A Question of Ethics
Friendship and self-esteem are powerful motivator’s in a person’s life. The court environment can provide us with ways to enhance our network of friends, as well as the ability to impress others. It can allow us to assist or hurt others through imparting information.
Court Administrator Jane receives a telephone call from Lorraine who runs the local women’s shelter. Lorraine relates that Betty (one of the current shelter residents) needs to speak with Jane at a location away from the courthouse. Lorraine, Jane, and Betty agree to meet at a small coffee shop on the other side of town from the courthouse.
At their meeting Betty reveals that she is a long-time abuse victim. Two weeks ago, Betty marshaled the courage to file her first restraining order against her husband, Erik. Dirk, a clerk of 17 years with the court and Erik’s good friend, discovers the newly filed petition on the court’s computer system. That evening Dirk goes to the local fraternal lodge hall for a few drinks and to visit with friends. He announces to his bar buddies that Erik had better watch out because the sheriff is going to pay him a visit soon.
About an hour later, Erik arrives and Dirk shares this same information with him. Erik, knowing that Dirk is telling the truth, leaves in a hurry.
One of the people at the lodge hall calls Betty. Fearing for her life, Betty leaves for the women’s shelter with only her children and the clothes on her back. She has not been back to her home since. Betty has not been silent about Dirk, his job at the court, and how he tipped Erik off to the impending restraining order service. Lorraine tells Jane that other women, calling in for help on the domestic violence hotline, are now refusing to file restraining order petitions because they fear Dirk may tip their husbands off prior to the order being served.
Jane is in a quandary on two levels. Dirk has done palpable damage to Betty and possibly other women by sharing this information with those outside the courthouse who have no real need to know. On the other hand, restraining order files are public. Theoretically, anyone at that lodge could have come to the courthouse or called and discovered what Dirk knew. Neither is there any court policy against clerks disclosing public court information to others.
On another level, Betty is certainly frightened. But Jane wonders if Betty may also be wildly exaggerating out of spite toward Erik. To be fair in counseling Dirk, Jane must divulge Dirk’s
accuser. Doing so might place Betty in great danger.
Jane chooses not to counsel Dirk and, and so does not betray Betty. Instead, Jane reassigns Dirk to a court function that does not routinely allow him access to the court’s computer or interact
with parties filing restraining orders. Jane also issues a policy directive to staff ordering them always to respect the privacy of those members of the public who use the courts.
Dirk protested loudly, and eventually resigns ending his years of employment with the court, three years short of retirement.
The Honorable Randal Fritzler, Judge of the Clark County District Court in Vancouver, Washington; Zelda M. DeBoyes, Court Administrator for the Aurora Municipal Court in Aurora Colorado; Richard Moellmer, Trial Court Administrator for the Benton County Circuit Court in thCorvallis, Oregon; and David A. Cable, Court Administrator for the 10 Circuit Court in Saginaw,
Michigan have agreed to share their perceptions regarding the scenario.
Did Dirk act unethically; did he violate the NACM code of ethics?
All four of the respondents agreed Dirk acted unethically. Judge Fritzler even thought Dirk’s actions (disclosing information on the restraining order and potentially enabling Erik to avoid service) bordered on the criminal.
Judge Fritzler’s and Zelda DeBoyes’ combined analysis concluded that Dirk’s actions conceivably violated a host of NACM Code of Conduct sections:
Art. I sec. A: securing unwarranted privilege
Art. I sec. C appearing to be unduly affected by another
Art. I sec. E not using court resources (information) judiciously and solely in accordance
with prescribed legal procedures.
Art. II sec. A openly discussing confidential case information not requested through proper
channels and failing to protect the interest of domestic violence victims who
may file restraining order petitions.
Art. II sec. H actions reflecting adversely on the court
Richard Moellmer commented that while the information Dirk shared was public, Dirk's official position as a court clerk afforded him access to information not otherwise known to Erik or his bar buddies. Further, the timing of Dirk's disclosure (prior to the sheriff serving Erik) was irresponsible and inexcusable. By warning Erik of the restraining order before service, Dirk frustrated the interest of justice, as well as endangered Betty and her children. While not described in the scenario, one could easily imagine a situation where Erik leaves the lodge hall
after learning about the restraining order and proceeding to abuse Betty prior to service thereby avoiding the consequences of violating the order.
