Inquiry Concerning a Judge re Graziano, In re, 96-141

• Citation: 696 So.2d 744
• Decision Date: 30 May 1997
• Docket Number: No. 88837,No. 96-141,96-141,88837
• Parties: 22 Fla. L. Weekly S304 In re INQUIRY CONCERNING a JUDGE,, re Gayle S. GRAZIANO.
• Court: United States State Supreme Court of Florida

Page 744

696 So.2d 744

22 Fla. L. Weekly S304

In re INQUIRY CONCERNING a JUDGE, No. 96-141, re Gayle S. GRAZIANO.

No. 88837.

Supreme Court of Florida.

May 30, 1997.

Rehearing Denied July 9, 1997.

Frank N. Kaney, Chairman and Thomas C. MacDonald, Jr., General Counsel, Tallahassee; John D. Jopling of Dell, Graham, Willcox, Barber, Jopling, Schwait, Gershow & Specie, P.A., Gainesville, Special Counsel for Florida Judicial Qualifications Commission; and Laura Rush, Senior Attorney, Office of the State Courts Administrator, Tallahassee, on behalf of Mark Weinberg, Court Administrator for the Seventh Judicial Circuit, for Petitioner.

Ellis Rubin and Robert I. Barrar of the Law Offices of Ellis Rubin and Robert I. Barrar, Miami, for Respondent.

PER CURIAM.

We review the recommendation of the Judicial Qualifications Commission (JQC) that respondent, Judge Gayle S. Graziano, be removed from her position as circuit court judge for the Seventh Judicial Circuit. Pursuant to article V, section 12(f) of the Florida Constitution, ¹ we have jurisdiction. We have considered the record, respondent's written response, and oral argument. For the reasons expressed below, we affirm the JQC's recommendation.

Respondent was elected as a circuit court judge in 1986 and was elected Chief Judge of the Seventh Judicial Circuit in 1993. She was reelected to the position of Chief Judge in February 1995. On August 28, 1996, the JQC charged respondent with eight counts of violating the Florida Code of Judicial Conduct. ² After a formal hearing was conducted the JQC found that respondent was not guilty of counts four, five, six, and portions of count eight. The remaining counts alleged that respondent: (1) influenced the decision to hire Ethel Rosa, a close personal friend and business associate of respondent, who was substantially less qualified than other applicants, for the job of Guardian Ad Litem Case Coordinator for Flagler County; (2) issued a written directive increasing Rosa's hourly wage by approximately thirty-four percent despite reports of unsatisfactory job performance; (3) directed the transfer of Rosa from her part-time position to a full-time position, a directive which she later rescinded; (4) without speaking or explaining her actions to Judge Foxman, entered Judge Foxman's courtroom in the middle of an evidentiary hearing, approached the court reporter, Jane O'Brian, and demanded that O'Brian move her car from respondent's judicial assistant's parking spot; and (5) used insulting or threatening language in several instances to court employees, including loudly berating Debbie Minton, the Court Operations Manager for Volusia County; threatening Tony Landry, an employee of the Clerk of Court, with "jail time"; and accusing Sharon Welch, Program Analyst for Volusia County, of taking the modem card from respondent's office computer after Welch installed a network system into respondent's computer.

The JQC filed its Findings of Fact, Conclusions of Law, and Recommendation on December 27, 1996. The JQC made the following findings of fact:

2. Gayle S. Graziano has been friends with Ethel Rosa since 1985 and, at times material to these charges, considered Ms. Rosa to be her "best friend." In April of 1995, Ms. Rosa was either residing with Judge Graziano in New Smyrna Beach, or had recently moved from the New Smyrna residence to the condominium in Flagler Beach. (TR 59, 60, 61) Throughout all of 1995, Judge Graziano and Ethel Rosa owned property together, held by a corporation known as GAET, Inc. The letters GAET are the first two initials of Judge Graziano and Ethel Rosa's names. (TR 62, 63) GAET, Inc. has owned condominiums in Daytona Beach and Flagler Beach. Later, the Flagler Beach condominium was transferred out of the corporation to Gayle S. Graziano and Ethel Rosa jointly, with joint right of survivorship.

3. In the spring of 1995, the Guardian Ad Litem Case Coordinator for Flagler County, Diane McNally, submitted her resignation and a job search was conducted for her replacement. (TR 67, 68, 498)

4. On April 25th or 26th, 1995, Judge Graziano handed Evelyn Bible, Senior Deputy Clerk for Volusia County, the resume of Ethel Rosa and requested Ms. Bible consider said resume for the position of Guardian Ad Litem Case Coordinator for Flagler County. (TR 319).

