937 320 No. as amend- compasses Fayette County. ed) respondent and that executed an affidavit Respondent 2. judge served as that, report attesting on each to the best of January, that Court from to December belief, knowledge his and the Committee had 31, 1995, when he retired from serv when, fact, not violated said Act he knew ice.1 that was untrue. 3. Judge served as President January,
of that Court from
until
1978
his 2. PARTA
retirement.
(i)
Hay
Debra
4.
Judge, respondent
As President
had
supervisory authority
employ-
Hay
party
over all court
a
Debra
was a
divorce
Fayette County
respondent
ees of the
Court of
Common action before the
1975. She
cases,
ceedings
only
1. It has been contended in other
is thus
at an end when we issue a
jurisdiction
discipline
Snyder,
Court
final order”.
13. She left her During employment of her period 19. Police in 1990. State alleged Fayette County and after the with Ms. Mil- meeting regarding computerization, early in late 1982 or 14. testified that She respondent’s frequently office ler called during a ten minute conversation to asking personally stopped in unannounced consisting of respondent’s robing room “basi- respondent. phone These calls and see the talk”, inquired as cally just respondent small her courthouse visits had to do with both go him to would like to with to whether she personal as the matters such duties and country Ligonier parents’ home visit her renting respondent’s from apartment she was Springs for a weekend. or to resort Seven car, son, she was detailing her and interviews job Philadelphia. having for a (iii) Miller Krista report Miller 20. At no time did Ms. employed a court 15. Krista Miller was content to County phone calls or their Fayette Court of these reporter reporters, Wagner, any of her court to fellow early until June Common Pleas any or to of her friends. time worked During that she 1993. —
21. A employ- repeatedly importuned get few months before she left to to- her Fayette County, ment with him gether giving Ms. Miller told after her a Lukachick, over; Humphrey at the time weekend to think it and when Chief County Fayette “no”, County, Detectives of she said — receiving phone she had been calls from re- powerful asked her if she knew how spondent asking go her to out. Ms. Miller get anybody he was and that he could did not tell Mr. Lukachick respondent county anything to he want- do ever made sexual overtures to her or ed. anything ever discussed of a sexual nature. 29. On one occasion invited Brueggman Ms. to his chambers for lunch at
(iv) Brueggman Heather Glover build, which time he remarked about her go asked if she wanted to to law school or July, In 22. Heather Glover magistrate become a and told her he could Brueggman began employment Fay- with the help her in either case. County ette Adult Probation Office. This job gradua- was her first full time after her Respondent proposed 30. that he and Ms. University. tion from Penn State Fike, Brueggman Harry visit the home of Controller, Fayette County who had a hot Fayette time, County, 23. at the one tub. probation assigned officer was each Brueggman Respondent persistently Heather Glover was as- endeavored signed respondent. to Brueggman engage to coerce Ms. in a relationship persis- sexual with him and her assignment She remained on that un- tent refusal to do so resulted in: February, til resigned when she after — respondent’s making Bruegg- Ms. only eight employment months of with re- job performance man’s difficult and spondent. advising change then her that he could job required respon- Her her to inbe things agreed get together; if she dent’s courtroom hearing whenever he was — respondent’s statement to Ms. criminal cases. Brueggman he could have her job father fired from his with Penn- repeatedly called Ms. Dot, and his intimation that he would Brueggman adjacent robing into his room agreed get togeth- do so unless she spoke per- courtroom and to her about *7 er. sonal matters such as:
— Brueggman’s 32. Ms. father was em- what kind of car she drove ployed by PennDot at the time. — what she liked to do on weekends Shortly Brueggman 33. after Ms. com- — whom she dated working respondent for menced she started — many boyfriends how she had (now husband) reporting to her fiancee that — if it was true blondes had more fun respondent calling asking was her and — get together get together reported whether could her to with him. She to her fiancee on numerous occasions. occasions, 27. one On of these while re- Monday hunting 34. On the first sea- spondent showing Brueggman was Ms. Brueggman son in Ms. told her father courtroom, glass stained in the windows he respondent’s repeated suggestions her put armhis around her and told her to think being was harassed. she getting together about over the weekend. Monday, following respondent called On Brueggman’s father then com- 35. Ms. get- thought her and asked if she had about Controller, Fike, plained Fayette County ting together him did not and she told she daughter receiv- about the treatment his was want to do that. ing respondent. from employed by the telephoned Bruegg- Joseph Guynn was
