Disciplinary Counsel v. Horton

• Decision Date: 10 October 2019
• Docket Number: No. 2018-1746,2018-1746
• Parties: DISCIPLINARY COUNSEL v. HORTON.
• Court: Ohio Supreme Court

158 Ohio St.3d 76

140 N.E.3d 561

2019 Ohio 4139

DISCIPLINARY COUNSEL

v.HORTON.

No. 2018-1746

Supreme Court of Ohio.

Submitted May 7, 2019

Decided October 10, 2019

Scott J. Drexel, Disciplinary Counsel, and Audrey E. Varwig, Assistant Disciplinary Counsel, for relator.

Brunner Quinn, Rick L. Brunner, and Patrick M. Quinn, Columbus, for respondent.

O'Connor, C.J. {¶ 1} Relator, disciplinary counsel, filed a three-count complaint against respondent, Timothy Solomon Horton, of Lewis Center, Ohio, Attorney Registration No. 0065934. Horton was admitted to the practice of law in Ohio in 1996. Horton served as a judge on the Franklin County Court of Common Pleas from 2006 until he was elected to the Tenth District Court of Appeals, which he joined in 2015. He submitted his judicial resignation to that court effective February 28, 2019.

{¶ 2} In a complaint certified to the Board of Professional Conduct on January 30, 2018, disciplinary counsel alleged that Horton violated multiple provisions of the Code of Judicial Conduct and two provisions of the Rules of Professional Conduct.

{¶ 3} Count One arose from Horton's guilty plea to misdemeanor charges of failing to file accurate campaign statements. Count Two alleged that as a common-pleas-court judge, Horton had misused county resources and staff for work on his 2014 campaign for Tenth District Court of Appeals judge. Count Three alleged sexual misconduct by Horton in 2013 and 2014, including that he had sexually harassed a legal intern in his office (both during and after her internship) and his secretary.

{¶ 4} A panel of the board held a five-day hearing during which 16 witnesses testified. The panel found that respondent had violated the Code of Judicial Conduct and the Rules of Professional Conduct and recommended that he be suspended from the practice of law for two years, with one year of the suspension stayed if he met certain conditions. The conditions included an evaluation by the Ohio Lawyers Assistance Program ("OLAP"), continued attendance at Alcoholics Anonymous, and no further contact with any of the female employees or interns who had testified in the proceedings.

{¶ 5} The board adopted the panel's findings of fact and conclusions of law, but it disagreed with the recommended sanction. The board recommended that respondent be indefinitely suspended from the practice of law in Ohio, with reinstatement conditioned on his (1) continued participation in Alcoholics Anonymous, (2) submission to a new OLAP evaluation and compliance with any treatment and counseling recommendations arising from the evaluation, (3) not contacting the former female employees and interns who had testified in the disciplinary proceedings, and (4) payment of costs of the proceedings.

{¶ 6} Horton raises three objections to the board's findings and recommendation. He argues that the panel erred by prohibiting the introduction of evidence as to whether his conduct was unwelcome, that Count Two was unwarranted and should be dismissed, and that the board's recommended sanction was not warranted based on the facts and this court's precedent.

{¶ 7} We have reviewed the parties' arguments and the record. For the reasons set forth below, we adopt the board's findings of fact and conclusions of law and adopt the board's recommended sanction.

Misconduct

Count One—Criminal Conviction

{¶ 8} Count One charged Horton with violations of Jud.Cond.R. 1.2 and Prof.Cond.R. 8.4(b) and (c). Jud.Cond.R. 1.2 requires a judge 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. Prof.Cond.R. 8.4(b) states that it is professional misconduct to commit an illegal act that reflects adversely on the lawyer's honesty or trustworthiness; Prof.Cond.R. 8.4(c) states that it is professional misconduct to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.

{¶ 9} This count arises from Horton's criminal convictions. Horton pleaded guilty to three misdemeanor counts of violating R.C. 3517.13(B) by failing to file a complete and accurate campaign statement. Near the end of 2013, Horton decided to run for a seat on the Tenth District Court of Appeals. In March 2014, he learned that he would be unopposed for the seat. In celebration, he held a private dinner, which cost $1,014.09, at a restaurant in downtown Columbus. He paid for the event with campaign funds and reported the expenditure on his campaign-finance report. The first count of the criminal complaint, to which Horton admitted guilt, charged that Horton caused an inaccurate campaign-finance report to be filed with the secretary of state by reporting an expenditure of an unreasonable and excessive amount.

