In Re Complaint of Judicial Misconduct ( 2012 )

FOR PUBLICATION
JUDICIAL COUNCIL
OF THE NINTH CIRCUIT


IN RE COMPLAINT No. 11-90135
OF JUDICIAL MISCONDUCT
 ORDER
Filed August 24, 2012
ORDER
KOZINSKI, Chief Judge:
Complainant alleges that a district judge mishandled the
termination of two former employees and interfered with one
of the employee’s efforts to get a new job. Complainant is not
one of the employees and claims no direct knowledge of these
allegations.
“Personnel decisions are administrative functions, not judi-
cial functions.” In re Complaint of Judicial Misconduct, 366
F.3d 963, 965 (9th Cir. 2004). Though such decisions “may
be essential to the very functioning of the courts, [they] have
not . . . been regarded as judicial acts.” Forrester v. White,
484 U.S. 219, 228 (1988). It is possible, nonetheless, for a
judge to commit judicial misconduct when performing admin-
istrative functions, such as by engaging in embezzlement or
sexual harassment. But any such charges of misconduct must
allege more than disagreement with the judge’s administrative
decision. The complaint must document conduct by the judge
that is wrongful, independent of whether the judge’s decision
is correct. The misconduct process cannot be used to second-
guess the judge’s administrative decision; nor can it result in
a reversal of that decision.
9635
9636 IN RE COMPLAINT OF JUDICIAL MISCONDUCT
Even if complainant’s allegations were true, they don’t
amount to misconduct. Complainant alleges that the judge
fired the employees, but then “claim[ed] untruthfully that
each had ‘voluntarily’ terminated their employment.” Giving
employees the option of voluntary separation in lieu of termi-
nation isn’t uncommon or improper. It is often beneficial to
the employee who can avoid the taint of an involuntary sepa-
ration, and saves the employer the time, trouble and delay of
a grievance. This is a useful management tool, not miscon-
duct.
Complainant also alleges that the judge ordered other
employees not to talk to the terminated employees on pain of
being fired. But limiting whom employees may speak to, on
and off the job, can be a legitimate management prerogative.
For example, judges may forbid court employees from having
private conversations with litigants or lawyers about pending
cases. This prerogative can be exercised too broadly, but it
does not amount to misconduct unless it is done for an
improper motive, such as covering up wrongdoing. Complain-
ant here has alleged no improper motive or other wrongdoing.
Complainant alleges other irregularities in the termination
process, but, even if true, they would amount to no more than
errors of the type that must be corrected, if at all, through the
grievance process.
Finally, complainant alleges that the judge told one of the
employees that he would disclose the employee’s perfor-
mance issues to prospective employers. Telling potential
employers about past performance issues isn’t improper.
Indeed, employers often serve as references for former
employees by writing recommendations or responding to que-
ries from potential employers. It is not misconduct to let
employees know that their performance will be reported to
prospective employers.
Because complainant’s charges wouldn’t constitute mis-
conduct even if true, the complaint is dismissed as groundless.
IN RE COMPLAINT OF JUDICIAL MISCONDUCT 9637
See In re Complaint of Judicial Misconduct, 569 F.3d 1093,
1093 (9th Cir. 2009); Judicial-Conduct Rule 11(c)(1)(A).
DISMISSED.