Based on the findings of a judicial conduct panel, the Wisconsin Supreme Court suspended a former municipal court judge for 3 years from eligibility for appointment as a reserve judge for a “pattern of obsessive conduct about whether [the court manager] liked him as a friend” and trying to intimidate her or retaliate against her for reporting him. Judicial Commission v. Kachinsky (Wisconsin Supreme Court July 9, 2019).
The judge was the part-time, elected judge for the Village of Fox Crossing Municipal Court, which holds sessions approximately 3 Thursday evenings a month for 90-120 minutes. In the spring of 2016, the judge hired M.B. as the full-time court manager. The judge and M.B. shared a small office in the municipal building. Even before M.B. was hired, she and the judge had been “friends” on Facebook; each had hundreds of friends on Facebook, including a number of mutual friends. At the beginning of M.B.’s employment, they had occasional conversations about their personal lives, developed a friendship, and engaged in occasional joint activities outside of work.
Beginning in March 2017, however, their relationship became strained after “a couple of incidents that M.B. found concerning.” First, in a public comment to a post on M.B.’s Facebook page, the judge stated that M.B. was “on her second honeymoon” at “an undisclosed location.” M.B. informed him that this was incorrect, and he apologized. A few days later, the judge hid behind a counter at the court office, and, when M.B. walked in, he popped up and shouted “roar,” startling M.B. During that visit, the judge’s “loud and boisterous” conduct disturbed village employees. In an e-mail after the visit, the judge told M.B. that he hoped his visit had made her day and that it was something he was “more than happy to do for my best friends.” M.B. told the judge in an e-mail that “it would help her focus on her job if they kept their relationship work-related.” In an e-mail in response, the judge agreed to minimize discussion of non-business matters during business hours but indicated that he wanted to continue to discuss their everyday personal lives.
After the judge sent numerous other e-mails to her about personal matters, M.B. filed a complaint with the village’s human resources manager. In a meeting the next day, the human resources manager explained to the judge the concerns about his behavior and developed guidelines, including that no personal information about colleagues would be shared on social media, that all phone and e-mail communications would relate to business matters, and that the judge would only visit the office once a week.
However, the panel found, the judge “was upset as a result of the meeting and was determined to express his displeasure to M.B. and to reject any limitation on communications to work-related matters.” The judge sent M.B. several e-mails that included personal matters, insisted that he needed to have a personal friendship with her, and invited her to participate in a non-work activity.
On 3 occasions, the judge went to the municipal court office, sat close to M.B.’s desk, facing her, and did nothing except tap his pen and make “cat noises;” on 1 visit, the judge “continued this extremely odd behavior for 45 minutes.” During one of the visits, the judge told M.B. a story about a dog being raped and then repeated the story.
In a telephone call, the village manager and the village attorney explained to the judge his potential violations of the village’s policy prohibiting harassment in the workplace, advised him to maintain professional decorum at work, and told him to stop communicating with M.B. about personal matters.
Over the following weekend, the judge told M.B. in an e-mail that he wanted to “hit the reset button,” claiming that it had not been clear to him that she wished to avoid after-hours activities with him but that he now understood. However, he also chastised M.B. for not telling him directly and said:
My main concern is that a “work only” discussion policy should not preclude normal “water cooler” discussion of things like the Packers, Badgers, child graduations, children having children, recent vacation adventures, etc. I need to know what you consider to be “over the line.” . . . Walking on eggshells during what should be relaxed casual conversations is not good for productivity or mental health. Your ideas on this are welcome.
The judge also complained that M.B. had “defriended” him on Facebook and encouraged her to reverse that decision.
After that e-mail, the village manager sent the judge a letter pointing out that he had violated the village’s direction not to discuss the personal relationship with M.B. and reminding him that he was not to engage in any communications with her beyond work matters.
Approximately 2 weeks later, the judge sent M.B. an e-mail that, he acknowledged, “violate[d] every principle we have talked about regarding office conduct the last few weeks” but continued, “Feel free to report me to HR. I feel spunky this morning.” The judge sent her other e-mails about having “a beer or wine summit” and ending “the strict restrictions on no nonwork related discussions and replace it with use of respect and common sense.”
In an e-mail to the human resources manager in June 2017, the judge claimed that the incidents about which M.B. had complained were “minor” and that her unwillingness to accept his view of how their relationship should work was detrimental to the municipal court office. He stated that he preferred not to work with “such a person any longer than possible,” suggested that the human resources manager advise M.B. to “give a little bit on the work-only thing,” and explained that the alternative was for him to terminate her employment. In a subsequent e-mail, the judge told the human resources manager that, although he had not made a final decision on whether to fire M.B., she had until 5:00 p.m. that day to decide if she accepted his “rules” for their professional and personal relationship. Later that day, the village attorney informed the judge that his conduct violated the village’s policy against harassment and that his threats to terminate M.B. constituted retaliatory conduct that, if carried out, would violate the law.
After receiving the letter, the judge “elevated his conduct.” He posted to his Facebook page that “[t]he sh— is not over. I might have an employee termination today. Not mine.” The panel found that, although “the post did not explicitly name M.B., the only conclusion a reader could draw was that M.B. was about to be fired because she was the only employee he supervised either at the municipal court or in his private law practice.”
On July 17, while alone with M.B. in the municipal court office, the judge lunged over her desk, knocking some items off and whispering to her: “Are you afraid of me now?” The panel found that the judge was attempting “to intimidate M.B. into acquiescing in his fixation on a personal relationship with her.”
