STATE OF NEW YORK
COMMISSION ON JUDICIAL CONDUCT

In the Matter of the Proceeding
Pursuant to Section 44, subdivision 4,
of the Judiciary Law in Relation to

DETERMINATION

RICHARD H. MILLER, II,
a Judge of the Family Court,
Broome County.

THE COMMISSION:
Joseph W. Belluck, Esq., Chair
Paul B. Harding, Esq., Vice Chair
Jodie Corngold
Honorable John A. Falk
Taa Grays, Esq.
Honorable Leslie G. Leach
Honorable Angela M. Mazzarelli
Honorable Robert J. Miller
Marvin Ray Raskin, Esq.
Akosua Garcia Yeboah
APPEARANCES:
Robert H. Tembeckjian (Cathleen Cenci and S. Peter Pedrotty, Of Counsel),
for the Commission
DerOhannesian and DerOhannesian (by Paul DerOhannesian, II) and
Scalise & Hamilton, PC (by Deborah A. Scalise) for respondent

Respondent, Richard H. Miller, II, a Judge of the Family Court, Broome County,

1

 was served with a Formal Written Complaint dated July 9, 2018, containing four charges.
Charge I of the Formal Written Complaint alleged that respondent engaged in a pattern of
inappropriate behavior toward certain staff members of the Broome County Family Court
including unwelcome comments of a sexual nature. Charge II alleged that respondent
lent the prestige of judicial office to advance his private interests and failed to conduct his
extra-judicial activities so as to minimize the risk of conflict with his judicial obligations
in that he asked his court secretary and court attorney to perform services unrelated to
their official duties. Charge III alleged that while a full-time judge respondent
improperly engaged in the practice of law. Charge IV alleged that respondent failed to
file timely and accurate disclosure reports of his income from his extra-judicial activities
to the Ethics Commission for the Unified Court System ("UCS"), the Internal Revenue
Service, the New York State Department of Taxation and Finance and the clerk of the
Broome County Family Court as required. Respondent filed a Verified Answer dated
August 8, 2018.
By Order dated September 18, 2018, the Commission designated Robert A.
Barrer, Esq. as referee to hear and report proposed findings of fact and conclusions of
law. A hearing was held on January 7-11, 2019 in Binghamton, New York and on
February 12, 2019 in Albany, New York. The referee filed a report dated June 20, 2019
in which he sustained portions of Charges I and II, found Charge III not proved and
sustained Charge IV of the Formal Written Complaint.

2

 The parties submitted briefs to the Commission with respect to the referee's report
and the issue of sanctions. The Commission recommended that the referee's findings and
conclusions be confirmed in part and disaffirmed in part. Respondent recommended that
the referee's findings and conclusions be confirmed. Commission counsel recommended
the sanction of removal; respondent's counsel argued that a sanction no greater than
censure be imposed. The Commission heard oral argument on October 17, 2019 and
thereafter considered the record of the proceedings and made the following findings of
fact.
1.

Respondent has been a Judge of the Family Court, Broome County since

January 1, 2015. His current term expires on December 31, 2024. He served as a Justice
of the Union Town Court, Broome County from 1996 to 2014 and as a Justice of the
Johnson City Village Court, Broome County from 2002 to 2014. Respondent was
admitted to the practice oflaw in New York in 1994.
As to Charge I of the Formal Written Complaint:
2.

In August 2016, Rebecca Vroman became a court assistant in Broome

County Family Court assigned to respondent's courtroom. Ms. Vroman's
responsibilities included assisting respondent with emergency petitions.
3.

Debbi Singer was the chief clerk of the Broome County Family Court until

she retired in June 2018.
4.

Chief clerk Singer was Ms. Vroman's supervisor.

On February 6, 2017, respondent was assigned as emergency intake judge.

Ms. Vroman assisted him in the courtroom that day.

3

 5.

On February 6, 2017, several emergency petitions came in during the

afternoon court session. Respondent testified that he had a physical therapy appointment
that day.
6.

Ms. Vroman testified that on February 6, 2017 respondent, "started telling

me to go faster, that I was going too slow. He had some place he needed to be at 4:00, so
we needed to get out of there, and he just - you know, it just kept going on and on and
on."
7.