28. Ms. 36. County from Fayette Adult Probation Office frequently man which occasions he: To President “Committee Retain and shared an June 1993to June Committee”). (“the D. Brueggman while she Richard Cicchetti” office with Heather i.e., County, July, employed by the from was Pandalyn served as Forrest 46. In 1993 February, until 1994. respondent. reporter court Guynn present in the office Mr. 37. Deputy Meese was 47. In 1993 Roberta many Brueggman received times when Ms. Fayette County. Court Administrator of telephone and she dis- calls was Chief Thomas McDowell 48. “pretty much with him dai- cussed calls County. Fayette Court Constable ly”. Guynn phone calls Mr. believed the and that she appeared to make her nervous election time of the retention 49. At the Meese, Forrest, not want to receive them. Pandalyn did Roberta “court-appoint- McDowell were and Thomas Semansky an em- Joseph was also 38. defined in the Guidelines employees” ed Fayette ployee the Probation Office Court-Ap- Activity by Regarding Political County adjacent occupied an office promulgated Order pointed Employees, Brueggman. office of Ms. dated Court of Ms. Two or three months after 39. during 1993. and in effect June she Brueggman came to work the office Pandalyn respondent’s request, At Semansky respondent put his Mr. told of the Commit- Forrest served as Treasurer in court that arm around her when she was Richard D. Cicchetti. tee to Retain job her that her could morning and advised appointed easy possibly be and she could not serve Roberta Meese did justice, had made which conversation district did, but at any capacity official Committee in her uncomfortable. three checks respondent’s request, cash account bank drawn on Committee’s occasion, Brueggman another Ms. 40. On and deliver aggregate amount $1500 Semansky respondent wanted Mr. told respondent. the cash to Harry join Fike’s hot tub and him in her employment that she felt that her father’s Thomas McDowell did serve if she refused PennDot was threatened did, at capacity but official Committee During this conversation the invitation. checks respondent’s request, endorse two jumped, her rang visibly telephone and she on the Committee’s payable to him drawn said, God, I “My white and she face turned aggregate amount bank account hope it’s not him.” $1140. re- Brueggman also discussed 41. Ms. cashing not remember 53. McDowell does Fazenbaker, a Tim spondent’s conduct with cash, with the but or what he did the checks officer, Hoone, her probation fellow Charles keep it. he did not Larry Rosenberger, supervisor, and Re- Court’s Guidelines County Fayette Jail. Warden Court-Appoint- Activity by Political garding reasonably regarded Brueggman 42. Ms. *8 promulgated Order June Employees ed coercive, harassing, as respondent’s conduct 29,1987 provide: threatening. Activity resigned her Regarding Political Brueggman Ms. 43. Guidelines Courl^-Appointed Employees respondent’s harassment job because threats. 1. Definitions. (a) activity” “partisan-political The term 3. PARTS to, run- but is not limited include shall as for retention Respondent stood 44. office, serving par- as a ning public for held on during general election working poll- at a committee-person, ty 2,1993. November Day, performing ing place on Election campaign, political ain volunteer work campaign com- formed political soliciting contributions designated as the in 1993 which was
mittee campaigns, soliciting contributions 57. On November 1993 the Committee political for a action orga- committee or issued three checks: one in the amount of nization, Meese, but shall not include involve- payable to Roberta one in $600 non-partisan ment in public Gammon, payable commu- amount of to Jammie $500 nity organizations professional payable and one the amount of $400 groups. Raymond Ann total of Jamie $1500. —a (b) Gammon daughter is Roberta Meese’s The term ‘court-appointed employees’ Raymond Ann is Roberta include, Meese’s mother. to,
shall but is not limited all employees appointed to and who are 58. Roberta Meese cashed the checks and employed system, in the court state- respondent. delivered the cash to level, county wide and at employ- 22,1993 59. On November the Committee ees of the Administrative Office of Campaign Expense Report filed a with the Pennsylvania Courts, Court Adminis- Commissions, Bureau Legis- Elections and employees trators and their and assis- Pennsylvania lation of the Commonwealth of tants, clerks, secretaries, court data period for the October 1993 to November processors, probation officers, and such (Board 3) Exhibit 17.1993. persons other serving judiciary. page 60. On 10 of Report the Com- 2. Prohibition on Partisan Political Ac- Meese, mittee Ray- stated that Gammon and tivity. paid mond were to reimburse them $1500 Court-appointed employees shall not be purchase “Party Supplies”. for the any partisan involved political form of 61. That activity. information was false inasmuch Meese, Raymond Gammon and did not Employment. Termination of purchase party supplies and received no Henceforth, a court-appointed employee money from the Committee. engaging partisan political activity shall partisan political ceáse such 62. On October activi- Committee ty at payable once or shall issued a check the amount of be terminated from $600 position. his or to Thomas her McDowell. the event an employee chooses to become a candidate page Report 63. On 10 of the the Com- office, employee such shall be mittee paid stated that McDowellwas $600 terminated, effective the close of busi- purchase reimburse him “Party for the day ness on the circulating peti- first Supplies”. tions for said office. 64. That information was false inasmuch Judge. President purchase party supplies as McDowell did not appellate President of each money and in fact received no from the Com- county court or pleas court of common mittee. responsible shall be implementa- for the January 65. On 1994 the Committee guidelines tion of these and shall be payable issued a check in the amount of $540 subject to the review of the Judicial to Thomas McDowell. Inquiry and Review Board for failure to 13, 1994, January enforce. 