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May 15, 2008
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Judicial Conduct Board
‘Findings of Fact’
Re: Judge Boardman

Below is the text of "Findings of Fact" that were part of the order issued by the Vermont Judicial Conduct Board this week in the case of Windsor County Assistant Judge William Boardman. Relying on these findings, the board, sitting with all nine of its members, concluded by handing Boardman a six-month suspension and requiring him to complete a judicial ethics course at his own expense.

STATE OF VERMONT

JUDICIAL CONDUCT BOARD

IN RE: ASSISTANT JUDGE

JCB DOCKET NO. 06.036

WILLIAM BOARDMAN

FINDINGS, DECISION AND ORDER

This matter came before the Vermont Judicial Conduct Board (hereafter JCB) on the complaint of Mr. Greg Soula of Woodstock, Vermont, concerning actions taken by Windsor County Assistant Judge William Boardman. After a Preliminary Inquiry was completed, probable cause was found and a Formal Complaint was filed on August 22, 2007. The matter came on for hearing on the merits on February 1 and March 14, 2008. (NOTE: The entire Board was appointed by the Chair to be the hearing panel in this matter.) Upon receipt of the final transcripts on March 27, 2008 the matter was taken under advisement by the Board.

The JCB was represented by Board Counsel Richard Goldsborough, Esq. The Respondent, Assistant Judge Boardman, initially appeared pro se, but later was represented by Attorney Eric R. Benson.

Findings of Fact

The following findings of fact have been established by clear and convincing evidence. See Vermont Rules of the Supreme Court for the Disciplinary Control of Judges (hereafter RDCS) 9.

A. Emerge Conflict Allegation

  1. William Boardman is one of two elected assistant judges for Windsor County, Vermont. He was first elected in 1991 and was most recently re-elected in November of 2004. Assistant Judge David Singer is the second Windsor Assistant Judge, having been elected in November of 2006. He succeeded Assistant Judge Cooper, who served with the Respondent through January of 2007.

  2. As part of their statutory duties, the assistant judges create and administer the County budget each year. 24 VSA §131,133. Presently and for the last few years, the only non-governmental entity to receive money from Windsor County is a group called Emerge.

  3. Emerge is a non-profit corporation providing supervised parent-child contact exchanges and supervised visitation to parents in high conflict family court cases.

  4. The Respondent was a founder of Emerge and has, since 1997, been a member of the Board of Directors of Emerge. He served as the Vice-Chair of the Board for one year and at other times was its "informal" secretary. Respondent claimed at the hearing that the assistant judges negotiated with Emerge for a seat or seats on its board of directors in exchange for County funding. Emerge’s ByLaws originally did not give a seat or seats on the Board to the assistant judges. However, Ramona Russell, the Executive Director of Emerge since September of 1996, testified that the assistant judge seat was later added.

  5. Emerge’s Bylaws provide that there is a seat on its Board for the assistant judges so long as it receives funding from the County. The Bylaws further specify that: "(1) the vote associated with that [Assistant Judge] seat may be exercised by one or both Assistant Judges, individually or severally…" (Emerge ByLaws, §1(b). Exhibit 23.)

  6. Although the Respondent testified that his membership on the Board of Emerge was a part of his County duties, at other points in his testimony he downplayed his role, claiming he was only a "sounding board" for the organization and only attended about half the meetings. The evidence showed and the Board so finds that both Assistant Judges Cooper and Singer declined to be Emerge Board members. Judge Singer believed that doing so would create a conflict of interest.

  7. Many, but not all, of the parents who use Emerge’s services have been ordered to do so as part of their own Windsor County Family Court case. By law the assistant judges sit on family court cases and assist the presiding judge in deciding questions of fact.

  8. Emerge serves Windsor County, Vermont and at least two towns in adjacent New Hampshire.

  9. Emerge filed for and obtained 501(c)(3) status in 2007. It obtains funding from a variety of sources, including Windsor County, the U.S. Department of Justice, and the State of New Hampshire. It also charges fees for use on a sliding scale.

  10. Since its inception Emerge has struggled financially. However, Windsor County has contributed money to Emerge since at least 1996, and in the last two fiscal years, granted Emerge $12,000 in county funds. Although the 2007-2008 Windsor County budget was not provided during the hearing, the evidence showed that Emerge received the same amount in the last fiscal year from the County. No other non-profit was granted any funding by Windsor County.