Ms. Vroman testified that respondent, "yelled at me and told me I was

going too slow and that I needed to move faster and he just was being very rude and
disrespectful and condescending and demeaning and just very belligerent to me."
8.

Ms. Vroman, who was very upset about respondent's behavior toward her,

immediately reported the incident to the deputy chief clerk. Chief clerk Singer testified
that Ms. Vroman also complained to her that respondent "had berated her in the
courtroom, screaming and yelling at her ... she felt very demeaned by it and she wrote a
letter about it." Ms. Vroman detailed respondent's conduct in writing to Ms. Singer on
February 8, 2017.
9.

After respondent learned that Ms. Vroman had complained about his

discourteous and demeaning behavior, on March 1, 2017 respondent made a written
complaint about Ms. Vroman to chief clerk Singer.
10.

Ms. Singer replied to respondent by letter dated March 10, 2017. She

investigated respondent's complaints about Ms. Vroman and determined that they were
largely unfounded. Ms. Singer considered respondent's complaint against Ms. Vroman to
4

 be retaliatory because of the timing of his letter and because a majority of respondent's
complaints regarding Ms. Vroman had no merit.
11.

During the hearing before the referee, respondent read a statement in which

he stated that he was "troubled and sorry that Ms. Vroman is still upset" about the incident.
12.

Ms. Vroman testified that respondent never apologized to her for his conduct.

13.

In May 2017 and again in June 2017, respondent made inappropriate

comments to Ms. Singer, then the chief clerk of the Broome County Family Court.
14.

Ms. Singer described a comment respondent made to her after a court

luncheon in May 2017 where employees brought dishes to share as follows:
After the luncheon, the judge stopped in my office to say he
really liked the dish that I made and he said, "If I knew you
could also cook, I would have gone for the widow." I happen
to be a widow.
When respondent made this unwelcome remark to her, Ms. Singer was "surprised, shocked,
and disgusted." She testified that she "diverted by talking about the recipe that I had made."
Ms. Singer did not find respondent's comment humorous.
15.

In early June, respondent was in Ms. Singer's office and she began to use a

fan because she was having a hot flash. Ms. Singer testified that, as she usually did when
someone was in her office and she had a hot flash, she apologized to respondent and
explained that she was having a hot flash. After Ms. Singer mentioned the hot flash to
respondent, he replied, "It's nice to know I still have that effect on you."

5

 16.

Also in June 2017, respondent made another inappropriate remark to Ms.

Singer, this time about her appearance. Ms. Singer described respondent's comment as
follows:
I was standing in the middle of my office doing something,
my door was open, he walked by, he-- Judge Miller walked
by, he stopped--he stepped in and said to me, "You look really
hot in that outfit. You should always wear that outfit."
Ms. Singer was again "shocked and disgusted" by respondent's unwelcome comments.
17.

In July 2017, respondent was transferred out of the Broome County Family

18.

When asked during the hearing before the referee whether he made these

Court.

comments to Ms. Singer, respondent initially denied making them. Later in the hearing,
respondent read a statement in which he stated,
I am troubled that Ms. Singer believes that I made demeaning
comments to her. I do not have any specific memory of the
comments. All she or Ms. Vroman or anyone for that matter
had to say was, "Judge, I'm uncomfortable with your manner
or the statement you made." I can assure you that I would have
apologized and changed my behavior. It does me no good to
have my co-workers dislike me.
As to Charge II of the Formal Written Complaint:
19.

When respondent became a Family Court judge, he appointed Rachelle

Gallagher, who had worked for him since 2005, as his court secretary.
20.

Respondent admitted that on November 6, 2015, while in her office at the

Broome County Family Court, Ms. Gallagher typed a letter for him to Thomas Hayes, the
executor of an estate that respondent had worked on prior to becoming a full-time judge.
6

 According to respondent, at lunch on November 6, 2015, he had picked up mail that
included checks for work performed on Estate ofRoger L. Funk. Respondent testified that
at the end of that day he noticed that the checks were unsigned.
21.

