In re Andrew M. Hladio Magisterial Dist. Judge Magisterial Dist. 36-1-01 36TH Judicial Dist. Beaver Cnty.

• Decision Date: 01 February 2019
• Docket Number: 6 JD 2016
• Parties: IN RE: Andrew M. Hladio Magisterial District Judge Magisterial District 36-1-01 36th Judicial District Beaver County
• Court: Pennsylvania Court of Judicial Discipline

IN RE: Andrew M. Hladio Magisterial District Judge Magisterial District 36-1-01 36th Judicial District Beaver County

6 JD 2016

COMMONWEALTH OF PENNSYLVANIA COURT OF JUDICIAL DISCIPLINE

February 1, 2019

JUDICIAL CONDUCT BOARD'S BRIEF IN SUPPORT OF PROPOSED CONCLUSIONS OF LAW

I. Procedural History:

This is a consolidated matter arising from two Board Complaints filed against the Honorable Andrew M. Hladio, former Magisterial District Judge for Magisterial District Court 36-1-01 of Beaver County, Pennsylvania. The Board filed its First Board Complaint on December 7, 2016 at 6 JD 2016 and its Second Board Complaint on October 10, 2017 at 3 JD 2017. On October 27, 2017, this Court consolidated the two Complaints at 6 JD 2017. On October 25, 2018, the Board and Judge Hladio, by his counsel, Heidi F. Eakin, filed Joint Stipulations of Fact in Lieu of Trial and Waiver of Trial, Pursuant to C.J.D.R.P. No. 502(D)(1). That pleading contains Stipulated Facts pertaining to the First Board Complaint (6 JD 2016) at Paragraph Nos. 1-188, Stipulated Facts pertaining to the Second Board Complaint (3 JD 2017) at Paragraph Nos. 189-288, and 63 Exhibits. The parties stipulated to the authenticity and admissibility of the Exhibits. On that same day, Judge Hladio filed Respondent's Addendum to Joint Stipulations of Fact.

This brief is limited to a discussion of the charges of harassment, retaliation, bias and prejudice, and demeanor. The Joint Stipulations of Fact pleading differs from the First Board Complaint in that it does not include the facts pertaining to 'Trucking Violation Cases," set forth in the First Board Complaint, 6 JD 2016, at Paragraph Nos. 184-208. Therefore, the corresponding charges in the First Board Complaint are withdrawn, as set forth in detail in the Conclusion section of this Brief, and in the February 1, 2019 Motion to Withdraw Counts from First Board Complaint. All other charges remain before this Court for decision.

II. Discussion:

As a preliminary matter, the Board charged Judge Hladio with failure to comply with the Unified Judicial System of Pennsylvania Policy on Non-Discrimination and Equal Employment Opportunity (UJS Policy), violations of the Rules Governing Standards of Conduct of Magisterial District Judges, which prohibit bias, prejudice, sexual harassment and retaliation, and the Pennsylvania Constitution. Within those charges, the Board set forth relevant sections of the UJS Policy. Whether or not the charged judicial conduct meets the burden of proof for sexual harassment or retaliation under federal and state laws is not the issue before this Court.

This issue was addressed by the North Dakota Supreme Court upon review of the North Dakota Judicial Conduct Commission's application for discipline. In re Disciplinary Action Against Corwin, 843 N.W.2d 830 (N.D. 2014) (judge violated Canons by his conduct of sexually harassing and retaliating against court reporter, who repeatedly and explicitly rebuffed his advances). In his defense before the Commission hearing panel, Judge Corwin sought to introduce expert testimony to prove that his conduct did not violate federal and state sexual harassment laws. The Commission hearing panel declined to hear such testimony and stated:

This matter comes before the Judicial Conduct Commission not as a matter in dealing with employment law or law concerning sexual harassment, but rather the matter dealing with the code involving judicial ethics. The Canons do not provide a definition for sexualharassment. In a matter such as this, sexual harassment is clearly recognized. The hearing panel obviously cannot know absolutely what was going on in Judge Corwin's mind so as to derive his true intent. All the hearing panel can do is serve as a third party looking in to the facts that are being presented to make determinations. Based upon the hearing panel's review of this evidence submitted, it is clear that sexual harassment occurred.

Id. at 835. The North Dakota Supreme Court rejected the defense's argument that the Commission hearing panel erred when it would not permit expert testimony on the federal and state sexual harassment laws. In affirming the ruling of the Commission hearing panel, the Supreme Court stated:

We reject this argument for several reasons. First, N.D. Code Jud. Conduct Canon 3(C)(2) does not require the establishment of sexual harassment under federal or state law to constitute a violation of its provisions, and this court has recognized that judicial disciplinary proceedings "are neither civil nor criminal." Second, N.D. Jud. Conduct Canon 3(C)(2) requires a finding of "conduct that could reasonably be perceived as sexual harassment." Third, because the only issues before the hearing panel are whether Judge Corwin violated provisions of the Code of Judicial Conduct, whether his conduct constituted sexual harassment as defined under federal or state law was not a relevant inquiry.