66. On the Committee Campaign Expense Report filed a with the Forrest, Pandalyn Neither Roberta Commissions, Legis- Bureau of Elections and Meese, engaged nor Thomas McDowell lation of the Commonwealth of proscribed partisan activity political period January for the November 1993 to respondent’s campaign for retention in 1993. *9 (Board 4) Exhibit 10.1994. page Report, 4. PARTC 67. On 8 of the the Commit- reported paid tee that McDowellwas to $540 44, Findings of 56. Fact Nos. 45 and 50- him “Transportation”. reimburse charges 53 relate to the contained in PART (as Complaint of the C Board’s well as to 68. That information was false inasmuch B) incorporated provide transportation PART and are here. as McDowell did not and, fact, a conviction to money provided from the “carries clear received no “carries clear conviction of mind” or a Committee. the its truth”. 69. executed the affidavit 590, J.J., Pa. that, Adoption 515 A.2d re attesting portion Reports of these two of (1986). See, also, 883, In re LaRocca’s belief, knowledge the to the best of his and 640, 409, Estate, 192 A.2d Trust Pa. Act of Committee had not violated the June (P.L. 320) No. as amended. he 70. At the time executed the affidavits 1.PARTA Reports, respondent the on these knew above charged harassing the The Board has specified relating pay- information Complaint out in Part A of the conduct set Meese, Gammon, Raymond ments to and constitutes: of McDowell was false and that the execution (Count 1), 1. misconduct in office the a violation of false affidavits constituted prejudices proper the admin- 2. such that (P.L. 320) the of No. Act June (Count 2), justice istration of as amended. judicial office into brings such that the
3. (Count 3), disrepute III. DISCUSSION a of 1 of the of 4. violation Canon Code the of The amendment to Constitution (Count 4), Judicial Conduct Pennsylvania of 1993 the Judicial established a of 2 of the Code of violation Canon Court, provided Conduct Board and this and (Count 5), Judicial Conduct specific certain instructions for the conduct proceedings 3A(3) this Court: of before of of the Code violation Canon (Count 6), Conduct Judicial hearings
All conducted court shall pursuant public proceedings conducted 3A(4) of Canon of the Code violation adopted (Count to the rules the court and in 7), Conduct pro- principles with the of due accordance V, 17(b) of the a violation Article ap- cess and the law of evidence. Parties (Count 8). Pennsylvania Constitution pealing right have before the court shall discovery pursuant adopted to to the rules (ii) Hay, Mary Hos- Debra Beth right the court and shall have the tert compel pro- subpoena witnesses and to of the trial of this At the conclusion documents, books, duction of accounts and matter, expressed great concern subject relevant. The other records as great length of time between about charges presumed shall be innocent year of the incidents of sexual harassment court, any proceeding before the by complainants alleged were Debra proving board shall have the burden year Beth and the Hay Mary Hostert charges by convincing evidence. clear Complaint which the Board filed based 18(b)(5). 5, § Pa.Const. Article allegations. on In the case of Debra those Pennsylvania Supreme Court has de- twenty years had intervened since re Hay, convincing fol- fined clear and evidence as sexually explicit re spondent allegedly made lows: her; Mary Beth the case of marks Hostert, years since had intervened to be credi- thirteen witnesses must be found respondent.
ble, testify single encounter with We her that the facts to validity argu not consider the distinctly remembered and the details need order, quantity quality and exactly ment that narrated due thereof clear, direct, presented by requires Board testimony evidence their is so and that respect finding respondent with convincing in favor of enable the weighty, and since conviction, charges complainants two of these come to a clear fact] to [trier these conclude that to even consider hesitancy, pre- we truth without necessary charges violate both the fundamental ... would in issue It is cise facts guided our concepts ... which have fairness be uncontradicted evidence *10 centuries, jurisprudence case) specific expression appropriated and the to the are procedures which the Board has established by violated it. govern investigations. its Mill, Utilitarianism, Chapter (emphasis added). Thus, the more we must search to We note that age of the com person find the “definite who suffers
plaints against respondent
not,
itself,
does
infringement”
respondent,
the less
implicate respondent’s right
process.
to due
weight justice requires
give
us to
It
is settled in
merits
the claims.
disciplinary proceedings are
not criminal
nature, and
full panoply
rights
thus the
regard,
In
Hay
this
we note that had
and
provided under the Sixth Amendment to the Hostert
presumably
made their assertions —
United States Constitution —such as the
in the form of an action for tortious infliction
right of
expressly
confrontation —are not
private
of emotional distress —in a
civil action
guaranteed
Bell,
to respondent. Reiser v.
against respondent,
they would have been
(E.D.Pa.1971).
F.Supp.
Nonethe
compelled to have filed them within two
less, judges are afforded the full benefit of years of
underlying
incidents.2 These
procedural
process protections
due
conceptions
carefully
constrain us to
assess
Amendment, which,
Fourteenth
“though a
the ramifications of our consideration of alle-
variable and
concept,
elusive
in its basic es
gations so
remote
time.
process.” Cohn,
sence means a fair
statutory
We are aware that
limita
Rights
Limited Due
Judges
Process
In
periods
directly applied
tions
are not
to disci
Disciplinary Proceedings,
63 Judicature
plinary
Case,
proceedings.
(1979).
Wilhelm’s
protections
These
include the
420-21, 112
See, also,
Pa.
A. 560
right
discovery
privilege against
McCain,
The Florida Bar v.
charges
upon
not be filed based
the
could
key
finally
proceed
allegations
came
with the
is entire-
complaint until a
witness
sion to
important
ly
was discover-
and is not
forward or
evidence
within the Board’s discretion
reject
McCauley,
by
v.