Respondent knew that his former law office secretary, Donna Filip, was out

of town on November 6, 2015 when he realized that the checks issued by Mr. Hayes were
unsigned. According to respondent, after he stated that the checks were unsigned and
needed to go back to the executor for signature, Ms. Gallagher offered to type a letter.
22.

The letter Ms. Gallagher prepared was written as if it were from Ms. Filip,

respondent's former law office secretary. The letter indicated that checks 102 through 104
were received but were unsigned. The letter Ms. Gallagher prepared requested that the
enclosed checks be signed and returned to Ms. Filip. Respondent testified that after Ms.
Gallagher typed the letter at the courthouse, he took the letter back to his former law office.
According to respondent, a letter to Mr. Hayes was sent from that office.
23.

Respondent admitted that it was improper for Ms. Gallagher to have prepared

the November 6, 2015 letter to Mr. Hayes.
As to Charge III of the Formal Written Complaint:
The charge is not sustained and is therefore dismissed.
As to Charge IV of the Formal Written Complaint:
24.

In 2015, respondent received a total of $27,388 for legal work he had

performed prior to becoming a full-time judge. This amount included $16,203.48

7

 respondent was paid in connection with his work on Estate of Deborah Brigham and
$11,184.60 respondent was paid for work on Estate ofRoger L. Funk. 1
25.

Respondent had an interest in two properties, one on North Street and the

other on Oakdale Road, and received rental income from both properties. The tenant for
the North Street property issued a $500 rent check each month payable to respondent.
Respondent cashed the checks. For the Oakdale Road property, respondent received
$800 per month.
26.

In 2015, respondent received a total of $7,400 in rental income from the

two properties. In 2016 and again in 201 7, each year respondent received a total of
$15,600 in rental income from the two properties.
27.

In 2015, respondent's total extra-judicial income was $34,788 from rent

and legal fees from his prior law practice. In 2016 and again in 2017, respondent's total
extra-judicial income each year was $15,600 in rental income.
Annual Reports to Clerk of the Broome County Family Court
28.

Respondent acknowledged that he did not file any report with the Broome

County Family Court clerk disclosing extra-judicial income for the years 2015, 2016 and
2017. Such reports are required pursuant to Section 100.4(H)(2) of the Rules Governing
Judicial Conduct ("Rules"). Respondent testified he was unaware of the requirement in
the Rules.

Two of the three checks for work on Estate of Deborah Brigham were dated November 24, 2015.
The checks related to respondent's work on Estate of Roger L. Funk were dated December 1, 2015.

8

 29.

By email dated April 13, 2016, all judges in the 61h Judicial District were

reminded of the filing requirements in the Rule. Respondent testified that he did not see
this email at the time.
30.

Former chief clerk Singer testified that Broome County Family Court judges

were required to file an annual report of extra-judicial income with her. From January
2015, when respondent became a Family Court judge, through Ms. Singer's retirement in
June 2018, she did not receive any such reports from respondent. She did receive reports
of extra-judicial income from the other Broome County Family Court judges.
31.

During his investigative appearance on November 28, 2017, respondent

testified that he was unaware of the provision in the Rules which required that he file an
annual report of extra-judicial income with the clerk of the court.
32.

On May 7, 2018, the Commission sent respondent an inquiry letter in which

he was asked about his financial disclosures. This letter quoted Section 100.4(H)(2) of the
Rules which requires judges to file an annual report with the clerk of the court reporting
extra-judicial income.
33.

On May 30, 2018, respondent's attorney sent a letter in response to the

Commission's May 7 inquiry letter which stated that respondent became aware of the filing
requirement with the Broome County Family court clerk "in the course of this
investigation." On May 30, 2018, respondent indicated that he read and adopted the
contents of this letter.
34.

Eight months later, on January 31, 2019, after the first five days of the

hearing before the referee in this matter, respondent filed a report of his extra-judicial
9

 income for the years 2015 through 2018 with the Broome County Family Court clerk.
His report included income from the practice of law and rental income. Respondent
introduced a copy of this report on the last day of the hearing before the referee on
February 12, 2019.

Respondent testified that this filing was made after a fellow judge

sent a reminder to all 6th Judicial District Family Court judges on January 11, 2019 about
the requirement to file such an annual statement.
2015 and 2016 Federal and New York State Tax Returns
35.

