Acknowledging the challenge of overcoming employees’ fears of retaliation if they report a judge’s workplace misconduct, the Judicial Council for the U.S. Court of Appeals for the 10^th Circuit stated that “the most effective way” to assuage those fears “is to demonstrate that the Judiciary’s reporting systems are effective at addressing misconduct.”  Therefore, although it concluded an investigation of a former magistrate judge for the District of New Mexico because her term had ended, it released an order that described the allegations and summarized “institutional concerns” the matter illustrated.  In re:  Complaint Under the Judicial Conduct and Disability Act, Order (10^th Circuit Judicial Council September 14, 2022).

2 former law clerks and 2 anonymous individuals who had also worked for the judge filed a complaint alleging that the judge’s behavior created an abusive and hostile work environment.  In response, the judge denied that she created a hostile work environment but said that she was willing to take appropriate corrective action.

The Chief Judge of the 10^th Circuit appointed a special committee to investigate.  The committee’s investigators interviewed everyone who had worked full-time for the judge in her 16 years on the bench, which included law clerks, judicial assistants, and courtroom deputies.  They also interviewed 4 of her judicial colleagues and 3 other individuals.

The committee concluded, based on “the source, nature, and consistency of the evidence,” that there was “reason to believe” that the judge had engaged in sanctionable misconduct, including “unpredictable and hypercritical outbursts; manipulation of staff to undermine judges and employees; frequent threats of termination or actual terminations; and derogatory and egregious statements about her own staff, other court employees, and judges.”

The investigators reported the committee’s preliminary views to the judge, who informed the district court judges.  She was up for re-appointment, and the judges voted not to reappoint her.  Because of the procedural requirements in the rules, the Council could not issue a final order on the merits before the expiration of the judge’s term and, therefore, concluded the complaint due to intervening events.

However, even when a complaint has been concluded, Judicial Councils have the authority to assess what conditions may “have enabled misconduct or prevented its discovery” and determine “what precautionary or curative steps could be undertaken to prevent its recurrence,” under a comment to Rule 20 of the federal Rules for Judicial Conduct and Judicial Disability Proceedings.

Based on the committee’s recommendation, the Council identified 2 problems:  “1) a lack of awareness about what constitutes abusive conduct and/or a hostile work environment, and 2) widespread fear of retaliation that deterred reporting.”

First, it noted that employees explained that they had never reported the judge “because they did not know if her behavior would constitute abusive conduct or a hostile work environment.”  In addition, other judges who were interviewed “were unaware of the breadth and nature” of her conduct and “questioned whether what little information they had rose to the level of misconduct or implicated their reporting obligations.”

Second and “perhaps more problematic,” the Council stated that even the employees who thought her behavior could constitute misconduct “did not report the conduct because they feared retaliation.”  The employees stated that they have relied on and continue to rely on the judge’s recommendation to secure other positions and advance their careers.  The Council noted that even some employees who had not worked for the judge for years and had moved out of state were still reluctant to participate in the investigation.

The Council described the training the circuit has provided to judges and employees on workplace conduct issues, but “to address the continuing lack of awareness of what specifically constitutes abusive conduct and a hostile work environment,” it announced additional training on “the practical application of these terms,” believing “this will make judges more mindful of their conduct and their colleagues’ conduct and give employees confidence in what behavior should be reported.”  The training for judges will include “appropriate and inappropriate workplace conduct, standards and definitions of abusive conduct and hostile work environment, judges’ reporting obligations . . . , the prohibition against retaliation, and the need to be aware of possible retaliatory efforts by a colleague.”  The training for employees will include those topics plus the many ways an employee can report wrongful conduct and retaliation.

The Council concluded:

Although the District of New Mexico voted not to reappoint Judge Garza before the Judicial Council could take remedial action on the complaint, the district judges’ vote was a direct result of the complainants’ courage in reporting the alleged misconduct, the . . . guidance [from the Director of Workplace Relations], and the Special Committee’s investigation.  The Judiciary, including this Circuit, has made progress in the area of workplace conduct, but it is clear that there is more work to do.  The Judicial Council will work with the Tenth Circuit’s Workplace Conduct Committee to determine what other measures should be taken to make this circuit an exemplary place to work.