Disciplinary Counsel v. Wochna.

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. Wochna, Slip Opinion No. 2018-Ohio-4492.]
NOTICE
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SLIP OPINION NO. 2018-OHIO-4492
DISCIPLINARY COUNSEL v. WOCHNA.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Disciplinary Counsel v. Wochna, Slip Opinion No.
2018-Ohio-4492.]
Judge—Misconduct—Violations of the Code of Judicial Conduct and the Rules of
Professional Conduct for conduct that erodes public confidence in the
judiciary and that creates the appearance of judicial impropriety and for
engaging in conduct involving dishonesty, fraud, deceit, or
misrepresentation—Conditionally stayed six-month suspension.
(No. 2018-0814—Submitted July 18, 2018—Decided November 8, 2018.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2017-049.
________________
Per Curiam.
{¶ 1} Respondent, Charles Francis Wochna, of Bay Village, Ohio, Attorney
Registration No. 0015445, was admitted to the practice of law in Ohio in 1985. In
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October 2017, relator, disciplinary counsel, alleged that while serving as a
magistrate in the Cuyahoga County Court of Common Pleas, Juvenile Division,
Wochna violated the Code of Judicial Conduct and the Rules of Professional
Conduct by failing to accurately report his work hours and leave on his timecard.
{¶ 2} The parties entered into stipulations of fact, misconduct, and
aggravating and mitigating factors and jointly recommended that Wochna be
suspended from the practice of law for six months, all stayed on condition. Based
on those stipulations and the evidence adduced at the hearing, a panel of the Board
of Professional Conduct agreed that Wochna committed the charged misconduct
and found that the parties’ recommended sanction was reasonable and appropriate.
The board adopted the panel’s report and recommendation, and no objections have
been filed.
{¶ 3} We adopt the board’s findings and recommended sanction.
Misconduct
{¶ 4} As a magistrate, Wochna was required to work eight hours a day, 40
hours a week. If he worked less than eight hours a day, he was required to use his
accrued leave time to make up the difference. Pursuant to the juvenile court’s
flexible-schedule policy, Wochna submitted a request to work from 7:00 a.m. to
3:00 p.m. beginning in December 2015. The court approved his request.
{¶ 5} Beginning on June 13, 2016, and continuing every two weeks
thereafter, Wochna received an automated e-mail from Kronos, the court’s
electronic timekeeping system, stating:
Please review and approve your time card; your signature
indicates that you have verified and approved the accuracy of your
time card. Please be advised that falsification of electronic time
records is a work rule violation and may result in discipline
including removal from employment.
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January Term, 2018
{¶ 6} After receiving a complaint alleging that Wochna had excessive
absences from work, the juvenile court audited the timecards submitted by all the
court’s magistrates from March 15 to September 2, 2016. The court compared the
times the magistrates reported on their timecards to records of their employee-
identification-keycard swipes and video footage from courthouse security cameras.
The audit showed that Wochna had falsely entered his start or end time into his
Kronos timecard on 99 of the 122 work days during that period and received
$2,155.61 in pay for 51.98 hours that he did not work.
{¶ 7} Wochna’s time discrepancies ranged from a few minutes to over four
hours and inflated his work time by an average of .53 hours per day. For example,
on March 18, 2016, Wochna entered the parking garage at 7:15 a.m. and left the
parking garage at 11:25 a.m. However, on his timecard that day, Wochna falsely
reported that he arrived at 7:00 a.m. and left at 3:00 p.m., thereby inflating his work
time by 3.83 hours. Despite the fact that he failed to accurately record the times
that he commenced work, ended work, or used earned leave time, Wochna
personally approved each of the 13 audited biweekly timecards.
{¶ 8} Following a September 2016 disciplinary hearing conducted by his
employer, Wochna was found to have violated seven workplace rules prohibiting
(1) falsification of documents, (2) dishonesty and misrepresentation, (3) misuse or
theft of county property, (4) conduct unbecoming a court employee, (5) job
abandonment and/or failure to report for duty as scheduled, (6) leaving one’s work
area without permission, and (7) other acts of misfeasance, malfeasance, or
nonfeasance. The court terminated his employment effective October 3, 2016.
{¶ 9} Wochna attempted to make restitution both before and after his
workplace disciplinary hearing, but his employer declined the offer. In February
2018, the county finally accepted his payment.
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{¶ 10} In accord with the parties’ stipulations, the board adopted the panel’s
findings that Wochna violated Jud.Cond.R. 1.2 (requiring a judge or magistrate to
act at all times in a manner that promotes public confidence in the independence,
integrity, and impartiality of the judiciary, and to avoid impropriety and the
appearance of impropriety) and Prof.Cond.R. 8.4(c) (prohibiting a lawyer from
engaging in conduct that involves dishonesty, fraud, deceit, or misrepresentation).
