Vt. Disc. Control of Judges R. 8

As amended through May 6, 2024

Rule 8 - Alternatives to a Formal Complaint

(1) Dismissal. If the Board determines that the complaint is unfounded, or that there is otherwise insufficient cause for further proceedings, it shall dismiss the complaint and advise the complainant and the judge in a written letter of its action and the reasons therefor.

(2) Written warning. The Board may issue a nonpublic written warning when it concludes that (a) the conduct is potentially a violation of the Code if proved, but is not established by clear and convincing evidence, or (b) the conduct is potentially a violation of the Code but on its own is so minor that discipline is not warranted, or (c) for other reasons the Board concludes that a Formal Complaint is not warranted. A written warning is intended to alert the judge that the alleged conduct might rise to the level of a violation requiring action if it occurred on multiple occasions, and to provide suggestions for improvement when appropriate. Conduct that has been the subject of a written warning may later be used as the basis for a Formal Complaint if further complaints are filed within three years of the date the first complaint was filed with the Board. The fact that a judge has been the subject of one or more written warnings may be considered in determining the appropriate level of any later sanction.

(3) Deferred discipline agreement. The Board may propose a deferred discipline agreement in any case in which it believes a violation has occurred but (a) the conduct is not a serious violation, and (b) the conduct did not appear to cause significant harm to any person, and (c) the judge admits the violation, and (d) there is no evidence of a pattern of similar violations by the judge, and (e) it appears to the Board that the conduct at issue is not likely to be repeated by the judge. Such an agreement may also be entered into if the Board considers it important to avoid future violations (for example, by assuring that substance abuse treatment or counseling is obtained) even when the current violation might not otherwise merit a Formal Complaint.

Deferred discipline may not be imposed except by agreement. The agreement may impose terms and conditions as an alternative to discipline. Such terms and conditions may include, but are not limited to, education. psychological counseling, substance abuse programs, monitoring or review by the Administrative Judge or other suitable person, and--with the concurrence of the Administrative Judge--limitations on the performance of judicial duties. The Board may direct the Administrative Judge to monitor compliance with the conditions of the agreement, and may direct the judge to document compliance. The Board shall inform the Administrative Judge and the complainant that the complaint has resulted in a deferred discipline agreement, but unless the judge consents in writing, shall not inform the complainant of the terms of the agreement. If such an agreement is entered into after the filing of a Formal Complaint, the fact that a deferred discipline agreement has been entered into shall be made public, although the terms thereof shall remain confidential except when disclosure is permitted pursuant to Rules 6.(8), 6.(9), or 6.(27), above. In addition, such agreements may be reviewed and considered by the Board if relevant to determining whether to proceed on any future complaint filed with the Board, or what sanction to impose in any future proceeding before the Board.

Copies of all deferred discipline agreements, once signed by the Board and the judge, shall be provided to the Supreme Court.

Upon successful completion of all terms or conditions, the complaint will be dismissed. Subject to the disclosure provisions of Rule 6, the deferred discipline agreement shall remain confidential upon dismissal. A judge's failure to comply with a material term or condition of the agreement, without just cause, may result in the revocation of the agreement and further disciplinary action authorized by these rules, and may constitute an independent basis for discipline separate from the underlying complaint.

If the judge does not consent to enter into a deferred discipline agreement, the Board may pursue any other action authorized by these rules.

Vt. Disc. Control of Judges R. 8

Adopted Dec. 21, 2010, eff. 2/21/2011.