Not “a normal working environment”

Stating that it took seriously its responsibility for setting precedent concerning sexual harassment, “to protect the public by sending a strong message to members of the judiciary that abusing the trust of public employees and the public at large will result in significant consequences,” the Ohio Supreme Court recently suspended a former judge indefinitely from the practice of law for his predatory sexual conduct and other misconduct.  Disciplinary Counsel v. Horton (Ohio Supreme Court October 10, 2019).  The Court did note that “an indefinite suspension may not be appropriate in all cases of sexual misconduct or harassment” but that it was appropriate “given the number of other violations, the harm to individual victims and to the public trust, the significant number of aggravating factors, and the limited mitigating evidence.”

The judge had served on the Court of Common Pleas from 2006 until he joined the 10th District Court of Appeals in 2015.  He resigned effective February 28, 2019.

The Court found that the judge, while on the trial court, “created an inappropriate atmosphere in his office by telling members of his staff they were sexy during the work day and commenting on the attractiveness of other employees.”  For example, he told M.B., a law student intern, that he had asked her to attend a meeting so that he would have “something pretty to look at.”  Several members of his staff believed they could not turn down the judge’s frequent invitations to go out for happy hour at bars when, he admitted, his behavior “was ‘rude’ and ‘obnoxious.’”  The Court found that the judge’s “conduct was beyond rude.”  For example, he told Emily Vincent, his staff attorney, that her tights were sexy and that he would get in trouble for telling her how he would make her over.

The Court also found that the judge’s behavior with M.B., who was 23 years old at the time, and his secretary Elise Wyant, who was 25, “was even worse.”

Following one happy hour, after M.B. had completed her internship, but while she was still a law student, she and Horton engaged in sexual conduct. . . .  On three other occasions, Horton encouraged his friends to touch M.B. inappropriately, and she was groped by his friends on at least two occasions, at Horton’s insistence.  Horton also repeatedly told Wyant that she “looked sexy” and that he wanted to “f**k” her.

M.B. described feeling as though the judge was grooming her.

Wyant admitted that she had joked with the judge and engaged in explicit sexual conversations with him.  When asked why, Wyant explained that was “the culture that he created in the office.”

“He would talk about things that—that he wanted to talk about, and so when, you know, I was talking about my personal life I took the direction from my leader and, you know, I would get personal with my stories, too.”

She described how she “came to realize that this—through conversations with friends and—like, this wasn’t normal, this wasn’t a—a normal working environment.  This culture that he created wasn’t a good one and it wasn’t professional at all.”

When M.B. was asked why she had consented to sexual conduct with the judge even though she did not want to, she explained:  “I felt like I had to do what Judge Horton wanted me to do.  And, you know, I think at the time, 23 at this point, like, I was naive, certainly, but I also think I was just doing the best that I could, you know.”  M.B. further explained:

[T]his is a person who has power over me and I have to go along with what he says.  And I don’t know, like, why I still trusted him, and thought, you know, it would be different, perhaps.  I still saw him as a mentor, which sounds ridiculous after he’s done these horrible things to me; right? . . .  It occurred so incrementally that you almost didn’t see it coming, you know, like you didn’t realize how bad the situation you were in until it was too late to do anything about it, you know.  And I—I think there was also, like, a lot of self-blame involved of, you know, it must be—it must be my fault because, like, he’s—he’s turned me into this sexual object, and so, like, this is just what I know and this is how it works, you know.

Rejecting the judge’s argument that Wyant and M.B. had consented to his sexual conduct and statements, the Court explained:

Even if Horton’s sexual misconduct was not criminal or did not create civil liability, the Code of Judicial Conduct does not merely proscribe crimes or discrimination—it recognizes the power and authority of judges and sets a higher standard.  It also does not police the conduct of judicial employees.  The Code of Judicial Conduct is specifically concerned with the actions of judges.  The issue is not whether Wyant objected to each of Horton’s inappropriate statements or acquiesced to the inappropriate culture Horton created at his office or if M.B. implicitly consented to his sexual conduct.  Horton engaged in sexual harassment in the performance of his judicial duties, abused the prestige of his office for his own personal interests, and acted in a manner that brings disrepute to the judiciary.

As a judge and a supervisor, Horton held a position of power over his staff and interns.  He repeatedly emphasized his power and the importance of loyalty to him.  And it seems to be no coincidence that Horton’s most egregious behavior occurred with and around the younger, less professionally experienced members of his staff who he could more easily manipulate.

Continuing to emphasize a judge’s responsibilities, the Court rejected the judge attempt to blame his staff for working on his campaign for the Court of Appeals during work hours and at public expense, using county resources.  The judge admitted that he had told his staff, “If you want to work on [the campaign], you want to volunteer, that’s great, you know I would appreciate it.”  Although the judge phrased the statement as an invitation and not a directive, his secretary and staff attorney testified that they did not feel comfortable not volunteering for his campaign.  His staff also testified that the judge asked them to conduct campaign business during hours when they would normally be performing county work.

The Court blamed the judge’s “decision not to keep a closer eye on his employees’ time or to create a stronger ethic of professionalism in the office,” noting that “the employees’ culpability is not at issue.”  The Court explained:

If a sitting judge chooses to allow public employees to volunteer to work on his or her campaign, it is incumbent upon the judge to uphold the integrity of the judiciary by imposing clear rules prohibiting campaign work on county time or using county resources and strictly enforcing those rules.  If a judge does not feel confident about his or her ability to make and enforce such rules, then the judge should not accept assistance from public employees.

The judge had also pled guilty in state court to 3 counts of causing inaccurate campaign finance reports to be filed with the secretary of state, admitting that he had reported expenditures that he knew were excessive and unreasonable.

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