Former state Superior Court Judge Robert A. Graci has taken over as chief counsel of the state’s Judicial Conduct Board from Joseph A. Massa Jr., who will retire at the end of the year.
Graci, who officially assumed his new role on October 1, comes to the JCB from the Harrisburg office of Pittsburgh-based Eckert Seamans Cherin & Mellott, where he chaired the firm’s appellate group.
Speaking to The Legal on Thursday, Massa, who will remain with the JCB as senior counsel until December 31, called his nearly 11-year tenure as chief counsel of the JCB a “challenging, humbling” experience and said that after a 43-year legal career, he felt it was time to “enjoy the fruits of my labor.”
Massa leaves behind a markedly different JCB than the one he joined in 2002, largely due to changes the board has made in the wake of the Luzerne County judicial corruption scandal.
Massa said those changes are ongoing.
Graci told The Legal on Wednesday that the board is still in the midst of considering many of the recommendations the American Bar Association’s Standing Committee on Professional Discipline made in the 56-page report it issued on Pennsylvania’s judicial conduct system last June.
“It’s a continuing process and I fully expect to be a part of that,” Graci said.
Several of the ABA’s recommendations called for increased transparency with regard to how the JCB handles complaints.
For example, the ABA, in its report, issued a strong recommendation to keep complainants privy to the status of their claims rather than just the final disposition, noting that the confidentiality provisions of the board are to protect judges and witnesses, not to keep complainants in the dark.
In January, the JCB issued a press release in response to the ABA’s report, saying the board had “concluded that it has struck the proper balance between transparency and confidentiality” and would not revise its policy on confidentiality.
The board did say in the same press release, however, that it would begin advising complainants of the status of their complaints.
Graci told The Legal on Wednesday that maintaining confidentiality is more than just a concern for the board, it’s a constitutional mandate aimed in part at protecting the judges against whom allegations are leveled.
Graci said that around 90 percent of the complaints the JCB receives prove to be unfounded and disclosing information about those complaints could potentially damage judges’ careers.
“Does that mean transparency suffers? In some sense, I suppose the answer has to be yes, but I think the greater good is preserving confidentiality,” Graci said.
Graci added the confidentiality mandate is as much intended to protect the identity of the accusers as it is the judges. He also noted that many of the complaints the board receives are anonymous.
The ABA recommended in its report that the JCB re-evaluate the way it handles anonymous complaints, suggesting that the board do away with its requirement that complaints be submitted in writing and signed, neither of which is required by the state constitution.
“Requiring written and verified complaints chills complainants’ willingness to come forward with information about judicial misconduct,” the ABA said in its report.
Massa said Thursday that the JCB has changed its internal operating procedures to require that all complaints be presented to the board within 30 days of receipt for a determination on whether to investigate further.
Previously, the chief counsel had the power to decide whether an anonymous complaint should be investigated, a policy that came under fire while the Interbranch Commission on Juvenile Justice held hearings to probe the causes of the Luzerne County juvenile justice scandal.
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.
Massa said the JCB’s goal now is to “recognize how important every complaint is and how important it is to act timely, diligently and properly with credible complaints.”
Graci, a former assistant executive deputy state attorney general, said Wednesday that in his short time with the JCB, he’s already seen the board open at least one investigation based on an anonymous complaint.
The ABA also recommended in its report that the JCB become more accessible and take more steps to educate judges, lawyers and the public on how it operates.
“Early in my tenure we began what we called ‘Operation Outreach,’” Massa said. “My goal was to make the bench, the bar and the public aware of how [the board] operates and what it does.”
As part of that effort, Massa said he participated in panel discussions with bar associations across the state.
“The board would welcome invitations from any group to participate in any appropriate event to get the message out,” Massa said.
Graci said that while confidentiality is key with regard to the sources and subjects of complaints, he believes the JCB must be transparent about its procedures for receiving and handling complaints.
Graci said that when he informed his contacts that he would be taking over as chief counsel of the JCB, he was “astounded” at the number of attorneys who did not seem to know exactly what the board does.
Graci was a member of the Pennsylvania Bar Association’s Task Force on the Interbranch Commission on Juvenile Justice and chair of its Continuing Legal Education Program Development Subcommittee, through which he helped organize a daylong CLE program in June of last year aimed at educating lawyers on how the JCB operates.
According to Graci, the event garnered the largest attendance of any Pennsylvania Bar Institute program, but even with that and other similar outreach efforts by Massa and the JCB, there remains a lack of understanding in the Pennsylvania legal community as to how the judicial discipline process works.
“When people come up to me, knowledgeable people, and say, ‘What does the JCB do and how does it work?’ — if that’s an aspect of transparency, and I believe it is — that’s something we have to work on,” Graci said.