In Re Boardman

2009 VT 42, 979 A.2d 1010, 186 Vt. 176, 2009 Vt. LEXIS 46
CourtSupreme Court of Vermont
DecidedMay 1, 2009
Docket2008-212
StatusPublished
Cited by15 cases

This text of 2009 VT 42 (In Re Boardman) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Boardman, 2009 VT 42, 979 A.2d 1010, 186 Vt. 176, 2009 Vt. LEXIS 46 (Vt. 2009).

Opinion

Per Curiam.

¶ 1. A formal complaint to the Judicial Conduct Board charged respondent, an assistant judge for Windsor County, with two counts of misconduct; the first concerned an alleged conflict of interest resulting from respondent’s relationship with Emerge, a nonprofit corporation providing services to the Windsor Family Court; the second alleged a failure to maintain the dignity *180 and integrity of his office during a reelection campaign. Following a hearing, the Board issued an order sustaining both charges, finding that respondent had violated several canons of the Code of Judicial Conduct, and recommended the following sanctions: (1) suspension from the performance of all assistant judge duties, including adjudicative and administrative functions, for a period of six months and until respondent resigns from the board of Emerge and any other organization doing business with the county; (2) completion of a judicial ethics course; and (3) recusal from all county funding decisions involving any organization in which respondent has served on the board or governing body within the last five years.

¶ 2. Although respondent raises a number of claims, he principally denies any conflict of interest in his relationship with Emerge or impropriety in connection with his reelection campaign. The Vermont Association of County Judges (VACJ) has filed an amicus curiae brief, urging the Court to refrain from suspending respondent, or any assistant judge, from the performance of administrative duties, and asserting that the recommended sanction is disproportionate to the offenses. As explained below, we affirm the Board’s findings and conclusions on the conflict-of-interest charge, generally adopt its proposed sanctions, and impose an additional sanction barring respondent from participating in any case that involved Emerge in the past, or that involves Emerge for one year in the future following the completion of his suspension.

I.

¶ 3. The material facts as found by the Board may be summarized as follows. Respondent is one of two elected assistant judges for Windsor County. He was first elected in 1991 and has since served continuously in that office, his most recent reelection having occurred in November 2006. Respondent is also one of the founders, and a current board member, of a nonprofit corporation called Emerge, which provides supervised parent-child contact and visitation services to the family court in high-conflict cases. Emerge is currently the only nongovernmental entity to receive money from Windsor County. The Emerge bylaws set aside a seat on its board for the Windsor County assistant judges so long as it receives funding from the county. Respondent is the only assistant judge, however, to have served on the board, the others having declined membership.

*181 ¶ 4. As the Board here found, Emerge has “struggled financially” since its inception. It has received annual grants from Windsor County, including $12,000 in county funds during each of the two most recent fiscal years, and favorable treatment in its use and ultimate purchase of a county building, the former sheriff’s office located on seven acres in the Town of Hartford. This transaction forms the basis of the conflict-of-interest charge and requires some additional explanation. Before the office building in question was vacated, the county listed the property for sale with an experienced local broker, setting the price — in consultation with the broker — at $159,000. The asking price was later raised to $189,000. In April 2002, the county accepted an offer from Emerge and signed a purchase and sale agreement for $160,000. Respondent testified that he had excused himself from Emerge board meetings when the transaction with the county was discussed, but there is no dispute that respondent accepted the Emerge offer on behalf of the county and signed the purchase and sale agreement.

¶ 5. Emerge had until June 15, 2002, to secure financing but failed to do so and the transaction was not completed. The county did not, however, treat the failure as a default and relist the property for sale. Instead, Emerge moved into the building and commenced operations in the Fall of 2002, operating under an unsigned month-to-month lease/purchase agreement for the next five years until it executed another purchase and sale agreement with the county in July 2007. During this period, Emerge was chronically late with its monthly rental payments, as well as its share of the electric bills, so that by the time of the closing on the second deal it owed the county some $12,750 in back rent and $10,703 in unpaid electrical charges.

¶ 6. The Board found, and the evidence shows, that respondent was the “go to” person in the county responsible for the ongoing landlord-tenant relationship with Emerge, and was further involved in helping Emerge to obtain financing for its ultimate purchase of the property in 2007. Prior to the sale, however, a second potential purchaser appeared in the form of the Town of Hartford. In August 2006, the Hartford town manager had written to respondent and the other assistant judge expressing a strong interest in purchasing the property, with the understanding that the purchase price remained at $160,000. The town sent a follow-up letter to respondent in March 2007, and a series of *182 e-mails in March and April reiterating its keen interest in purchasing the property for cash. Although the county had no binding purchase and sales agreement or purchase option with Emerge at the time, it did not respond favorably to the town’s inquiries, but instead sold the property to Emerge a few months later, in July 2007. Credits granted by the county reduced the amount paid by Emerge to $93,000, and additional credits reduced the amount actually received by the county to about $72,000. The Board found, and the evidence showed, that respondent wanted to sell the property to Emerge to the exclusion of any other parties.

¶ 7. Based on the forgoing, 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 “cast reasonable doubt on [his] capacity to act impartially as a judge” and “interfere[d] with the proper performance of [his] judicial duties,” in violation of Canon 4(A)(1) and (3).

¶ 8.

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Bluebook (online)
2009 VT 42, 979 A.2d 1010, 186 Vt. 176, 2009 Vt. LEXIS 46, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-boardman-vt-2009.