Respondent did not accurately disclose all his income on his 2015 and 2016

federal and New York state income tax returns. For 2015, respondent failed to include on
his federal and state tax returns $27,388 in income he received from the practice of law,
which he had earned before becoming a full-time judge.
36.

In addition, for both 2015 and 2016, respondent failed to include the rental

income from the two properties on his tax returns. With respect to the Oakdale Road
property, on his original tax returns, respondent claimed expenses for the property but no
mcome. He did not include any reference to the North Street property on his original
returns.
37.

Respondent amended his 2015 and 2016 federal and New York state income

tax returns. He filed the amended returns on or about August 2, 2017.
38.

Respondent included as income the $27,388 that he received for his prior

legal work on his amended 2015 tax returns.
federal and state taxes for that year.

10

As a result, respondent owed additional

 39.

Respondent included his rental income on his amended 2015 and 2016 tax

returns. According to respondent's accountant, respondent's failure to include his rental
income on his 2015 and 2016 returns did not increase his tax liability because there were
off-setting expenses associated with respondent's rental properties.
2015 UCS Ethics Commission Financial Disclosure Form
40.

Respondent, who was a part-time judge in 2014, included income from the

practice of law on his 2014 UCS Ethics Commission Financial Disclosure Form ("FDF")
which was filed in May 2015.
41.

On his 2015 FDF, respondent failed to include his income from legal work.

Respondent's 2015 FDF was filed on May 13, 2016. He did not include the $27,388 in
legal fees he received for work he performed prior to becoming a full-time judge.
42.

On or about November 16, 2017, shortly before his investigative appearance,

respondent filed an amended 2015 FDF which included the income he had received from
his former law practice.
43.

During his November 28, 2017 investigative appearance, when questioned

about whether he reported as income on his FDF the compensation he had received for
work on Estate ofRoger L. Funk, respondent testified, "I listed the bank accounts and they
were deposited into a bank account." He made a similar statement when asked about the
income he received for work on Estate ofDeborah Brigham when he testified, "I disclosed
it as being in the bank accounts, but I didn't specifically insert a line as to income .... "
44.

During his investigative appearance, respondent testified that he had

amended his 2015 FDF to include the payments from work on both estates as income.
11

 45.

At the hearing before the referee, respondent testified that when he filed his

2015 FDF, he thought that he had cashed the Estate ofRoger L. Funk and Estate ofDeborah
Brigham checks in 2016 which would have made them reportable on his 2016 FDF.

46.

Respondent did not include the income from his prior law practice on his

2016 FDF which was filed on May 10, 2017.
47.

Respondent was previously censured by the Commission. In 2002, an eight-

day hearing was held before a referee on four charges against respondent. Shortly after the
referee issued a report, the Administrator and respondent entered into a Stipulation
agreeing that the Commission should issue its decision based upon the referee's findings
and jointly recommending that respondent be censured. The Commission's determination
found that each of the four charges, which were based on respondent's misconduct
involving thirteen cases, were proved. On December 30, 2002, the Commission issued a
determination finding that respondent should be censured.
48.

On November 16, 2015, the Commission issued a letter of dismissal and

caution to respondent based upon his use of misleading campaign materials.
Upon the foregoing findings of fact, the Commission concludes as a matter of law
that respondent violated Sections 100.1, I00.2(A), I00.2(C), 100.3(B)(3), 100.3(C)(l),
100.4(1), and 100.4(H)(2) of the Rules Governing Judicial Conduct and should be
disciplined for cause, pursuant to Article 6, Section 22, subdivision a, of the New York
State Constitution and Section 44, subdivision 1, of the Judiciary Law. Charges I, II and
IV of the Formal Written Complaint are sustained insofar as they are consistent with the
above findings and conclusions and respondent's misconduct is established.
12