That evening, the judge ran into something on his way out of the courtroom, and his arm began to bleed. He used his pay stub envelop to stop the bleeding then left the blood-stained envelope on his desk in the office where M.B. could observe it. The panel found that this “was an attempt either to intimidate M.B. or to elicit sympathy from her . . . , an intentional non-verbal communication that had nothing to do with work.”
In an e-mail later that evening, the judge told M.B.: “[I]f you want to restore a happy workplace, the first step is to stand up on your own and not use the Administration as a crutch. . . . I can overlook what I consider poor judgment in handling a situation. I cannot tolerate a weakling unwilling to have free and open discussions with the boss (or insubordination).”
On July 21, the Judicial Commission notified the judge that it was investigating allegations against him and advised him to “scrupulously avoid retaliatory conduct or witness intimidation.”
On July 26, the village manager held another meeting with the judge about keeping his relationship with M.B. work-related. After that meeting, the judge dropped a white flag he had fashioned from office supplies on M.B.’s desk and said, “Here you go, I surrender, you win.”
However, the Court stated, the judge “was far from ending his campaign.” For example, on October 27, the judge wrote a letter to M.B. reprimanding her for forwarding to the village manager e-mails that the judge had written to her. On November 2, in the presence of M.B. and the human resources manager, the judge mentioned Harvey Weinstein and Bill O’Reilly and stated loudly, “I don’t do that crap and you should get that through your thick head.”
The next day, the judge sent a letter to M.B. that stated: “By this time next week some things are going to happen that will cause a lot of fire and fury at the Municipal Building. No, I am not resigning. Just be psychologically prepared. Have a good weekend.” M.B. and villages officials were so disturbed by that e-mail that the village police were notified. When the police chief interviewed him about the e-mail, the judge giggled more than once.
On Saturday, November 25, the judge sent an e-mail scolding M.B. for ignoring a previous e-mail in which he had wished her and her family a happy holiday. The e-mail also stated: “Will not spend the next 1.5 years or 5.5 years working with someone who actively despises me. I have told you this many times. We are approaching the end of the line on this.” The e-mail concluded that, “There was an allegation missing from the additional letter from the [Judicial Commission]” and a picture of a kitchen sink was attached.
The next day, the judge dropped off a reprimand letter alleging that M.B. had falsely stated that he was stalking or tracking her in her complaint to the village 6 months earlier.
On Saturday, December 23, the judge wrote another letter of reprimand to M.B. based on her alleged refusal to return his Christmas greetings and her failure to respond positively to his efforts to improve workplace rapport. On his Facebook page, the judge posted a sad face emoji with: “Len Kachinsky was feeling sad. Few things are sadder than a co-worker who refuses to return a Merry Christmas greeting out of spite.”
Following additional e-mails and meetings, M.B. sought and received a harassment injunction against the judge.
Less than 2 weeks later, the judge left on his desk where M.B. would see it a poster with a picture of the village manager’s face and the caption: “I am from the government and I am here to help you. WWRD #notmetoo.” The judge also posted on his desk facing M.B.’s desk a copy of a page from the village personnel manual, entitled “Sexual Harassment,” with the word “sexual” highlighted 7 times in yellow marker. M.B. believed that the poster and the copy of the sexual harassment policy violated the terms of the harassment injunction. The police were contacted, and the judge was arrested.
On July 11, the state filed a criminal complaint charging the judge with 1 count of felony stalking and 2 misdemeanor counts of violating a harassment injunction. Shortly before the trial, the district attorney’s office dropped the misdemeanor counts. A jury found the judge not guilty on the felony charge.
The judge’s primary argument was that the village officials did not have the authority to regulate his “supervision of a resistant employee in an effort to ‘restore a level of personal rapport,’” which he believed was “a legitimate and laudable objective that is necessary for a workplace to perform effectively.” The Court concluded, however, that, regardless whether “he was legally obligated to abide by the directives given by representatives of the village, he was obligated by the relevant provisions of the Code of Judicial Conduct to maintain high standards of personal conduct and to act in a manner that promotes the integrity of the judiciary.” The Court explained:
We fail to see how staring at a court employee for 45 minutes while tapping a pencil and making cat noises constitutes the maintenance of high standards of personal conduct or promotes the integrity of the judiciary. Indeed, it does just the opposite. Serving the people as a judicial officer does not allow a judge to impose his/her every opinion about personal interactions on subordinate court personnel or to force those subordinates to be the judge’s personal friends.
Judges are entitled to ensure that their subordinate employees perform their work responsibilities in appropriate manners. Judge Kachinsky’s pattern of obsessive conduct about whether M.B. liked him as a friend clearly passed well over the line and brought the municipal court he administered into public disrepute. . . . The notoriety that resulted from his insistence that M.B. had to be not only his court clerk, but also his friend, certainly caused the residents of the Village of Fox Crossing who appeared in his court to question whether he had the temperament and stability to preside over their cases in a proper manner.
The Court stated that “M.B. was required to process case files and deal with the public as a manager of the municipal court, not to satisfy Judge Kachinsky’s personal opinion that employees must also be personal friends.” The Court noted that his acquittal on the felony stalking charge did not mean that he was innocent of the ethical violations.
An article on “Professional boundaries in the courthouse” about other judicial discipline cases involving attempts by a judge to force a close personal relationship with a court staff member was published in the summer 2018 issue of the Judicial Conduct Reporter.