Dave Cable thought that Dirk's chat with his lodge buddies, outside of business, could be seen as a way for Dirk to demonstrate his inside knowledge therefore increasing his buddies’ esteem for him. Dirk was, in a way, trading on inside information for a form of "profit". . . after 17 years with the court, Dirk should definitely have seen this.
Did Dirk have a conflict of interest in this case? Did he show bias or favoritism by revealing the information he possessed?
Zelda, Richard, and Judge Fritzler all thought Dirk had a conflict of interest. Zelda thought Dirk had a conflict because of his personal friendship with a party in an impending court case. Dirk showed bias and favoritism through his disclosure to the lodge members and Erik, with little or no regard to Betty's personal safety or her rights as a possible domestic violence victim.
Judge Fritzler did not perceive the real issue here as Dirk disclosing public information, rather that the information was not disclosed in a fair, open, and even-handed way. The fact that the information was disclosed over drinks in a bar added to the appearance of impropriety. Public information should only be disseminated under regular, established, and acceptable procedures. The actions of the court staff in this scenario have placed the judges responsible for court employees in an awkward situation. The judges are responsible to prevent unequal treatment by court staff. Those judges also have a responsibility to ensure that court staff act consistently with the judicial code of conduct (which prohibits ex-parte contact and other actions that create an appearance of unfairness).
While it may have been a stretch to say he discriminated on the basis of gender, Richard pointed out that Dirk certainly did provide information that was beneficial to Erik (a man) and detrimental to Betty (a woman).
Should court restraining order information be confidential?
Dave Cable remarked that restraining orders probably should be confidential until served. But the question does not really bear on this issue. Staff should be answering direct questions truthfully,
on the job, but certainly should not be volunteering their knowledge of cases, in social situations outside work hours. Zelda agreed with Dave that restraining orders should be confidential due to the potential lethality of the crime of domestic violence, and the uncertainty of the actions by the parties involved.
Judge Fritzler and Richard Moellmer believed restraining orders need to remain public. The judge thought information about the existence of restraining order should be public to enhance effective enforcement. However, the personal information, which serves as a basis for the order, should be held private unless a judicial determination, showing need and public interest, orders it released.
Richard, agreeing with the judge, viewed the scenario as an exceptional circumstance in which public information was disclosed by a court clerk during an ongoing judicial process: after the
restraining order was granted and before it was served and enforceable. The public nature of this and other types of court proceedings is fundamental to our participatory judicial system; exceptions should remain limited and narrow.
Richard saw practical ways courts could lessen the likelihood of this type of disclosure resulting in harm to abuse victims short of making restraining order information confidential. For example, some courts schedule hearings on the same day requests for restraining orders are filed. This practice effectively shrinks the amount of time between the request, order, service, and enforciblity of restraining orders.
Did Jane act properly investigating the situation?
Dave, Zelda, and Richard thought Jane's investigation was incomplete. While appreciating the delicate nature of Jane’s situation, Richard was troubled by Jane’s reassignment and Dirk's subsequent resignation. Jane's concern that "Betty may be wildly exaggerating out of spite toward Erik" was most likely unfounded and indicated that Jane may need more education about the psychology of domestic violence. Jane's decision not to discipline Dirk was partially founded on her reluctance to place Betty in greater danger. If Betty would have permitted Jane to confront Dirk with this problem (with or without divulging his accuser), Jane could have completed her investigation and taken appropriate disciplinary action, if necessary.
Richard’s perception was that Jane acted in a respectful manner to all parties involved. Jane respected Betty and Lorraine by not divulging their names to Dirk. Her decision to reassign Dirk did not unfairly discipline him based on unchallenged accusations (although Dirk obviously perceived the reassignment as a punishment). Jane's reassignment of Dirk and issuance of the policy directive both were intended to preclude such a disclosure of sensitive restraining order information in the future.
The judge agreed with Richard that Jane respected for all sides in this scenario and her intentions were clearly honorable. Many of the current ethics writings seem to ignore a historical Judeo-Christian principle, that some ethics violations reflect human weaknesses or inadvertent misjudgments and are less serious than those involving a calculated scheme to harm others or gain personal advantage. Many of the ethics violations in this scenario may fall into the first category.
