§ 17-5-301 — Powers of board - Disciplinary counsel

(a) The board is given broad powers to investigate, hear, and determine charges sufficient to warrant sanctions or removal, and to carry out its duties in all other matters as set forth in this chapter. (b) The board is specifically authorized to administer oaths and affirmations, to issue process to compel the attendance of witnesses and the production of evidence, to conduct hearings, and to use, exercise, and enjoy any of the powers normally exercised by courts of record in this state. The Tennessee Rules of Civil Procedure are applicable, and the Tennessee Rules of Evidence govern the presentation of proof. The board shall conduct discovery and review the materials collected in camera; provided, that only materials relevant to the investigation shall be made public. (c) No action of the board is valid unless concurred in by a majority of the members voting upon the action. (d) The attorney serving as disciplinary counsel for the board immediately preceding July 1, 2019 shall relinquish the position and a new disciplinary counsel is to be appointed by the board. The disciplinary counsel shall serve at the pleasure of the board and may be removed by the board. The disciplinary counsel shall report to the board upon appointment. The disciplinary counsel may employ additional attorneys or staff for administrative support, subject to the approval of the board. Compensation for the disciplinary counsel and additional personnel is fixed by the board. This section shall not be construed to preclude disciplinary counsel employed by the board of professional responsibility from acting as disciplinary counsel and the staff and physical resources of the board of professional responsibility from being utilized, with the approval of the court, to assist in the performance of the disciplinary counsel's functions effectively and without delay. The board shall compensate the board of professional responsibility for the use of any such staff and physical resources. (e) The disciplinary counsel has the authority and duty to: (1) Receive and screen complaints, refer complaints to other agencies when appropriate, conduct preliminary investigations, make recommendations to the investigative panel of the board and, upon authorization, conduct full investigations, notify complainants about the status and disposition of their complaints, make recommendations to the investigative panel on the disposition of complaints after full investigation, file formal charges subject to approval of the investigative panel when directed to do so by the investigative panel, and prosecute formal charges; (2) Maintain permanent records of the operations of the disciplinary counsel's office, including receipt of complaints, screening, investigation, and filing of formal charges in judicial discipline and incapacity matters; (3) Draft decisions, orders, reports, and other documents on behalf of the hearing and investigative panels if directed by the board; (4) Compile statistics to aid in the administration of the system, including, but not limited to, a log of all complaints received, investigative files, and statistical summaries of docket processing and case dispositions, consistent with § 17-5-202 ; (5) Seek investigative assistance from the Tennessee bureau of investigation, or from any district attorney general and, in appropriate cases, employ private investigators or experts, as necessary, to investigate and process matters before the board. Such action may only be taken in concurrence with the applicable investigative panel; and (6) Perform other duties at the direction of a majority of the board. (f) (1) The board has the power to impose any, or any combination, of the following: (A) Suspension without impairment of compensation for such period as the board determines; (B) Imposition of limitations and conditions on the performance of judicial duties, including the issuance of a cease and desist order; (C) Private reprimand by the investigative panel. A private reprimand, whether imposed by the board or by an investigative panel, may be used in subsequent proceedings as evidence of prior misconduct solely upon the issue of the sanctions to be imposed; (D) Entry into a deferred discipline agreement; (E) Public reprimand; and (F) Entry of judgment recommending removal of the judge from office. (2) Disciplinary counsel fees and costs related to the hearing by a hearing panel shall not be taxed against the judge unless the sanction imposed requests the judge's removal from office. (g) For purposes of this part, the following definitions apply: (1) "Deferred discipline agreement" means a response to misconduct that is minor and can be addressed through treatment, training, or a rehabilitation program under which the judge agrees with the recommendation of the investigative panel of the board to undergo evaluation or treatment, or both; participate in educational programs; or take any other corrective action. Any other disciplinary sanction arising from the same conduct is suspended during the term of a deferred discipline agreement, and no further sanction may be imposed upon the successful completion of the deferred disciplinary agreement by the judge. The disciplinary counsel may proceed with other appropriate action upon a judge's failure to comply with the disciplinary agreement; (2) "Private reprimand" means a form of nonpublic discipline imposed by a letter that details the finding of minor judicial misconduct and enumerates the reasons that such conduct is improper or brings discredit upon the judiciary or the administration of justice; and (3) "Public reprimand" means a private reprimand that is released to the public. (h) A sanction imposed by the board does not violate the prohibition of Constitution of Tennessee, Article VI, § 7. (i) The board or the investigatory panel shall consider the following criteria in determining the sanction or combination of sanctions appropriate for the level of culpability involved in the judge's misconduct: (1) Whether the misconduct is an isolated instance or evidences a pattern of conduct; (2) The nature, extent, and frequency of occurrence of the acts of misconduct; (3) Whether the misconduct occurred in or out of the courtroom; (4) Whether the misconduct occurred while the judge was acting in an official capacity; (5) Whether the judge has acknowledged or recognized the occurrence, nature, and impropriety of the acts; (6) Whether the judge has made an effort to change or modify the conduct; (7) The level of sanction, if any, previously rendered against other judges for the same conduct; (8) Whether there have been prior complaints about the judge, except where prior complaints have been found to be frivolous, unfounded, or without jurisdiction pursuant to § 17-5-304 ; (9) The effect of the misconduct upon the integrity of, and respect for, the judiciary; (10) The extent to which the judge exploited the judicial position for personal gain or satisfaction; and (11) The sanction or sanctions imposed against other judges for the same or similar misconduct under the same or similar circumstances. (j) (1) The board may consider the following offenses in determining the sanction or combination of sanctions appropriate for the level of culpability involved in the judge's conduct: (A) Willful misconduct relating to the official duties of the office; (B) Willful or persistent failure to perform the duties of the office; (C) A violation of the code of judicial conduct as set out in Rule 10 of the Rules of the Tennessee Supreme Court; (D) A violation of the Tennessee Rules of Professional Conduct as set out in Rule 8 of the Rules of the Tennessee Supreme Court, as is applicable to judges; (E) A persistent pattern of intemperate, irresponsible, or injudicious conduct; (F) A persistent pattern of discourtesy to litigants, witnesses, jurors, court personnel, or lawyers; (G) A persistent pattern of delay in disposing of pending litigation; and (H) Any other conduct calculated to bring the judiciary into public disrepute or to adversely affect the administration of justice. (2) The legal analysis, findings of fact, and conclusions of law of a written opinion or order by a judge are not grounds for sanction under this subsection (j); provided, that the personal views of a judge contained within a written opinion or order by a judge are not protected by this subdivision (j)(2).

Legislative History

Amended by 2019 Tenn. Acts, ch. 496, s 1, eff. 7/1/2019. Acts 1979, ch. 356, § 11; T.C.A., § 17-811; Acts 1995, ch. 208, § 8; 2002, ch. 564, §§ 4 - 9; 2012 , ch. 819, § 4.