403 Pa.Su-
ed. Commonwealth
this Court. We
this
reviewable
262,
(1991);
per.
argument,
by
ferred us allegations to the Board. The you December 1975 and indicate that by Hay and Hostert are thus too remote in you treating D’Angeles with a Dr. were time, occurrence, and too brief in to sustain Connellsville, Fayette County and he any possibility being linked in a common prescribed you pills, nerve that would be pattern by respondent. other conduct you’re telling inaccurate. Is that what us? Moreover, hearing testimony pre- after trial, persuaded sented at the we are see, there, talking A: You we’re Board has attained in but one case the stan- years ago. D’Angeles Dr. has been it, proof imposed upon namely, dard that it know, dead. You I haven’t even convincing establish violation clear and probably passed that name. He heard Certainly, episode evidence. one does not away right then after he seen me. I Nor, noted, “pattern.” constitute a is this seeing have no recollection of even earlier, holding pre-trial inconsistent with the him.
ruling Judge denying of the Conference re- Hay, p. Testimony of T.N.T. spondent’s preclude motion to the Board presenting testimony memory, Q: you testifying from of conduct more Are from years you ruling you testifying than four old. That reserved to about what know opportunity pat- to establish a from the docket? Board so, relied, hearing, comply We at the its Board failed to with Rule 15. did 4. As the Board on argument attempt procedural pattern relying upon and did not the Board’s averment of requirements, compliance reluctant, misconduct, show with these because we were at that holding go We nonetheless on to is sufficient. putting stage, forth to foreclose the Board compliance consider the merits of the Board's finding support that Rule evidence that would denied, prior with Rule hearing, respondent's because we complied now deter- 15 was with. We have Hay motion dismiss mined that it has failed to do so. allegations ground on the and Hostert Conduct, it is to be certain testifying only from Judicial difficult absolutely A: I’m docket, apply intended to I Counts were I know from the sir. what allegations complainant. Nonethe- of which memory. no have less, of cau- proceeding with an abundance Watson, attorney Hay’s Testimony of preroga- concern for the tion as well as with p. T.N.T. 292-93. rights of the Board and tives Testimony Garri- investigator of Board eight respondent, treat the Counts we will *13 attempts ty to his to cor- as unsuccessful recited in which the Board has the order allegations searching by roborate Hostert’s Complaint. them in the County Fayette T.N.T. records p. 311-16. engaged in 1 has Count The in misconduct office. is, testimony vague, uncertain
Such
face,
on its
so deficient as to render
that:
states
The
Constitution
Moreover,
charges
such outdated as
void.
justice,
justice
peace
judge or
of the
A
voidable
of misconduct are rendered
sertions
office
may
suspended, removed from
laches,
by the doctrine of
a defense available
disciplined
...
for
miscon-
or otherwise
See,
disciplinary proceeding.
in a
Office
in
...
duct
office
Davis,
Pa.
Disciplinary
v.
532
Counsel
(1992);
Case, supra.
added).
18(d)(1)
3H
clarifies,
This definition
did,
do,
but does not
capacity.”
or did not
in his official
change, the Green
[Quoting
definition. The definition
opinion
from the
adopt
we here
types
Michigan
addresses two
of action
Court of
in Wilson v. Council of
by judicial
Park,
only
City Highland
types
officer—indeed the
Mich.
(1938).]
action he can
discretionary
N.W. 778
and non-
take —
discretionary.
positive
“Breach of a
statuto-
Id., at 707-708. The District Court
then
ry duty” is a
perform
failure to
a non-discre-
observed that:
tionary act—all
«by public
other acts
officer
This definition of “misconduct in office” to
and,
discretionary
ease,
in either
in order
only wrongful
include
wrongful
acts or
fail-
to constitute
“misconduct
office” the acts
ures to
performance
act
performed
must be
in the course of the offi-
duties
consistently
of office has been
ac-
cial
duties
the office.
cepted by
[Citing
the courts.
cases from
Louisiana, California
Jersey
and New
We believe this to be the clear intendment
*14
well
as the decision of the
Superior
Court as well as other courts
Superior
Commonwealth v.
which have had occasion
ques-
to address the
Green, supra.]
example,
Weeks,
tion. For
in Clark v.
414
(N.D.111.1976),
F.Supp.
Finally,
Id. at
county
treasur-
District Court em-
sought
enjoin
phasized
er
his
the difficulties
removal from that
which would result if
meaning
office
under an
of the term is not
Illinois statute which
so limited.
made
removal,
“misconduct in
grounds
Thus,
office”
for
meaning
of “misconduct in of
arguing that the
unconstitutionally
term was
substantially
specific
fice” is
more
than the
vague. The United States
meaning
general
District Court
term “misconduct”
held that
it was not impermissibly vague
which has been
vague
found too
to be a
because the misconduct referred to in
constitutional
imposing punish
basis for
statute was
[Citing
“misconduct in office”
ment
...
and must
the United States Su
be
performance
preme
related to the
Court in
Pennsylvania,
of official
Giaccio v.
399, 404,
518[, 521-22],
duties —as contrasted with
U.S.