 All judges are required to act in a manner to preserve the integrity of the judiciary.
(Rules § 100.1) The Rules require judges to "be patient, dignified and courteous to
litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official
capacity .... " (Rules §100.3(B)(3)) In his interactions with two female court employees
at the courthouse, respondent failed to meet this high standard. After a courthouse
luncheon in May 2017, respondent stopped in the chief clerk's office, told Ms. Singer
that he liked the dish she had prepared and stated, "If I knew you could also cook, I
would have gone for the widow." Ms. Singer is a widow. The following month, when
Ms. Singer apologized for using a fan while having a hot flash, respondent stated, "It's
nice to know I still have that effect on you." That same month, respondent again stepped
into Ms. Singer's office and made the extremely inappropriate and sexist remarks: "You
look really hot in that outfit. You should always wear that outfit." Such sexist comments
by a judge to a court employee are shocking and unacceptable. Indeed, Ms. Singer
testified that she was "disgusted" by respondent's offensive commentary about her
appearance and by his statement that he would have "gone for" her if he had known that
she was a good cook. In addition to his highly inappropriate comments to the chief clerk,
respondent also berated and demeaned a female court assistant. Respondent's conduct
was improper and violated his ethical responsibilities.
Compounding his misconduct, respondent appears to be under the
misapprehension that the women he denigrated and to whom he made the sexist

13

 comments had an obligation to tell him that they did not approve of his comments. 2 To
the contrary, it was incumbent upon respondent to not make sexist comments to a court
employee. Similarly, it was also his responsibility to avoid behaving discourteously
toward court employees. Twenty years ago, the Commission held that, "[r]emarks of a
personal and sexual nature to a subordinate are especially egregious, even if the woman
does not protest and even if the judge makes no explicit threats concerning job security."

Matter ofDye, 1999 NYSCJC Annual Report 93, 94 (citation omitted). In 1985, the
Commission held that,
The cajoling of women about their appearance or their
temperament has come to signify· differential treatment on the
basis of sex. A sensitized and enlightened society has come
to realize that such treatment is irrational and unjust and has
abandoned the teasing once tolerated and now considered
demeaning and offensive. Comments such as those of
respondent are no longer considered complimentary or
amusing, especially in a professional setting.

Matter ofDoolittle, 1986 NYSCJC Annual Report 87, 88.
As an experienced lawyer as well as an experienced jurist, respondent should have
been cognizant that stepping into Ms. Singer's office to declare his opinions that she
looked "really hot" and "should always wear that outfit" was improper and that such
sexually charged remarks have no place in a courthouse. It should also have been clear to
respondent that such observations by a judge to a court employee were especially

2

Respondent testified during the hearing before the referee, "All [Ms. Singer] or Ms. Vroman or
anyone for that matter had to say was, 'Judge I'm uncomfortable with your manner or the statement you
made.' I can assure you that I would have apologized and changed my behavior." In addition to
minimizing his responsibility for his own conduct, respondent's testimony was also inaccurate since after
Ms. Vroman complained about his behavior, respondent's response was not to apologize, but to file a
complaint against Ms. Vroman.

14

 inappropriate given the imbalance of power in their respective positions.
Section 100.2(C) of the Rules provides, "[a] judge shall not lend the prestige of
judicial office to advance the private interests of the judge or others .... " When he
allowed his court secretary to prepare a letter regarding unsigned checks for his prior
legal work, respondent violated this Rule. The letter Ms. Gallagher prepared was part of
respondent's effort to obtain payment for legal work that he had performed prior to
becoming a full-time judge. 3 The letter related to respondent's former private practice of
law and had nothing to do with the work of the Family Court. As such, it was
inappropriate for respondent to allow Ms. Gallagher to prepare this letter. See, Matter of
Ruhlmann, 2010 NYSCJC Annual Report 213,220 ("Routinely using court staff for
extra-judicial purposes is improper regardless of whether the employee consents or
performs such tasks without protest."); See, Matter ofBrigantti-Hughes, 2014 NYSCJC
Annual Report 78, 88 ("Tasks of a personal nature remain a judge's personal
responsibilities and should not be discharged using public resources.").
Section 100.3(C)(l) of the Rules provides: "[a] judge shall diligently discharge the
judge's administrative responsibilities without bias or prejudice and maintain professional
competence in judicial administration .... " Section 100.4(H)(2) of the Rules provides:
A full-time judge shall report the date, place and nature of
any activity for which the judge received compensation in
excess of $150, and the name of the payor and the amount of
compensation so received. . . . The judge's report shall be
made at least annually and shall be filed as a public document

This letter was written as if it were from respondent's former law firm secretary, not respondent,
which may have been designed to conceal respondent's involvement.

