More Facebook fails

Independent investigation

The Arizona Commission on Judicial Conduct publicly reprimanded a judge for discussing in a minute order a social medial post criticizing him, in addition to other misconduct.  Staggs, Order (Arizona Commission on Judicial Conduct November 17, 2020).

B.W. was a defendant in a criminal case.  B.W.’s spouse criticized the judge in a post on social media, and the judge’s wife brought it to his attention.  In a minute order in B.W.’s case, the judge discussed the post, described its alleged inaccuracies, and requested that it be corrected.  The Commission found that the judge’s review of the post was an improper independent investigation and that “his choice to respond to social media criticism in an official public record did not inspire confidence in the judiciary.”

Public support

Accepting an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly censured a judge for publicly supporting the teachers at her daughter’s school in litigation with the board of education by making repeated public comments about issues and individuals in person, by email, and on social media platforms in which she was publicly identified as a judge; providing legal information and advice to parents at the school; signing advocacy letters; speaking with members of the board of education; joining teachers’ union counsel outside the courtroom prior to a case conference; and executing an affidavit that was filed in the litigation.  In the Matter of Panepinto, Determination (New York State Commission on Judicial Conduct December 9, 2020).

The judge sits on the Eric County Supreme Court.  In March 9, 2017, confirming an arbitration award, a different judge on the same court directed the Buffalo City School District to immediately stop assigning supervisory, non-instructional duties to teachers at Buffalo City Honors School.  The judge’s daughter attended Buffalo City Honors School during the 2017-2018 school year.

In a contempt motion filed in September 2017, the Buffalo Teachers Federation alleged that the Board of Education was not complying with the order and judgment.  In a separate petition filed in February 2018, the teachers’ federation sought an injunction to prevent the transfer of 5.5 teachers from the school and to prevent 16 teachers’ aides from being hired to perform non-instructional duties.

In January 2018, the judge joined a Facebook group comprised of City Honors School parents who publicly supported the teachers’ opposition to the transfer of teachers.  The judge also communicated with parents in support of the teachers using email and Twitter.  The judge posted on Facebook:  “We can go to Court appearance.  I will find out when it is.”  Using email and social media platforms, the judge provided legal information and advice to parents who were sending letters to the board of education and the teachers’ federation.  On Facebook, the judge posted:  “FYI if letter hast [sic] gone yet – include phrase ‘irreparable harm’ and/or send separate [sic] letters as that is legal standard to stop teachers transfers at least in short term.”  By email, the judge stated:  “Has the letter been sent yet?  It needs to state there will be irreparable harm to justify Court ordering stay of lay offs set for February 27.  If already sent we can do second one and/or individual ones describing irreparable harm.”  On Twitter, the judge posted:  “Write short letters stating the ‘irreparable harm’ cutting teachers at CHS will cause to your children.  Students should write as well.  Post on Twitter & send to BPS & BTF!”

The judge publicly criticized City Honors School principal William Kresse on Facebook, posting:  “Let’s not kid ourselves our beloved IB school hired these aids [sic] To punish teachers who won at arbitration & in Court.  If Dr. Kresse didn’t hire these aids [sic], not a single teacher would be transferred.  100% Kresse decision.  Ask him Why?”  Also on Facebook, the judge characterized the proposed transfer of teachers as “pure retaliation” and stated, “We don’t need aides … napping in hallway.”

On or about February 1, in response to a Buffalo News editorial, the judge posted a Facebook comment that identified her as “Catherine Nugent Panepinto – Works at Elected New York Supreme Court Judge Nov, 2010.”  The judge stated that she did not know that Facebook settings would automatically identify her by her judicial title but conceded that she should have familiarized herself with Facebook protocols prior to posting the comments.

The judge posted on Facebook:  “FYI I met with Paulette Woods today.  She is the Central representative on School Board whose district includes City Honors …  I also had a similar positive conversation with [BBOE representatives] Hope Jay & Sharon Cottman & plan to talk w [BBOE representative] Jennifer M[ecozzi] tomorrow.  I think we’re making great progress & looking forward to meeting tomorrow.”

The Commission concluded that the judge violated the rules when she commented about cases in which she was not a litigant.  The Commission explained:

Rather than being circumspect and focusing narrowly on her direct personal interest in her daughter’s education, respondent generally advocated for and supported the CHS teachers.  She attended meetings and spoke critically of the school’s plan to transfer teachers.  In addition, respondent was publicly critical of the CHS principal and described the transfer of teachers as “pure retaliation” which detracted from the dignity of her judicial office.  Furthermore, respondent admittedly violated the Rule which prohibits a full-time judge from practicing law. . . .  In that regard, respondent improperly and repeatedly advised other CHS parents as to the specific language to include in letters in order to meet the legal standard for injunctive relief.

The stipulation stated that the judge invoked the prestige of her office “when her Facebook comment in response to an editorial regarding CHS identified her as a Supreme Court judge.” 

The Commission concluded that the judge’s conduct over these 3 months “was improper and went beyond appropriate action specifically concerning her personal interest in her daughter’s education.”  In mitigation, the Commission considered that the judge admitted that her conduct warrants public discipline and that her sole motivation was to protect the interests of her daughter.

* * *

A 2-part article analyzing the advisory opinions and discipline decisions on social media and judicial ethics was published in the spring and summer 2017 issues of the Judicial Conduct ReporterPart 1 was a general introduction to the topic and a discussion of issues related to judicial duties:  “friending” attorneys, disqualification and disclosure, ex parte communications and independent investigations, and comments on pending cases.  Part 2 covered off-bench conduct:  conduct that undermines public confidence in the judiciary, commenting on issues, abusing the prestige of office, providing legal advice, disclosing non-public information, charitable activities, political activities, and campaign conduct.  Summaries of advisory opinions and cases up-dating the 2-part article are available on the Center for Judicial Ethics website.

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