Injudicious

An argument this week before the Ohio Supreme Court

Disciplinary Counsel v. Hon. Timothy S. Horton, Case no. 2018-1746
Franklin County

The Board of Professional Conduct recommends an indefinite suspension for former Judge Timothy S. Horton, who served on both the Franklin County Common Pleas Court and the Tenth District Court of Appeals. His misconduct includes reporting excessive campaign expenses, misusing county resources and staff for campaign activities, and inappropriate sexual conduct toward and sexual harassment of his staff.

The Office of Disciplinary Counsel, which investigated the matter, recommended an indefinite suspension. Although the three-member panel that heard the disciplinary case recommended a two-year suspension with one year stayed, the board elevated the suggested sanction back to an indefinite suspension because of the judge’s “predatory and harmful conduct” and “flagrant abuse of his position of authority” toward women in his office.

Judge Submits Excessive Expenses in Unopposed Race for Appeals Court
Horton was elected to the common pleas court in November 2006. Emily Vincent, hired in May 2012, was his staff attorney. In the summer of 2013, a woman identified as MB worked as a legal intern for Horton. In October 2013, the judge hired Elise Wyant as his secretary.

In 2014, Horton ran for a seat on the Tenth District Court of Appeals. In March, his opponent withdrew from the race, and Horton was unopposed in the election. Although unopposed, he held a campaign fundraiser where only one person not on the campaign was at the event and a private campaign event to celebrate his opponent’s exit from the race. He submitted the restaurant expenses of $1,992 as well as $173 for cigars on his campaign finance reports.

He was charged with criminal offenses for reporting excessive and unreasonable expenses to his campaign treasurer that led to the filing of inaccurate campaign finance reports. He pled guilty to three first-degree misdemeanors in March 2017.

Judge Had Staff Work on Campaign During Court Hours
The professional conduct board also found Horton failed to prohibit his staff from soliciting or receiving campaign contributions and he made his staff work on his campaign for the Tenth District during their work hours at the common pleas court. For example, in preparation for a meeting seeking an endorsement from the then-Columbus mayor, the judge directed Vincent to compile a list of cases in which the judge had ruled in the city’s favor, she testified. Wyant sent campaign-related letters and made phone calls during work hours, and Horton had her pick up campaign checks while on the court’s time, accept checks at the courthouse, and attend multiple golf campaign events with him. He told her she didn’t need to take any leave time while at the daytime outings.

Staff Describe Repeated Sexual Comments, Propositions, and Conduct
MB, a 22-year-old law school student, testified that during her internship the judge, who is married, started out remarking on her appearance, then expressed that he wanted to have sex with her and made other sexual comments. He repeatedly reminded her about the importance of loyalty within the legal community and that he was able to get people jobs because he was a judge. After her internship ended, the judge and MB met occasionally for lunch or happy hour, and they also engaged in sexual activity. MB stated that she consented but didn’t want to. At times, the judge invited his friends to touch her, despite her objections. She described the emotional harm the judge’s conduct caused her.

Wyant and Horton met when she was working as a part-time hostess at a bar and grill. When his secretary position opened, he talked to Wyant about the job, and she accepted it. Wyant, who was 25 when hired, said the judge expected her to be available to him at all times. The judge commented daily to Wyant about her appearance, made inappropriate sexual comments to her at work, sent her inappropriate text messages, and expected her to attend happy hours. She stopped socializing with Horton in June 2014. The judge promoted her to be his bailiff three months later.

In October 2014, Wyant reported Horton’s behavior to the court’s human resources office, and she resigned – leading to an investigation by the court. During the disciplinary hearings, Vincent also recounted similar inappropriate sexual comments. Some witnesses testifying in the case didn’t see instances of Horton’s misconduct, while others did.

Board Recommends Indefinite Suspension
The board noted that Horton showed awareness of his impropriety when he asked MB numerous times whether she was wearing a wire and said his comments could get him in trouble.