5. Prior to Judge Graziano's interceding on Ms. Rosa's behalf, a candidate for the position had been agreed upon by Linda Bennett, Circuit Director for the Guardian Ad Litem program for the Seventh Judicial Circuit, Diane McNally, and Evelyn Bible. (TR 317, 476, 501) Ms. Bible had completed an extensive scoring analysis of the applicants and the candidate selected, Michelle Orphen, received the highest score. Pursuant to Judge Graziano's instruction to consider Ms. Rosa for the position, her application was subsequently scored. Ms. Rosa did not receive a score higher than Ms. Orphen and additional points were added to her final score based upon Judge Graziano's opinion that Ms. Rosa's "connections" within the community were an asset. At the conclusion of the scoring, the original selected candidate, Ms. Orphen, still scored the highest. (TR 324, 325) (Commission Exh. 11)

6. In May, 1995, Ms. Bible expressed her concerns to Judge Graziano regarding her relationship with Ethel Rosa and Ms. Rosa being hired for the case coordinator position. Judge Graziano assured Ms. Bible that she would have a "hands-off" policy. (TR 326) Judge Graziano then went on to ask Ms. Bible, "May I tell Ethel tonight that she's been selected?" (TR 328) Ms. Bible reluctantly replied in the affirmative. Ms. Bible thereafter directed Ms. Bennett to hire Ms. Rosa for the position. Ms. Bible directed the hiring of Ms. Rosa based upon Ms. Bible's feelings that she was compelled to do so, and that she "had no choice" given Judge Graziano's request. (TR 328, 329)

7. On November 9, 1995, Judge Graziano wrote a letter to Christopher Chinault, County Administrator for Flagler County, directing Mr. Chinault to increase the Flagler County Case Coordinator position by $3.25 per hour, (Commission Exh. 4), amounting to a raise of approximately 34%.

8. On December 11, 1995, Judge Graziano again wrote to Mr. Chinault, after Mr. Chinault's expressed objections to increasing Ms. Rosa's salary. This letter directed Mr. Chinault to transfer the funds from the judiciary discretionary budget in order to accomplish the judge's directive. (Commission Exh. 5).

9. There were questions concerning Ms. Rosa's qualifications for the position of Guardian Ad Litem Coordinator. Nevertheless, because of Judge Graziano's intervention, Ms. Rosa was hired for the job. Once she assumed the position, there were problems with her performance. Katie Watkins, who became circuit-wide Guardian Ad Litem Director in January, 1996, testified to extensive problems in the Flagler County office which resulted from Ms. Rosa's failure to follow the correct chain of command as far as supervision went; inappropriate demeanor to state attorney personnel, court reporters, and people associated with the court; inappropriate and ineffective supervision of guardians and the inappropriate presentation of case work in court. (TR 330, 332, 512) At least one witness called by Judge Graziano acknowledged that problems were encountered in the Flagler County program under Ms. Rosa's direction which had not been present under the direction of Ms. [R]osa's predecessor, Diane McNally. (TR 1020) Ms. Rosa's annual evaluation completed in 1996 revealed a 35 out of a possible 100 available points. (TR 330, 331, 512), (Commission Exh. 12)

10. On April 30, 1996, Judge Graziano prepared a memorandum to Mark Weinberg directing him to transfer Ms. Rosa to the Family Law Coordinator position in Volusia County at a salary of $28,000.00. (Commission Exh. 7). The directive to transfer Ms. Rosa was made in spite of poor performance evaluations of Ms. Rosa in her present position, her lack of qualifications for the new position and concerns expressed directly to Judge Graziano by Katie Watkins, Guardian Ad Litem Circuit Director for the Seventh Judicial Circuit, that the transfer of Ms. Rosa was not in the best interest of the program, Ms. Rosa or the judge. (TR 519, 520, 521, 522, 523, 524, 525)

11. On February 11, 1994, Judge Graziano entered Circuit Judge James Foxman's courtroom through the judge's private entrance while court was in session. At the time, Judge Foxman was presiding over a hearing on Motion to Suppress in the State v. Ashley matter. Assistant State Attorney Michael Politis was in the midst of his closing argument when Judge Graziano approached the court reporter, Jane O'Brian, and demanded to know if it was Ms. O'Brian's red car parked in the judicial assistant's parking space. When Ms. O'Brian confirmed it was her vehicle, Judge Graziano instructed her to move her vehicle immediately. Judge Foxman had to take a recess in order to allow the court reporter to move her vehicle. (TR 714) Judge Graziano did not seek or obtain Judge Foxman's consent to this interruption in the proceedings over which he presided. (TR 672) Ms. O'Brian left the courtroom in tears. (TR 740)

12. On December 11, 1995, Judge Graziano summoned to her chambers Court Operations Manager for Volusia County, Debbie Minton, and spoke in a loud and disparaging manner concerning the Clerk's office. Judge Graziano was angry about a facsimile document that had not been faxed correctly. In spite of the fact that no specific directions were given by the judge or her judicial assistant to the clerk who attempted to fax the document, Judge Graziano, in a raised voice, berated the Clerk's office and stated the clerks were "incompetent, morons and idiots." (TR 822, 823, 824), (Commission Exh. 15)

13. On February 5, 1996, Sharon Welch, Program Analyst for Volusia County, installed a network system into Judge Graziano's office computer. Judge Graziano was present during the first...