Sanction
{¶ 11} When imposing sanctions for judicial and professional misconduct,
we consider all relevant factors, including the ethical duties violated, the
aggravating and mitigating factors listed in Gov.Bar R. V(13), any other relevant
factors, and the sanctions imposed in similar cases.
{¶ 12} As aggravating factors, the parties and board agreed that Wochna
acted with a dishonest or selfish motive and engaged in a pattern of misconduct.
See Gov.Bar R. V(13)(B)(2) and (3). Agreed mitigating factors included the
absence of prior discipline; a timely, good-faith effort to make restitution; full and
free disclosure to the board and a cooperative attitude toward the disciplinary
proceedings; positive character evidence; and the imposition of other penalties or
sanctions (i.e., the termination of Wochna’s employment as a magistrate). See
Gov.Bar R. V(13)(C)(1), (3), (4), (5), and (6).
{¶ 13} “Public confidence in the judiciary is eroded by improper conduct
and conduct that creates the appearance of impropriety.” Jud.Cond.R. 1.2,
Comment 1. For that reason, judges and other persons authorized to perform
judicial functions—like magistrates—are subject to the highest standards of ethical
conduct. See, e.g., Disciplinary Counsel v. Elum, 133 Ohio St. 3d 500, 2012-Ohio-
4700, 979 N.E.2d 289, ¶ 21; Application, Section I(B), Code of Judicial Conduct
(“A judge * * * is a lawyer who is authorized to perform judicial functions within
a court * * *” [emphasis added]). In determining the appropriate sanction for
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January Term, 2018
Wochna’s misconduct, the board examined Disciplinary Counsel v. Kramer, 149
Ohio St. 3d 425, 2016-Ohio-5734, 75 N.E.3d 1174.
{¶ 14} Kramer was found to have falsified his time records while serving as
a hearing officer at the Cuyahoga County Board of Revision—though he was not
subject to the Code of Judicial Conduct because he did not perform judicial
functions within a court. Investigations revealed at least 129 discrepancies between
the times Kramer reported on his timesheets and the records of his parking-garage
activity. We found that Kramer violated Prof.Cond.R. 8.4(c) and 8.4(d)
(prohibiting a lawyer from engaging in conduct that is prejudicial to the
administration of justice). And because we found that Kramer’s misconduct was
limited to his timekeeping practice and that he was unlikely to commit future
misconduct, we suspended him from the practice of law for one year, stayed in its
entirety on the condition that he engage in no further misconduct. Id. at ¶ 35. Like
Wochna, Kramer had no prior disciplinary record, submitted evidence of his good
character, and had other sanctions imposed for his misconduct, as he was forced to
resign from his employment. Id. at ¶ 19. And both attorneys acted with a dishonest
or selfish motive and engaged in a pattern of misconduct. But while Wochna
immediately accepted responsibility for his actions, Kramer failed to acknowledge
the wrongful nature of his misconduct. In his resignation letter, Kramer denied
having committed any violation of law. Id. at ¶ 14-15. At his disciplinary hearing,
he testified that his false entries were “mistakes” and “[s]loppy bookkeeping,” id.
at ¶ 20, and eventually stated that his conduct was “wrong,” but the panel did not
find his testimony to be credible, id. at ¶ 14-15.
{¶ 15} While recognizing that Wochna’s misconduct “tarnished the
reputation of the judiciary,” the board concluded that his immediate acceptance of
responsibility for his misconduct, combined with his immediate offer of repayment
and his cooperative attitude toward the disciplinary process, warranted the
imposition of a lesser sanction than that imposed in Kramer. Therefore, the board
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recommended that Wochna be suspended from the practice of law for six months
and that the entire suspension be stayed on the condition that he engage in no further
misconduct. Having reviewed the record, we agree with the board’s findings and
recommendation.
{¶ 16} Accordingly, we suspend Charles Francis Wochna from the practice
of law for six months, with the entire suspension stayed on the condition that he
engage in no further misconduct. If Wochna fails to comply with the condition of
the stay, the stay will be lifted and he will serve the full six-month suspension.
Costs are taxed to Wochna.
Judgment accordingly.
O’CONNOR, C.J., and O’DONNELL, FRENCH, FISCHER, DEWINE, and
DEGENARO, JJ., concur.
KENNEDY, J., concurs in judgment only.
_________________
Scott J. Drexel, Disciplinary Counsel, and Joseph M. Caligiuri, Chief
Assistant Disciplinary Counsel, for relator.
Jerome A. Milano, for respondent.
_________________
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