The state’s Judicial Conduct Board has proposed a rule change to strip its chief counsel of the ability to determine whether anonymous complaints warrant full investigations without consulting the board’s members.
The proposal, published in the March 12 issue of the Pennsylvania Bulletin , was adopted by the JCB early last year as a part of new internal operating procedures designed to restore authority to the board members. Those IOPs, however, are “directory” in nature and don’t require that such a practice be followed.
A rule change would make the practice a mandate.
“What you see there is the practice that the board has been following for the past year,” the JCB’s chief counsel, Joseph A. Massa Jr., said of the published proposal. “It’s an affirmative, proactive response to that.”
Under the change, it would be required that all anonymous complaints received by the board be entered into an “intake and status log.” Those complaints would then be presented to board members before a decision could be made on whether to “open a file or initiate a preliminary inquiry or investigation,” according to the published proposal.
The current rule, adopted in 1995, allows the board’s chief counsel to determine whether an anonymous complaint should be investigated.
Superior Court Judge Christine M. Donohue, a board member and former chair, said the proposed change was necessitated by the fact that JCB rules “trump any internal operating procedures.”
“Since they were inconsistent, we really had to publish the IOP as a new rule, so it got to be the official manner in which the board proceeded,” she said. “It was purely a housekeeping function.”
Since the board’s IOPs were adopted early last year, the JCB has also returned to a February-February calendar for electing new officers.
With that, Donohue, who was elected chair in August, has completed her term. Hank Abate, the senior vice president of SMG Stadiums and Arenas in West Conshohocken, Pa., is the JCB’s new chair.
Donohue said she had been committed 20 hours a week to JCB work and that carrying such a load for 18 months, instead of 12 months, would “not be fair to the rest of her chambers.”
“This actually makes a lot of sense, considering we have so many new members,” Donohue said. “Having elections when old members were going off didn’t make a whole lot a sense.”
The current JCB rule governing anonymous complaints came under fire while the Interbranch Commission on Juvenile Justice held hearings to probe the causes of the Luzerne County juvenile justice scandal.
And though court watchers and members of the Interbranch Commission have criticized the JCB for those actions, many of the same are saying they’re pleased with the proposed change.
Lynn Marks, the director of Pennsylvanians for Modern Courts, said the proposal should be seen as a positive development.
“It’s good the Judicial Conduct Board is doing a deep self assessment,” Marks said. “I respect they’re doing this, because, obviously, it was really shaken up after Luzerne. I guess this is one more indication that they are looking at their procedures in their entirety and how they go about their work.”
Marks noted she had questions about the timing of the rule change, since the American Bar Association is scheduled to file a report recommending changes to the JCB early this summer.
“I don’t know if this means they’re going to introduce many of the [IOPs] as rule changes,” Marks said.
To Susquehanna County District Attorney Jason J. Legg, who served as a member of the Interbranch Commission, the proposed rule change was one that should be “commended.”
“When we talk about transparency, they’re trying to be. They’re trying to let people know, to show they’re taking the issue seriously and trying to become better,” Legg said of the board’s proposed rule change. “All they can do is move forward at this point. If you don’t learn from your mistakes and try to improve … the question is whether they’ve learned. And it seems they’re making every effort to become a better watchdog. If they do that, I think they’ll fulfill their constitutional obligations.”
Legg did say, however, that there was “some credibility” to the practice of allowing Massa to determine whether an anonymous complaint merited an investigation.
It worked, he said, in the case of the anonymous complaint filed against Conahan.
“You can argue that wasn’t a reasonable amount of time, but it certainly got to the board,” Legg said. “And the reasoning and rationale as to why it was tabled is something people can dispute.”
For Legg, the real issue with which the board must contend is that of what to do with criminal allegations.
The attorney disciplinary board faces a similar problem, he said.
“What is the best use of resources? Should we just wait [until law enforcement finishes its investigation]?” Legg asked. “The flip side is, if you have criminal activity, there should be a priority to get that person off the bench. There are no easy answers.”
During a series of hearings, Massa told the commission that he was a “gatekeeper” for judicial conduct complaints. Further, the JCB provided the commission with information that it took nearly seven-and-a-half months for Massa to notify members of a September 2006 anonymous complaint filed against former Luzerne County Judge Michael T. Conahan that detailed allegations of case-fixing, mob ties and the improper placement of juveniles in a privately owned juvenile detention facility.
When members learned of the complaint, according to the JCB, it was through a memorandum prepared by Massa. That memorandum, which recommended the board conduct a full investigation into Conahan, did not contain allegations of case fixing or Conahan’s relationship with fellow former Luzerne County Judge Mark A. Ciavarella Jr. Instead, the board said, it focused on “nepotism, political activities, conflict of interest and of association with individuals believed to be known criminals.”
The board chose to table the complaint and no follow-up action was ever taken.
A copy of that complaint was also sent directly to the U.S. Attorney’s Office for the Middle District of Pennsylvania in September 2006 and reviewed by federal authorities, sources previously told the Law Weekly .
Massa, however, did not provide federal investigators with a copy of the complaint until April 2008. When he did, he did it without notifying board members.  •