“[Horton’s] conduct was predatory when he engaged in inappropriate sexual discussions with his employees and former employees of the court. As an employer and as a judge, he exerted control, power, and influence thus putting him in an advantage when he engaged in such conduct,” the board’s report concludes.

Among the aggravating factors identified, the board’s report notes multiple judicial and attorney conduct rule violations, Horton’s attempt to shift blame to his former employees – including his attorney’s opening statement at the disciplinary hearing that “they gave as good as they got,” and his actions constituting sexual harassment. In mitigation, Horton has no earlier discipline, presented substantial character testimony, and testified about his abuse of alcohol.

The board concluded that an indefinite suspension, contingent on several conditions, is needed to protect the public and promote public confidence in the judiciary. The recommended conditions are continued attendance at Alcoholic Anonymous meetings, evaluation by the Ohio Lawyers Assistance Program and compliance with the organization’s terms, no further contact with the former female employees or interns who testified, and payment of the proceeding’s costs.

In late January 2019, Horton resigned from his position on the Tenth District Court of Appeals.

Horton Disputes Board’s Conclusions, Wants Lesser Sanction
Horton filed objections to the board’s findings and recommended sanction. He maintains that the panel refused to let him introduce evidence at the hearings that his words and deeds weren’t unwelcome when considered in full context. Because of the panel’s decision, Horton states that the Supreme Court is deprived of a complete record of the underlying events, and he asks the Court to remand his case for a new hearing.

He contends that the second count against him, regarding his staff’s campaign activities during the court’s work day, were minimal. The board also confused campaign expenditures, which his employees were handling, with campaign contributions, as mentioned in the rules, Horton states. The facts don’t support this violation, and he asks the Court to dismiss it.

He also doesn’t believe that earlier disciplinary cases support an indefinite suspension for his misconduct. Instead of imposing a sanction that protects the public, the board suggests “an overly punitive sanction untethered from the case law, the record in this case, or the purposes of the disciplinary process,” his objections state. He also stresses his work in battling alcoholism since he stopped drinking in December 2015. In his view, his sanction should be no greater than a fully stayed suspension.

Disciplinary Counsel Answers Horton’s Claims
The disciplinary counsel responds that the panel’s chair curtailed Horton’s presentation of evidence for legitimate reasons. For example, the chair limited the cross-examination of Wyant and MB based on relevance, improper attempts at impeachment, repetition, and improper tone. The chair also blocked questioning of Wyant about her sexual relations with other men. The disciplinary counsel notes that Horton testified about his perspective on the circumstances related to his actions. The board, however, viewed the testimony of Vincent, Wyant, and MB as more credible than Horton’s, the office adds.

The office also states that Horton’s use of staff and county resources for his judicial campaign were regular, rather than minimal, occurrences. “Horton failed to avoid even the appearance of impropriety” when violating the judicial rules against having his staff solicit or receive campaign contributions, the disciplinary counsel’s brief counters. The office adds that Horton’s campaign finance reports list each check in question as a “contribution.” Even if the Supreme Court disagrees on the categorization of that money, the disciplinary counsel argues that Horton’s other activities still show a violation of the relevant rule.

There have been no disciplinary cases in which a judge violated the same rules as Horton, so the board considered campaign finance and sexual harassment cases together to determine a sanction, the office explains. On the issue whether the interactions and sexual activity between Horton and the women were consensual, the disciplinary counsel points out the imbalance of power in those relationships. “Their apparent consent does not mitigate his misconduct,” the disciplinary counsel writes. Also, Horton didn’t establish that his alcoholism caused his misconduct, and he engaged in misconduct at the office when he wasn’t drinking, the disciplinary counsel asserts.

The “egregiousness and cumulative severity” of Horton’s misconduct while a judge combined with the aggravating factors justifies an indefinite suspension, the office concludes.

– Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Contacts
Representing Timothy S. Horton: Rick Brunner, 614.241.5550

Representing the Office of Disciplinary Counsel: Scott Drexel, 614.461.0256

(Mike Frisch)