15

 in the office of the clerk of the court on which the judge
serves or other office designated by law.
Respondent failed to properly report his income from his extra-judicial activities thereby
violating the Rules.
For the years 2015, 2016 and 2017, respondent failed to file an annual report of his
extra-judicial income with the Broome County Family Court clerk as Section 100.4(H)(2)
of the Rules required. Respondent claimed that he was unaware that the Rules required
him to report his extra-judicial income to the clerk. It is well-settled that any such
ignorance is no excuse. "Ignorance and lack of competence do not excuse violations of
ethical standards. As a Judge, petitioner had an obligation to learn about and obey the
Rules Governing Judicial Conduct." Matter of VonderHeide, 72 N.Y. 2d 658,660 (1988)
(citation omitted); Matter ofEdwards, 2008 NYSCJC Annual Report 119, 121 (citations
omitted) (" ... every judge has an obligation to learn and abide by the Rules Governing
Judicial Conduct") Since respondent had been previously censured for violating the
Rules, he should have been fully familiar with the Rules and should have taken the
utmost care to abide by the Rules.
Moreover, respondent admitted that he learned of the annual filing requirement
with the clerk's office during the Commission's investigation. In November 2017,
respondent was questioned about his failure to make annual filings with the clerk's office.
By May 2018, he admitted in writing that he had learned of the filing requirement.
Nevertheless, respondent chose not to make any filing with the clerk's office until eight

16

 months later after the hearing before the referee had commenced. Such conduct was
emblematic of respondent's overall inattention to his ethical responsibilities.
With respect to his 2015 FDF, although respondent had included income from
legal fees on his 2014 FDF, respondent failed to report approximately $27,000 in legal
fees on his 2015 FDF. When asked about the omission, respondent gave varying
implausible reasons. Initially, respondent claimed that he had reported on the 2015 FDF
the bank accounts into which the checks for his legal fees were deposited. This claim
was nonsensical since the income was not specifically reported on the FDF as required.
Respondent testified at the hearing before the referee that when he filed his 2015 FDF in
May 2016, he thought that he had cashed the legal fee checks in 2016 which would have
made them reportable on his 2016 FDF. Demonstrating that this claim was also baseless,
when respondent filed his 2016 FDF in May 2017, he again did not report the legal fees. 4
The public has an interest in the timely disclosure of a judge's extra-judicial
income on both the annual report with the clerk's office and the FDF. As the Court of
Appeals has held, the information provided on a judge's financial disclosure form "is
available to the public and, among other things, enables lawyers and litigants to
determine whether to request a judge's recusal." Matter ofAlessandro, 13 N.Y.3d 238,
249 (2009) Accordingly, "[j]udges must complete their financial disclosure forms with
diligence, making every effort to provide complete and accurate information." Id. Matter

ofDier, 1996 NYSCJC Annual Report 79 (failure to disclose income on a UCS Ethics

4

Shortly before his investigative appearance, in November 2017 respondent filed an amended
2015 FDF which disclosed the legal fees.

17

 Commission financial disclosure statement was misconduct); Matter of Russell, 2001
NYSCJC Annual Report 121, 122 ("financial disclosure by judges serves an important
public function" and repeatedly filing untimely FDFs with the UCS Ethics Commission
constituted misconduct); Matter of McAndrews, 2014 NYSCJC Annual Report 157, 162
(respondent's failure to file timely FDFs with the UCS Ethics Commission "is
inconsistent with his ethical obligation to diligently discharge his administrative duties.").