  11. It was unclear whether Emerge is required by Windsor County to make a written request for funds each year. County Clerk Jamie Ammel testified persuasively, and the Board so finds, that Emerge did not submit a written request for funding every year, but that it was granted County money every year. In 2006 its appropriation was increased to $12,000 from $10,000. No written evidence of any request from Emerge was found for any year before 2005. Jane Ammel, the Windsor Superior Court clerk, knew of no other agencies that sought funding for the county that did not file a written request. There was no evidence adduced indicating that the County ever formally required Emerge to disclose how it used County funds in any year.

  12. The Respondent testified that no such disclosure was required since he, by virtue of his position on Emerge’s board, already knew how it was spending the County money it received.

  13. Emerge now operates out of the former Windsor County Sheriff’s office, a Windsor County building located on seven acres on Route 5 in the

    14. Town of Hartford. At some point after the creation of Emerge, the County and Sheriff began planning to relocate the Sheriff’s office to a County building in Woodstock.

  14. Before the building was vacated the County listed it for sale with local real estate broker Douglas Symmes. Mr. Symmes has over thirty years experience in the Upper Valley area of Vermont and New Hampshire. He secured an Exclusive Right (contract) to market the property from Assistant Judges Cooper and the Respondent on or about May 22, 2001. At that time the assistant judges offered the property for sale at $159,000, setting the price with the assistance of Mr. Symmes. At that time the property had an assessed valuation by the Town in excess of $250,000.

  15. Subsequently the assistant judges, on the recommendation of Mr. Symmes, decided to raise the asking price to $189,000. The reason stated by the broker for the increase was to give the County some negotiating room due to an uncertain wastewater capacity issue, which, if discovered by an offeror, would enable the County to appear to reduce the price while still realizing the original goal of $159,000. A marketing flyer was distributed, but no immediate offers were received.

  16. Eventually the realtor showed the property or distributed promotional materials on it some forty-two times, which resulted in three offers. Two of the offers were at or above the asking price, but no deal was consummated. In December, 2001, the County’s agreement with Mr. Symmes had expired, and he wrote the Assistant Judges suggesting a reduction in the price from $189,000 to $149,000. The Respondent did not sign this extension but another one was negotiated on or about February 20, 2002. However, within a few months thereafter, the third offer came, this one from Emerge, which signed a purchase and sales agreement with the County on April 10, 2002. This offer was accepted by the assistant judges, including the Respondent, on April 15, 2002.

  17. On April 15, 2002, the Respondent was still a member of the Board of Directors of Emerge. He testified that whenever the subject of the financial aspects of this transaction came up at Emerge Board meetings he would excuse himself from those discussions. Nevertheless, the acceptance of the offer by the County and by Emerge placed him, factually, on both sides of this transaction, as seller and buyer.

  18. Closing on the transaction was to occur within ten days of the Sheriff vacating the property, but no sooner than August 1, 2002. As a contract contingency, Emerge had until June 15, 2002 to secure financing. It was unable to secure financing until years later when an anonymous donor provided a personal guarantee to the bank.

  19. At some point after the fall of 2002 the Sheriff vacated the building and Emerge moved in and commenced operations. The Sheriff had not been able to relocate to Woodstock by August 1, 2002, as the County building there was not ready in time.

  20. Emerge has used the County building continuously since that time to the present. It operated out of the building for about five years with an oral agreement until it signed another purchase and sales agreement with the County (represented by the Respondent and Assistant Judge Singer) on or about July 15, 2007.

  21. During or about the fall of 2003, and at some point after it moved into the County building on Route 5, Emerge and the County began to discuss terms for its continued occupancy of the building. Emerge had been unable to obtain financing and had not otherwise been able to perform the original contract. The County, however, did not treat that failure as a default and the building was not put back on the market. Instead, the parties began to negotiate and produced a draft "Letter of Understanding" which was never signed by either Emerge or the County. This unsigned document became the general operating agreement between the parties.

  22. From the inception of the proposal to sell the building to Emerge, the Respondent was the "go-to" person with the best knowledge of the condition of the building and the financial aspects of the transaction. Joseph Verdine was the President of Emerge for three years, and its Vice-President for three of his years as a member. He has been on its Board since 1998. Mr. Verdine testified, and the Board so finds, that throughout his time on the Board, the Respondent was the person to whom others looked for details about this transaction. When, in August of 2006, the Town of Hartford inquired of the County Clerk, Ms. Ammel, about buying the Sheriff’s building, she referred them (through Town Manager Hunter Rieseberg) to the Respondent.