“misconduct” in
S.Ct.
(and
(1966)
general
Soglin
which
misconduct”, to warrant removal from of-
acter of the
warrant removal of an officer must be such
violation of the criminal laws of the
character as a
an
cases it is
the office at all.
tration or to a willful and intentional ne-
official duties. The misconduct which will
have no connection
as affects his
fice,
glect
and conduct
duties and amount either to maladminis-
“... must have direct relation to and be
connected
officer and not
and failure to
with the
necessary
man
which, though amounting
performance
private
from the character of the
It does not include acts
only
discharge
performance
with the
individual. In such
such as affects his
separate
of his duties as
the duties of
discharge
the char-
of official
state,
to a
Id. at 708.
intelligence
meaning
Co.,
havior,
ion in our
fied term “misconduct” is a standard of
constitutes
be called misconduct at
stitutes misconduct
man
behavior could
[126]
conduct “so
Considering
some later date”.
erly vague
...”
supra.,
behavior,
at
Connally
there is no
127[,
proper
269 U.S.
must
pluralistic society
the broad
vague
Cowrit2. The par whether The determination of ad- prejudices proper conduct which judicial office brought ticular conduct has justice. ministration of disrepute, necessity, a determina into by case prejudices which tion on a case Conduct which must be made justice in each case is proper particular administration consists basis conduct as (1) (2) noted, misconduct, weighed. committed with the intent As earlier scrutinized and (3) respondent’s proceedings, to obstruct we decided in Smith that the brought justice. delayed disposition of had not which obstructs the administration of cases Smith, relating to we disrepute In this case none of the facts itself. office certainty did, however, respondent’s related Heather that: conduct declare with Brueggman amounted to obstruction Section, charge To under sustain judicial proceedings. or interference with show persuasive the Board must make Smith, Moreover, in A.2d In re engaged has ing officer (Pa.Ct.Jud.Disc.1996), we held that 1237-38 (2) it in conduct is so extreme proper prejudices the administration conduct *15 judicial office bringing has in the resulted justice only where there is a (emphasis p. disrepute. Id. at into specific intent ... that the conduct would added). adminis have deleterious effect case, that, this re- in this we find Since justice, affecting example, by tration spondent’s to Heather as it related behavior specific outcome. coercive, Brueggman persistent, so was so nothing in Since the record establishes disrepute and so extreme we conclude elements, re- conclude that these we must brought upon judicial office itself.5 prejudice spondent’s conduct did engaged in Respondent has The Count J. justice. proper administration rule in of a canon or conduct violation engaged in Respondent The has Count 3. Supreme prescribed by judicial office brings conduct which Court, wit, 1 of the Code of Canon disrepute. into Conduct, provides as fol- which Smith, uphold integ- Judge in In re should also the occasion lows: “A We had 1238-39, judiciary. supra, p. rity independence to determine whether and at judiciary delay disposing in had and honorable judge’s independent of cases An society. judicial disrepute. indispensable justice our brought the office into is participate in establish- judge we reasoned: A opinion of that should course maintaining enforcing, and and ing, (1) it that a violation presumed cannot be observe, high standards should himself constitutional, can- provision, other integrity inde- so that the and of conduct automatically lowers onical or criminal may pre- judiciary pendence of the be authority of the public acceptance of the provisions of this Code served. The added). p. judicial Id. at (emphasis office applied to fur- construed and should be 1238; and objective.” ther (2) necessarily incorporates “Disrepute” engaged in Respondent has The reason- Count 5. regard to the some standard with rule of a canon or judicial conduct violation public of a expectations able Court, to prescribed by Supreme judicial offi- if a officer’s conduct. Even wit, of Judicial 2 of the Code reasonably Canon could result cer’s conduct (Article V, disrepute or not conduct "whether office into 5. We note that the Constitution capacity or acting 18(d)(1)) may in a while provides judicial officer be occurred that a prohibited by brings law.” disciplined conduct which Conduct, notion, provides Consistently which “integrity” as follows: “A with this impropriety should avoid and the as follows: defined appearance impropriety in all his ac- unimpaired 1: An condition: SOUND- judge tivities. A. A respect should NESS comply with the law and should conduct firm esp. 2: adherence to a code of moral himself at all times in a manner that or artistic values: INCORRUPTIBILITY promotes public integ- confidence quality being complete 3: the or state of rity impartiality judiciary. B. syn, undivided: see COMPLETENESS judge A family, should not allow his HONESTY social or other relationships to influence judgment.” his conduct or Collegiate Dictionary, Webster’s New Count 6. Respondent engaged The Moreover, Supreme our Court has held conduct in violation of a canon or rule that: prescribed by Court, primarily pur- Canon 1 is a statement of wit, 3A(3) Canon of the Code of Judicial construction, pose and rule of rather than Conduct, provides as follows: “A. separate requires rule of It conduct. Adjudicative Responsibilities A that each of the other Canons be construed patient, should dignified, in accordance with the Code’s fundamental litigants, jurors, witnesses, courteous to purpose ensuring independence both the lawyers, and others with whom he deals integrity judiciary. in his official capacity, and should re- quire lawyers, similar conduct of and of Larsen, I, Appendix In the Matter 532 Pa. staff, officials, his court and others sub- 326, Recently 616 A.2d we ject to his direction and control.” Smith, emphasized concept supra, at Count 7. engaged p. where we said as to Canon 1: conduct in aof canon or rule language violation of Canon 1 is hortative prescribed Court, thé oriented, goal and does not set forth *16 wit, 3A(4) Canon of the Code of Judicial specificity precise with nature of the Conduct, provides as follows: “A conduct and standards to which it is aimed. judge every should person accord to who and where we stated as to Canon 2: legally in proceeding, interested a or 2 in general Canon lawyer,