It is also undisputed that respondent failed to disclose his income from the practice
of law and rental income from two properties on his federal and state income tax returns. 5
Respondent's failure to include his income from the practice of law on his 2015 income
tax returns diminished his taxable income for that year. Such conduct is improper and
violated the Rules. Matter of Ramich, 2003 NYSCJC Annual Report 154, 159 ( failure to
include income on tax return and failure to report such income to the chief court clerk
was misconduct).
Respondent, who took the bench in 1996, is an experienced judge who should be
fully familiar with the Rules. The Commission's 2002 determination censuring
respondent found that he had violated several Rules in his conduct involving thirteen
different cases. Matter of Miller, 2003 NYSCJC Annual Report 140. For example, the
Commission found that respondent presided "over one case in which he had an attorneyclient relationship with the defendant and another case in which the defendant was the
spouse of a client. ... " Id. at 141. The Commission also found that in one matter,

5

In August 2017, respondent filed amended tax returns which included the income from the
practice of law and the rental income.

18

 "[r]espondent's conduct ... was especially egregious: by vacating a default judgment
against his client's spouse based solely on his client's ex parte, unswom communication,
respondent created an appearance of partiality and favoritism." Id. In 2002, the
Commission found, "[i]n its totality, respondent's conduct showed insensitivity and
inattention to his ethical responsibilities and, in particular, to the special ethical
obligations of judges who are permitted to practice law." Id. at 142. Based upon
respondent's misconduct, in 2002 the Commission imposed a censure, the strongest
available discipline short of removal. In 2015, respondent received a letter of Dismissal
and Caution in which the Commission cautioned him to adhere to the Rules.
Given his prior experiences with the Commission, respondent should have been
particularly attentive to his ethical responsibilities. Instead, the evidence here
demonstrated that respondent again disregarded his ethical obligations and engaged in
three separate types of misconduct. The most serious was respondent's pattern of sexual
comments to a court employee including telling her that she looked "really hot" and
"should always wear that outfit." Earlier, respondent told the same court employee, a
widow, that ifhe had known she could cook he "would have gone for the widow." He
also commented that, "It's nice to know I still have that effect on you" after she
apologized for using a fan while having a hot flash. No woman should be treated in that
manner, especially in a courthouse by a judge. Understandably, the court employee was
shocked and disgusted by respondent's sexual comments to her. In a further example of
respondent's discourteous behavior, he berated and demeaned another female court
employee. In addition, respondent violated the Rules when he acted to further his
19

 personal interests by having his court secretary write a personal letter as if it were from
his former law firm secretary.
Respondent engaged in a third category of misconduct when he failed to disclose
his extra-judicial income in several ways. He failed to file annual disclosures with the
clerk of the Broome County Family Court as Section 100.4(H)(2) of the Rules required.
He failed to disclose extra-judicial income on his 2015 Financial Disclosure Form filed
with the UCS Ethics Commission even though he had included such income on the FDF
he had filed the previous year. In addition, he failed to properly report his income on his
federal and state income tax returns which reduced his taxable income for 2015.
Respondent engaged in a pattern of placing his personal interests before his ethical
obligations to comply with the Rules and his responsibilities as a judge.
In addition to the several ways in which respondent violated his ethical
obligations, the evidence also showed that respondent has not taken responsibility for his
actions. As noted above, when he became aware of Ms. Vroman's complaint about his
discourteous behavior, respondent's response was to file a written complaint against her.
The Broome County Family Court chief clerk, to whom respondent's complaint about
Ms. Vroman was made, viewed respondent's complaint as retaliatory. Furthermore, once
respondent indisputably knew of the Rule which mandated that he file an annual report of
extra-judicial income with the court clerk, he did not immediately file his reports for the
years in question. Instead, he waited eight months and only filed the reports after the
hearing before the referee had begun. In addition, when questioned regarding why he

20

 failed to include his income from legal fees on his 2015 FDF, respondent gave shifting
and implausible reasons for his failure.
While there was some indication in the record that respondent is an effective
judge, our mandate is to protect the integrity of the courts. It is not to evaluate the
effectiveness of a judge. In addition to other serious misconduct, respondent made
highly inappropriate sexist comments to a female court employee. Under these
circumstances, if respondent were to be censured again and allowed to remain on the
bench, we believe public confidence in the courts and the judicial disciplinary process
would be undermined. This is particularly true of the litigants and attorneys who would
appear before respondent in Broome County Family Court "where matters of the utmost
sensitivity are often litigated .... " See, Matter ofEsworthy, 77 N.Y.2d 280,283 (1991).
Given respondent's three categories of current misconduct, his apparent failure to
learn from his previous discipline, his failure to take responsibility for his actions and the
unfortunate message another censure would send to the public, we believe that
respondent should be removed from the bench to protect the integrity of the courts. We
are mindful that "removal, the ultimate sanction, should not be imposed for misconduct
that amounts simply to poor judgment or even extremely poor judgment, but should be
reserved for truly egregious circumstances." Matter of Mazzei, 81 N.Y.2d 568, 572
( 1993) (citations omitted) Here, through his pattern of conduct, respondent violated the
Rules in numerous ways which exhibited his continued disregard for the Rules and his
obligations as a judge. Most troubling were respondent's unwanted sexual comments to a
female court employee. Respondent's inappropriate sexual comments shocked and
21