  23. The Respondent was also involved in assisting Emerge in its efforts to obtain financing for the purchase of the County building. Exhibit 5 is a series of e-mails between the Respondent and Terry Martin, the loan officer at Mascoma Savings Bank from whom Emerge was seeking financing. On January 24, 2007, the Respondent told Mr. Martin that he "just nudged" Mona Russell, the Executive Director of Emerge, over the issue of getting a signed Board Resolution for the financing. On December 18, 2006 Mr. Martin thanked the Respondent for his "help". Mr. Martin had phone conversations with the Respondent concerning financing, and he noted that it was unusual to be dealing with one individual who was on both sides of the transaction (i.e., buyer/borrower and seller). The Board finds that the Respondent was involved in assisting Emerge to obtain financing for its purchase of the County property.

  24. Emerge proved to be an unreliable tenant. It was often late on its rent for months at a time and was, on at least one occasion, bailed out by the infusion of the annual grant from Windsor County. Despite Emerge’s chronic delinquency, no eviction or collection proceedings were ever instituted against it by the County.

  25. Barbara Frizzell has been the Windsor County Treasurer since 1981. In that position she handles the County budget, acts as its bookkeeper, keeps County financial records, and writes checks to meet County obligations.

  26. In that position she kept constant track of Emerge’s payment of its rent and other obligations to the County. She testified, and the Board so finds, that Emerge was chronically late with its rent payments to the County.

  27. Since Emerge never had an enforceable rental agreement with the County it was a month to month tenant throughout its tenancy. According to County records kept by Ms. Frizzell, Emerge occupied the County building in that status from October of 2003 until October of 2007. During that time Emerge failed to pay its monthly rent due ($910.70) some 39 times out of those 48 months. In many months it paid double or triple to catch up for the previous months in which no payments were made. On occasion, only the infusion of money from the County enabled Emerge to catch up on the back rent. By the time of the closing Emerge still owed the County $12,750.20 in back rent.

  28. Ms. Frizzell testified, and the Board so finds, that Emerge never paid the County the back rent owed. She brought the rental delinquency to the attention of the assistant judges, including the Respondent, on several occasions. She was told not to worry about it, and that it would be taken care of at the closing. On one such occasion, the Respondent told Ms. Frizzell that he would call Ms. Russell himself concerning the back rent owed. In fact, the 06-07 Windsor County budget showed no actual rental payments by Emerge against $10,920 due.

  29. Emerge also had an oral agreement with the County to pay some of the electric bill for the Route 5 property, including the radio tower located thereon. Apparently the Respondent negotiated an arrangement with the tower operator, referred to in County records as "VOX", for it and Emerge to share the electric bill for the property because the two users shared the same meter. Emerge was often delinquent in paying its share of the electric bill. By the time of the closing, Emerge still owed the County $10,703.84 in unpaid electrical charges.

  30. Ms. Frizzell testified, and the Board so finds, that Emerge never paid the County the back electric charges it owed.

  31. Emerge and the County signed a second purchase and sales agreement for the transaction between June 28, and July 15, 2007. Respondent and Assistant Judge Singer signed on behalf of the seller, Windsor County.

  32. The Town of Hartford owns 65 acres surrounding the County property on Route 5. On August 25, 2006 it expressed an interest in buying the subject property from the County. On March 28th Hartford wrote the County a letter and on the 29th Mr. Rieseberg e-mailed the Respondent and repeated the Town’s interest in acquiring the property. The Town proposed a cash sale and asked to hear from the County in the "near future." Between August of 2006 and March of 2007 the County had no binding purchase and sales agreement with Emerge.

  33. On April 2, 2007 Mr. Rieseberg again e-mailed the Respondent, indicating the Town was prepared to begin negotiations with the County "immediately" for the purchase of the property. Mr. Rieseberg correctly pointed out that the County had no binding contract with Emerge and that Emerge had "not followed through" with the purchase. Mr. Rieseberg reminded Respondent of his comment, during a public hearing, that the County intended to put the property on the market on July 1, 2007. Mr. Rieseberg was responding, in part, to an April 1, 2007 e-mail he received from the Respondent indicating that the County had " a long-standing prior commitment to Emerge[.]"