Id. at 836 (emphasis in original) (citations omitted). Instead, the N.D. Supreme Court looked to the definition of "sexual harassment" within its Unified Judicial System Policy, finding that the Policy sufficiently defined the type of conduct that could be perceived as sexual harassment, and concluded that the Commission hearing panel did not err in its refusal to permit the requested expert testimony. Id. at 836-37. The North Dakota Supreme Court determined that there was clear and convincing evidence of judicial misconduct, pursuant to the prohibitions set forth in its UJS Policy, and imposed a sanction of suspension for one month without pay and a fine of $11,958.56 for costs and expenses of disciplinary proceedings. Id. at 840.

In an earlier case, the New Jersey Supreme Court reached a similar conclusion in In the Matter of Seaman, 627 A.2d 106 (N.J. 1993) (judge engaged in a pattern of sexual harassment, both physical and verbal in nature, toward a law clerk, which violated the Code). The New Jersey Advisory Committee on Judicial Conduct determined that there was clear and convincing evidence that Judge Seaman engaged in the alleged conduct of sexual harassment and recommended in its presentment that the Supreme Court impose a sanction of public censure. Id. at 109. Upon review, the N.J. Supreme Court determined that its consideration of the charged misconduct was limited to whether it violated the Code:

Because the focus of judicial-disciplinary matters is necessarily on the canons of judicial conduct, we inquire into whether the facts as determined demonstrate conduct on the part of the respondent that is incompatible with those canons.

We must state, prefatorily, that the inquiry before the Court is not whether respondent's behavior constituted sexual harassment as such. Although undoubtedly all forms of behavior that cross the legal threshold of sexual harassment would constitute judicial misconduct, many forms of offensive interpersonal behavior that would violate the Code of Judicial Conduct would not meet the legal definition of sexual harassment. Nevertheless, we cannot overstress that although we must address the ultimate issue of whether judicial conduct violates the canons, the charges of misconduct against respondent equate with sexual harassment.

Id. at 110 (emphasis in original). The N.J. Supreme Court imposed a sanction of suspension without pay for 60 days and required Judge Seaman to complete an educational program.

This court recently decided a case of sexual harassment and limited the scope of analysis to violations of the UJS policy and the Canons and Rules of the Pennsylvania Code of Judicial Conduct. In re Muth, 2 JD 2017, slip op. at 6-8 (Pa.Ct.Jud.Disc. Oct. 31, 2018) (display of images of naked and partially nakedwomen on his personal computer at his judicial office violated UJS Policy and Old Canons 2A and 4C).

In contrast, this Court recently looked to federal employment law when considering charges of retaliation. In re Tidd, 175 A.3d 1151, 1158-59 (Pa.Ct.Jud.Disc. 2017) (relying solely on decisions in federal employment discrimination cases, found violation of Rule 2.16 where "[judge's] angry confrontation of his judicial staff was inappropriate conduct for any judge in Pennsylvania, and would deter a reasonable employee from cooperating with the Board").

The charge of retaliation in Tidd was an issue of first impression in Pennsylvania judicial discipline cases. Although this Court held that Judge Tidd's angry confrontational conduct toward his court clerks violated Rule 2.16, because of its deterrent effect, it declined to find violations of Rule 2.16 pertaining to Tidd's requests that the President Judge transfer two of his court clerks, one of whom had filed a complaint against him with the Board. This Court reasoned:

Significantly, Judge Barratta testified that whether or not to transfer clerks was a decision of the President Judge of Northampton County, and one for which he required a substantial and legitimate reason. Because Judge Tidd's requests were just that -requests- and not actual employment decisions, we conclude that his mixed-motive requests to transfer [the two clerks] which did not result in any adverse employment decisions do not constitute retaliation under Rule 2.16.

Id. at 1160. This Court analyzed the charge of retaliation in Tidd by applying a standard used for all employers accused of retaliation in civil cases.

However, matters before this court do not involve civil charges, but instead are limited to violations of ethical standards as set forth in the Rules and the Pennsylvania Constitution. Although proceedings in this Court are sometimesreferred to as "quasi-criminal," that designation refers to the procedural notice afforded to respondent judges. See In re Carney, 79 A.3d 490, 508 (Pa. 2013). As set forth succinctly in Corwin, "judicial disciplinary proceedings are neither civil nor criminal." Corwin, 843 N.W. at 836. Therefore, the analysis of the charged conduct of sexual harassment and retaliation in this...