his full is directed towards right to be heard accord- law, and, potentially conduct ing to which could cause the except by as authorized law, public litigants judge or to believe that a parte must not consider ex commu- acting impartially.6 concerning pending proceed- nications ing.” Thus we conclude that the conduct subject and Canon of Canon proscribed by Canons 1 in and does not Counts 4 and are directed at conduct clude the conduct of itas related impugn which would or detract from the Brueggman. to Heather (Canon 1) “integrity independence” and (Canon 2) Finally, the Board contends re “integrity impartiality” spondent’s regard conduct to judiciary. with Ms. “Integrity” must be read in Brueggman pari violated Canon 3 subsections “independence” materia with in Canon A(3) (4). However, 3A, Canon under “impartiality” and with Canon Both included, which both subsections are is limit those words and both of these Canons judicial “Adjudicative judges carefully preserve ap exhort to all ed to the officer’s Re even-handedness, pearance sponsibilities”. we believe the conduct favoring of not Since case, adjudi appearing respondent’s or to favor in a either side at issue is unrelated to being appearing responsibilities, free from influence. cative we conclude that "convey knowingly permit 6. The instructions contained in subsection B. of should not or others judge convey impression spe- Canon 2: that "a in a should not allow his to are him”, family, provide relationships position social or further other to influence cial influence judgment” support interpretation his conduct or and that he for this of Canon 2. activity activity, only political which is the constitute violation of conduct does not (4) proscribed. 3A. subsection Canon either engaged in Count 8. The activity in Sec- proscribed forth The is set 17(b) V, § of Article conduct violation tion 2 of the as follows: Guidelines Constitution, that, Ac- Political On Partisan Prohibition engaged in conduct in violation of he has shall tivity. employees Court-appointed 3A(3) 3A(4) 1, 2, of the Code Canons partisan any form not be involved in of Judicial Conduct. activity. political respondent’s conduct did not consti- Since expression, the that, very It from its is clear of the with tute a violation Canons activity” does not “partisan political term charged, which he it does not constitute activity. non-partisan political include 17(b) V, § of Article of the Penn- violation Moreover, Court reiterates sylvania Constitution. term by declaring that the former distinction A, summary, as Part we find that the in Sec- latter when specifically excludes the by has and convinc- Board established clear defines the the Court tion of the Guidelines respondent’s ing conduct as evidence by 2 as follows: activity prohibited Section brought Brueggman related to Heather (a) activity’ ‘partisan political term disrepute charged as office into activi- [describing included shall include Count 3. involvement but shall not include ties] (Em- ... organizations ... non-partisan 2. PART B added.) phasis charges respondent In Part B Board provi- non-partisan violation of various constitutional Retention elections of the and violation of various Canons constitutional very
sions
nature as well
their
(Counts 9-15)
15(b)
V,
edict,
Pennsylva-
all
Conduct
Code
Judicial
for Article
arising
alleged
provides:
out of his
violation of the
nia Constitution
Court,
Order
justice
[of
If a
files declaration
No.
dated June
Administration Docket
his name
candidacy
election]
for retention
promulgated
and the Guidelines
there-
without
submitted
the electors
shall be
(Count 16).
under
designation,
separate judicial
on a
party
voting
separate column on
charges
Board arise from the
or in a
ballot
only if
court-ap-
he shall
...
to determine
requests
respondent of three
machines
added.)
(Emphasis
employees
campaign
in office.
pointed
assist
his
be retained
*17
general
election
for retention
concept
election was
the
of retention
When
respondent
charges
of 1993. The Board
by
delegates
the
to the Constitution-
adopted
Guidelines which
violation of Section of the
1967-68,
delegates
the
did
al
of
Convention
county
of
requires
each
the President
widespread
response to a
consensus
so in
the
of Common Pleas
enforce
judiciaiy
the
upon
need to remove
the
Guidelines.
least, hope-
political process
partisan
the
—at
judges.7
elector-
fully, after
were
respondent
not
that
did
We conclude
concept and
approved the
subsequently
ate
4 of the Guidelines because
violate Section
to make the
was amended
the Constitution
the
aforementioned
activities of
three
the
law of the
process the
retention election
respondent’s
cam
employees in
retention
political Commonwealth.8
partisan
not
paign did
constitute
See,
The Judicia-
Manual No.
Delegate
47-48 and Reference
example,
Warren
William
7.
(Lackawanna):
Delegates
the Constitu-
ry, prepared for the
"I think the intention
Scranton
be,
Prepa-
objective
Pennsylvania
and their
the
should
of
of this Convention
tional Convention
be,
Committee,
politics
judiciary
§
out
all
ratory
of
to take
5.6.1.
should
up
Debates of
Constitu-
down the line.”
election
that the retention
II,
8.