  34. The County never responded to the Town’s March 28th letter and proceeded with its arrangements with Emerge.

  35. The closing took place on October 22, 2007. Emerge actually paid $93,000 for the property by virtue of several credits granted it by the County. Further credits it received reduced the amount actually received by the County to $71,755.90.

  36. Emerge was charged $719.84 for past-due electric bills. However, the actual amount owed for electricity by Emerge was $10,703.84.

  37. Instead of paying off its back rent to the County, Emerge was given a positive credit for rent paid totaling $1,874.10.

  38. Ms. Frizzell provided Assistant Judge Singer the correct figures for the past due electric bills and past due rent.

  39. Assistant Judge Singer assumed office in February of 2007. He was aware of the informal arrangement to sell to Emerge, on whose Board he declined membership. He was concerned that the Respondent was on both sides of the proposed transaction and discussed that with the Respondent. Assistant Judge Boardman assured Mr. Singer that he, Boardman, had recused himself from all Board discussions of the financial aspects of the purchase of the County property by Emerge. Assistant Judge Singer signed the purchase and sales agreement with Emerge, as well as the HUD 1 settlement statement, believing that all of the credits being granted to Emerge were based on figures supplied by Treasurer Frizzell. He was not aware of the magnitude of the unpaid rent and electric bills owed to the County by Emerge. Assistant Judge Singer also believed, erroneously, that the County was giving money to the Diversion program which, it appears, eased his concerns about the treatment that Emerge was receiving from the County. Judge Singer perceived that the Respondent wanted to sell the property to Emerge to the exclusion of any others.

    40. B. Allegation of Sign Removal

    and Lack of Retraction

  40. The Respondent was involved in a three-way primary race for re-election in the fall of 2006.

  41. In October of 2006 he approached the Fat Hat Factory, a business in Quechee, and asked to place one of his campaign signs there. Permission was granted and the sign was placed on the front lawn of the business, along with several other candidates’ signs, on or about October 18th.

  42. On or about October 19th the sign disappeared. The Respondent assumed it had been stolen and on or about October 21st went to the Fat Hat business and grilled a clerk about its disappearance. That same day he reported the "theft" to police. On October 24th he had a tense confrontation with the business owner, Joan Eckerd, about the disappearance of his sign. On or about October 21st he also wrote a letter to the editor to the Vermont Standard suggesting that the sign had been stolen. This was published on November 2, 2006, only days before the election.

  43. In his letter he described the disappearance as a theft and implied it was done as a political dirty trick. In fact, he knew by October 26th that the business owner had taken the sign down as she disapproved of his candidacy. On that date the Valley News published a report from reporter John P. Gregg quoting Ms. Joan Ecker indicating that she had taken the sign down because she didn’t want it on her property.

  44. Despite having this knowledge, the Respondent did not seek to withdraw the letter to the editor. During his testimony in these hearings he suggested that the Vermont Standard had caused the problem by publishing the letter despite knowing that he did not intend it to be published. The Respondent claimed that he had captioned the letter as a "media advisory" and not as a letter to the editor. On that basis, he argued that the Vermont Standard should have known not to publish it. However, even the email version of the letter supplied by Respondent carries no heading "Media Advisory." The Board does not accept the Respondent’s claim that this letter, however titled, was not intended for public consumption.

  45. Kevin Forest is the Editor of the Vermont Standard. He has been with the paper since 1979.

  46. He testified, and the Board so finds, that since his election the Respondent has been a prolific and frequent letter writer to the Editor, to include a regular column entitled "Courtroom Notes." Mr. Forest always published all of the Respondent’s submissions (sometimes with editing).

  47. Before November 2nd, Mr. Forest received an e-mail from the Respondent asking whether his letter had been published. Mr. Forest assumed that the Respondent was referring to the "Who Stole the Sign" letter, and published it along with a self-laudatory letter the Respondent had also recently submitted on or about November 2nd. Exhibit 11A shows the two letters published on that date.

  48. The Respondent contacted Mr. Forest a few days later and accused him of running the "wrong" letter in the paper on November 2nd. In fact, this was several days after the Valley News had already run its piece revealing that the Respondent’s sign had not, in fact, been stolen.

  49. Mr. Forest testified that the Vermont Standard would have printed an after-the-fact retraction if Respondent had so requested. It is undisputed that he never did so.