Judge Fritzler was concerned that all NACM code of conduct violations may be treated equally. There is no scale or guidance within the code on how to consider its provisions in the evaluation and sanctioning process. Often the actual ethics process does not allow rigorous challenge to the facts or legal-ethical basis for judgment rendered. These failures promote public skepticism, distrust of ethics commissions, and distrust of the ethical valuation processes.
Dave pointed out that Jane did not truly investigate; she did not seek independent verification from others present at the lodge that evening; she did not find out if this kind of activity was common practice for Dirk (or for other staff members). Dirk was reassigned without ever knowing why, and the greater issue was never discussed with staff, other than through a sterile "directive." Dirk therefore enjoyed the "righteous indignation of the unfairly treated," and
remaining staff probably saw Jane as arbitrary, capricious, and the sole reason why Dirk (with those 17 years of expertise and knowledge) left the court. Jane should have confronted Dirk, after fully investigating this and any other incidents, either by Dirk or anyone else connected with the court. Such an investigation could have been a springboard for discussion with all staff of these types of issues, and a learning experience for all. Instead, it concluded in a "fuzzy" and unsatisfactory way.
Since the actions taken were not relayed back to Lorraine, she, her agency, and most likely, other agencies with which Lorraine regularly communicates, were left with the impression there is no sense in communicating these types of problems to Jane or to the court. No one comes out of this well, when it could have been an opportunity to put together a coherent policy, clearly communicated internally and externally.
Did Jane act properly in reassigning Dirk?
Richard felt reassignment was an acceptable action, but not entirely satisfactory. Because Jane saw investigating the matter fully would place Betty in greater danger, she opted to "move the problem." Dirk obviously perceived his reassignment as a punishment. Jane did not confront Dirk with his actions or give him an opportunity to either defend himself or accept responsibility.
Judge Fritzler thought reassignment may have been proper and appropriate on a temporary basis pending a disciplinary hearing with due process considerations. The manner in which the reassignment was done and the permanent nature of the reassignment without provision for a reasonable hearing appeared to be inappropriate.
Zelda held that Jane did not act properly reassigning Dirk. Jane was not honest with Dirk regarding the need for his reassignment. As a long-time clerk with certain assigned tasks, Dirk deserved to be informed of the accusations, and deserved to receive this information directly from his supervisor. He also deserved an appropriate forum to address questions about his performance and behavior and any incidents of inappropriateness.
How should have Jane handled the situation with Dirk?
Richard agreed with Jane's handling of the situation up to the point that she chose not to discipline Dirk. Richard would have asked Betty for permission to confront Dirk with his actions, with or without the accuser being named. If Betty permitted a confrontation, Jane should have investigated further and possibly disciplined. If Betty was too frightened to permit a confrontation, Dirk would have been reassigned.
Judge Fritzler thought Jane should have formally investigated the problem by following previously developed court policies, and with an eye to an ultimate disciplinary action that would provide for due process and other elements of fairness. Any reassignment should been temporary only for as along as necessary to gather additional information and allow Dirk and the administration to prepare for any disciplinary hearing or action.
Zelda would have sought guidance from Human Resources and legal counsel before discussing the situation with Dirk. Such discussions would help determine what, if any, policy and procedural violations might have occurred. Then, Zelda would have informed Dirk of the allegations and the seriousness of his actions if proven to be true. If Dirk's statements corroborated Betty's, the answer would have been progressive discipline, starting with a warning and an oral reprimand. If Betty's statements are not collaborated, Jane should still have initiated a full-scale investigation due to the severity of the allegations and the adverse impact such allegations would have on the public trust and confidence in the court.
Like Zelda, Dave pointed out that Dirk was never given an opportunity to rebut the allegations or to recognize and perhaps correct his behavior. Also, Lorraine never was appraised of the result, so may be less likely in the future to bring other problems to Jane's attention. Jane and the court could lose in several dimensions.
Thanks again to The Honorable Randal Fritzler, Zelda DeBoyes, Richard Moellmer, and David Cable, for their thoughts and opinions on this scenario. I would like to hear from you if you have comments about this or any previous columns. Most particularly, call, write, or e-mail me if you have or know about a situation involving an ethical concern. My telephone number is 503/986-5937. You can write me at the Oregon Judicial Department, Supreme Court Building, 1163 State Street, Salem, Oregon, 97310. My e-mail address is Peter.C.Kiefer@state.or.us.