It merits mention
1967-1968,
p. 1032.
Vol.
Convention
tional
justices. The
Laub,
to district
process does not extend
also,
by Judge Burton R.
See
Address
judi-
take the
program Governor Scranton —to
County,
of
Judge of Erie
Pleas
former Common
line",
School,
ciary
up and down the
pp.
politics "all
out of
Id. at
Law
then Dean of Dickinson
activity
V,
17(b)
Since the
of
court-appointed
§
6. a
of
violation Article
of the
employees in respondent’s
Pennsylvania
retention election
Constitution because it is
(Count
proscribed partisan
effort was not the
politi-
of
violation
Canons
and 2
activity,
cal
charges
we conclude that the
22),
through
Counts 9
not
have
been estab-
V,
17(b)
§
violation of Article
of the
lished.9
Pennsylvania Constitution because it is
a violation of the Crimes
Code
3.PART C
(18
Pennsylvania
§
Pa.C.S.A. 4902 and
4903) (Count 23),
§
In Part
Complaint
C of the
the Board
V,
17(b)
§
violation Article
charges that the “Committee to Retain Rich-
Pennsylvania Constitution
because
ard D.
Judge”
Cicchetti as President
filed
(25
violation
the Election Code
Campaign Expense
two
Reports,
No-
one on
3249) (Count 24),
§
Pa.C.S.A.
vember
1993 and
on January
one
1994, both of which contained false
(d)
informa-
8.4(b), (c),
9. a violation of Rules
(e)
tion in violation
Election Code
that
Pennsylvania
Rules of Pro-
(Count
upon
25).
executed
re-
affidavits
both
fessional Conduct
ports attesting that the
Committee had
willWe
address these nine
Counts
any provision
violated
of the Election Code
order
which the Board has recited the
when,
fact,
knew
he
those
were
statements
Counts.
earlier,
false. As noted
find
we
Count 17. Misconduct in office.
charge
Board has
established this
clear
convincing
evidence.
on
Based
our definition of the of
fense, set out earlier in our discussion of
charges
The Board
that the execution
Count we find that respondent’s execution
respondent of
two
these
false
sub-
affidavits
upon
Campaign
of the affidavits
Expense
jects
V,
discipline
him to
under Article
Reports
was not misconduct
office inas
18(d)(1)
Constitution
reports
much as the execution of these
was
because
conduct constitutes:
not done in
course of his official
(Count 17),
1. misconduct in office
duties.
prejudices
proper
2. such that
admin-
prejudices
Count
Conduct
(Count
justice
18),
istration of
justice.
proper administration of
brings
3. such that
office into
We refer to our earlier discussion of this
(Count 19),
disrepute
proscription
canonical
in connection with
4. a violation of Canon 1 of
the Code
expressed,
there
Count and for
reasons
(Count 20),
Judicial Conduct
find that the execution of the affidavits
Campaign Expense Reports
prej-
a violation of Canon 2 of the
Code
did not
(Count 21),
justice.
Judicial Conduct
the administration
udice
seem, therefore,
7, supra
easily distinguish
see footnote
We
case because there
—would
goal
have fallen somewhat short
at the
political par-
candidate
the candidate of two
seems,
*18
disparity
Constitutional Convention. The
requires
specifically
ties whereas the constitution
well,
somewhat anomalous since the duties of
that the retention candidate’s name be submitted
justice bring
a district
the holder of that office
party designation."
to the
Moreover,
"without
electors
frequent
into closer and more
contact with the
by
nomination
the Democratic and
pleas
electorate than a
appellate
of the common
preclude competi-
Republican parties does not
Thus, might
the
courts.
well serve
parties
In a
tion from other
or other candidates.
citizenry
legisla-
were
of the Commonwealth
the
simply
competition
there
no
retention election
dissimilarity.
ture to visit this
(except
might
the
such as
candidate's record
1987,
Finally,
provide.)
the
Court
Court
We are aware that
has held
were
the Guidelines which
“intended to
issued
court-appointed employee
that a
who was nomi-
clarify”
existing
previously
policy,
its
and the
by
Republican
nated
both the Democratic
here,
Guidelines,
specifically
control
ex-
which
parties
subject
proscription against
non-partisan
organiza-
...
clude "involvement
partisan political
was in
at
activities which
effect
See,
tions.”
that time.
In re Prohibition
Political
Activities,
554,
(1977).
473 Pa.
Counts
21 and
chise
V,
Article
violation of
1 and
317 repre- Id. The Court report there reiterated a well estab- filed November 1993 Meese, principle lished itas affirmed the dismissal of that Roberta Jamie Gammon sented charge perjury the of under the Crimes Raymond paid to and Ann had been $1500 Code: “Party them purchase reimburse for the is, fact, respondent
It
in
policy
Supplies”.
the
law
to
This was
and
the
not
false
permit prosecutions
general
pro-
under the
knew it. He knew because Roberta Meese
(a)
him,
visions of
penal
code when there are
to
he
that
delivered
cash
so
knew
Gammon,
applicable special provisions
she,
Raymond,
available.
nor
nor
had not
$1500,
purchased party supplies
at
A.2d
851. See
v.
also Commonwealth
(b)
money
no
from
that
had received
Brown,
(1943);
346 Pa.
A.2d
Committee.