{¶ 10} The second count of the criminal complaint concerned a campaign fundraiser held in early March 2014, before it was clear that Horton would be unchallenged. The fundraiser, held at a restaurant in downtown Columbus, had only one attendee other than Horton's court and campaign staff but cost $978.75. Horton pleaded guilty to this count for causing an inaccurate campaign-finance report to be filed with the secretary of state, thereby admitting that he had reported the expenditure knowing that it was an excessive and unreasonable amount.

{¶ 11} The third count of the criminal complaint concerned a $173.29 expense that Horton reported for cigars that were to be made available to supporters during campaign functions. Horton made the purchase in July 2014, well after he learned he would run unopposed. Again, Horton admitted guilt for willfully reporting an expenditure of an unreasonable and excessive amount, causing an inaccurate finance report to be filed with the secretary of state.

{¶ 12} The trial court sentenced Horton to serve ten days in the Franklin County Corrections Center, undergo a drug-and-alcohol assessment and complete follow-up treatment, pay restitution to the Mid-Ohio Foodbank in the amount of $2,065, complete 100 hours of community service, verify that he attended at least one Alcoholics Anonymous meeting per week, and stay involved in the OLAP program. He appealed, and the Tenth District Court of Appeals affirmed. State v. Horton , 2017-Ohio-8549, 99 N.E.3d 1090 (10th Dist.).

{¶ 13} Horton admitted that his conduct violated Jud.Cond.R. 1.2 but denied that it violated Prof.Cond.R. 8.4(b) or (c). The panel dismissed the Prof.Cond.R. 8.4(c) charge but found by clear and convincing evidence that Horton violated Jud.Cond.R. 1.2 and Prof.Cond.R. 8.4(b) by committing an illegal act that reflected adversely on his trustworthiness and honesty and by undermining public confidence in the integrity of the judiciary. The board adopted the panel's findings of fact and conclusions of law on Count One.

Count Two—Misuse of County Resources and Staff

{¶ 14} The second count of the disciplinary complaint charged Horton with violations of Jud.Cond.R. 1.2 and 4.4(B) for (1) allowing his judicial staff to work on his judicial campaign during work hours and at public expense, (2) using county resources for his judicial campaign, and (3) directing his judicial staff to be involved in the receipt, handling, and delivery of campaign contributions and funds. Jud.Cond.R. 4.4(B) states that a judicial candidate shall prohibit public employees subject to his or her direction or control from soliciting or receiving campaign contributions.

{¶ 15} Horton admitted that he had told his court staff, "If you want to work on [the campaign], you want to volunteer, that's great, you know I would appreciate it." Despite Horton's phrasing the statement as an invitation and not a directive, his secretary, Elise Wyant, and staff attorney, Emily Vincent, testified they did not feel comfortable not volunteering for his campaign.

{¶ 16} Horton testified that he understood that campaign work should not be conducted on county time or using county equipment. He also testified that he had encouraged his staff to attend a seminar that explained some of the campaign rules and restrictions applicable to judicial candidates, their staff, and volunteers. But beyond encouraging his staff to attend that seminar, Horton made only limited efforts to ensure that his staff did not work on his campaign using county time or resources. Horton's judicial staff testified that he made requests for them to conduct campaign business during hours when they would normally be performing county work. In response, Horton blamed his staff for not policing themselves more strictly in their capacity as campaign volunteers. For example, although Horton's staff was relatively inexperienced in politics, Horton believed it was entirely the staff's obligation to document leave from their county jobs to work on the campaign.

{¶ 17} Wyant testified that Horton would send her campaign work at any time of the day, regardless of whether she was at work. Vincent testified that Horton asked her to do work supporting his campaign during her normal workday on at least two occasions. And Horton's campaign consultant, Bridgette Tupes, testified that she had conversations with him about the optics of allowing his staff to be seen doing campaign work because she was concerned about public perception.

{¶ 18} Specifically, Horton asked Vincent, during work hours, to pull cases in which Columbus was a party, prior to his meeting with the city's mayor. Horton denied that the information had been compiled to gain a political endorsement but explained that he had asked for it "[t]o do due diligence and—and make sure [he was] properly prepared when [he met] with electeds, particularly during campaign season." Thus, the work was undeniably for the campaign. He also asked her to compile a list of attorneys who had practiced before him in cases involving Ohio's casinos and racinos; he told Vincent that the list was for fundraising purposes. There is also overwhelming evidence that Horton asked Wyant, during...