It's really hard to fire people. When you actually find a way to get rid of an employee who isn't performing well, then you have to worry about a lawsuit, (which your insurer will probably force you to settle).
While everything you know to be right and good may not matter in an employment lawsuit, it does still matter in a Ninth Circuit Court of Appeals judicial misconduct complaint.
Today, we have the tale of a complainant who alleged that a district judge mishandled the termination of two former employees and interfered with one of the employee's efforts to get a new job.
The complaint didn't go very far.
In a 2004 decision regarding a different judicial misconduct complaint, the Ninth Circuit concluded, "Personnel decisions are administrative functions, not judicial functions." They aren't considered judicial acts.
A judge can commit judicial misconduct when performing administrative functions, (e.g. embezzlement or sexual harassment), but charges of misconduct must allege more than disagreement with the judge's administrative decision.
Chief Judge Alex Kozinski, who wrote the opinion, could have left the matter there. "Sorry, Complainant. You lose." But the reason we enjoy Judge Kozinski is that he typically capitalizes on opportunities to point out the ways that a party's arguments make no sense.
Here, Judge Kozinski notes in the opinion:
Complainant alleges that the judge told one of the employees that he would disclose the employee's performance issues to prospective employers. Telling potential employers about past performance issues isn't improper. Indeed, employers often serve as references for former employees by writing recommendations or responding to queries from potential employers. It is not misconduct to let employees know that their performance will be reported to prospective employers.
Most of us know that we can't actually tell prospective employers about former employee's performance problems because we will be sued, our insurers will settle, and our premiums will go up. But judges have that whole immunity thing going for them, which means that they get to speak the truth in cases where the rest of us are restricted to silence.
If you work for a federal court, mind your Ps and Qs: A federal judge seems to be one of the few employers who can be completely honest with a prospective employer about your job performance.
- In Re Complaint of Judicial Misconduct (Ninth Circuit Court of Appeals)
- Panel Unlikely to Find Judicial Misconduct in Cal Prop 8 Appeal (FindLaw's Ninth Circuit Blog)
- Sixth Circuit Says Club Membership is Judicial Misconduct (FindLaw's Sixth Circuit Blog)