Buzak,
Pa.Super.
Commonwealth v.
(1962);
15. The execution of MAGARO,Judge, concurring and upon false affidavits Campaign two Ex- dissenting. pense Reports does not constitute: join opinion I in the of the in all Court (a) office; misconduct respects except portion expressed (b) prejudices conduct which the admin- PARTB. justice; istration of In PART B the Court holds that the Order (c) brings conduct which of- Court, of the 82 Judicial Adminis- disrepute; fice into tration No. Docket dated June (d) a of violation Canon of the Code thereunder, promulgated Guidelines Conduct; Judicial prohibiting partisan political activities court-appointed employees, apply (e) does not violation Canon 2 of the Code respectfully retention elections. I dissent Conduct; because I do not believe (f) V, 17(b) § violation Article of the intended to make such a distinction. Pennsylvania Constitution because vio- of a lation of Section 4902 recognize, out, I majority points as the (a) Crimes Code inasmuch as can- activity proscribed by the Guide- prosecuted not under those Sections of “partisan, political activity” lines limited (b) the Crimes Code because the same con- Constitutional Amendment estab- duct has at the same charged time been lishing process pro- the retention election another, specific violation of stat- more vides for the submission the candidate’s ute, viz., Election Code. party designa- name to the electors “without Nevertheless, tion”. is no that a there doubt by respondent 16. The execution partisan political retention election can be a upon Campaign affidavits the two Expense affair. that, Reports attesting to the best of his belief, knowledge and the Committee Initially, pointed had it should be out that this any provision of activity violated the Election Code exemption political Court’s false, wilfully misleading was a court-appointed employees fraudulent elec- retention only statement violation of section 1629 tions would extend not to those who Code, § Election 25 P.S. aid effort retain candi- would date, but also to those who would aid an by respondent 17. The execution his or ouster. effort achieve her Campaign Ex- false affidavits two V, is, Reports pense reality at violation Article least Common- 17(b) wealth, § judges be- are members of one or Constitution viz., law, They prohibited by political party. so cause that conduct another are no less Code, Pa. Section of the Election when stand retention. constitu- permits scheme for retention elections tional *22 candidate; against policy broadly applied and militate permits the be opposition to a excep- an just finding a an intention create vote “No”—not because the electors to may In re Prohi- performance per- in be tion for elections. In office retention candidate’s substandard, Activities, any for Pa. ceived to have been but Political bition of reason, identity (1977), including Supreme the of the candi- Court stated A.2d 1257 the Thus, political reality party. page date’s A.2d at 1259: any opposition to a candidate reten- memoranda, course, purpose of certainly any opposition organized tion — —is only independence, to maintain not likely opposing politi- to come from the most judicial integrity impartiality of the case, party. cal In such a what would follow system appearance of these also but partisan political campaigns con- would be mixing political and The vice of qualities. partisan political election. In in ducted judicial require activity too obvious case, exempt elections are such a if retention Only by steadfast herein. elaboration Guidelines application of the Order and from activity partisan political separation Court, this Court con- Supreme of the can the confi- from the function cludes, employees be court-appointed would public judges of the courts and dence all of activities1 engage free to or merited and maintained. Supreme has forbidden. Court employ- my opinion, court-appointed if In reality I believe this to be permitted reten- to work ees Common- process retention election elections, public tion the confidence of might have the inten- wealth —whatever been diminished, judges rather courts and will be delegates at the Consti- hopes tions or than and maintained.” “merited Moreover, I tutional 1967-68. Convention B of Consequently, from PART I dissent recognized Supreme this to believe the Court Opinion as Court’s well this the Discussion ex- thus did not intend to be the case and 10 and of Law Nos. as from Conclusions operation from elections clude retention court-appointed joins Concurring on activities of of its ban in this Judge SWEENEY in its 1987 Order employees contained Dissenting Statement. otherwise, indeed to To believe Guidelines. otherwise, finding requires a
hold Court, having Supreme announced broad political activity policy prohibiting partisan employees, by court-appointed intended to exception policy to that for reten- an create WALTERS, District In Paul Andrew re thus, elections, and, to treat intended tion Magisterial in and for Justice judi- differently all other those elections District 19-3-10. any such intention I believe cial elections. implica- inference should be found No. 3 JD by specific tion, expressed only it is if but Discipline of Judicial Court language in the language. is no such There Pennsylvania. 29,1987 June Order of the Court promulgated thereun- nor in the Guidelines 2,May der. fact, comments purpose memoranda on of earlier subject2 an intention
on indicate and 1977 in 1976 were issued polling place Memoranda working on Election at a 1. "... n Pennsylvania prohib- political Day, performing work in the Court Administrator volunteer political employ- by court-appointed soliciting activity campaign, campaigns, iting political contributions soliciting from a contributions ees. organization.” political action committee Activity Regarding B Court- Political Guidelines 1(a). Employees Appointed