 disgusted the court employee. He also berated and demeaned another female court
employee. He had his court secretary prepare a letter in order to serve his personal
interests. He failed to publicly disclose income from his legal work and rental income on
the financial reports he was required to complete as a judge which deprived the public of
information to which it was entitled. He also failed to report income on his federal and
state income tax returns. Respondent's current inattention to his ethical obligations
coupled with his prior censure for violating the Rules, has compelled us to conclude that
removal from the bench is the appropriate sanction for his misconduct.
Our colleagues dissent on the issue of sanction in part because they seem to credit
the referee's finding that respondent may have intended the comments to the chief clerk
to be humorous. We find it implausible that respondent - a longtime judge with prior
run-ins with this Commission, a family man by his own account, a coach and volunteer would think telling his chief clerk that she was "really hot" and "should always wear that
outfit" was humorous. Nor is it appropriate to state "It's nice to know I still have that
effect on you" when one is explaining the use of a fan in response to a momentary flash.
Indeed, we voted to remove respondent not only for the reasons previously stated, but
also because when he appeared before us respondent still seemed to not fully accept
responsibility for these comments. Obviously not every comment made about a clerk's
appearance would be misconduct and even if misconduct, a removable offense. But
these are particular statements using particular words that have particular meanings - and
in our view, warrant removal given the additional misconduct described above and
respondent's prior censure.

22

 The Court of Appeals has held that, "the purpose of judicial disciplinary
proceedings is 'not punishment but the imposition of sanctions where necessary to
safeguard the Bench from unfit incumbents'." Matter of Reeves, 63 N.Y.2d 105, 111
( 1984) (citations omitted) Respondent's actions demonstrated his disregard for his
ethical responsibilities and he is unfit for judicial office.
By reason of the foregoing, the Commission determines that the appropriate
disposition is removal.
Mr. Belluck, Ms. Comgold, Judge Falk, Ms. Grays, Judge Leach, Judge
Mazzarelli, and Ms. Yeboah concur.
Mr. Harding and Judge Miller dissent as to the sanction.
Judge Miller files an opinion concurring in part and dissenting in part which Mr.
Harding joins.
Mr. Raskin was not present.

CERTIFICATION
It is certified that the foregoing is the determination of the State Commission on

Judicial Conduct.

Dated: February 14, 2020

Clerk of the Commission
New York State
Commission on Judicial Conduct

23

 STATE OF NEW YORK
COMMISSION ON JUDICIAL CONDUCT

OPINION BY JUDGE
ROBERT J. MILLER
CONCURRING IN
PART AND
DISSENTING IN
PART, WHICH MR.
HARDING JOINS

In the Matter of the Proceeding
Pursuant to Section 44, subdivision 4,
of the Judiciary Law in Relation to
RICHARD H. MILLER, II,
a Judge of the Family Court,
Broome County.

I concur with the majority determination as to misconduct, but I must respectfully
dissent as to the sanction. Given the nature of respondent's misconduct, the sanction of
removal is contrary to the findings of the referee and contrary to long-established
precedent of the Commission. I believe censure is the appropriate sanction.
The primary focus of the charges against respondent, and the hearing before the
referee, relate to very serious allegations made by respondent's Court Attorney and Court
Secretary. 1 In support of those allegations, the Commission called the Court Attorney,
the Court Secretary, and two additional witnesses. Respondent testified on his own
behalf and called witnesses to testify about the allegations made against him. After
conducting a six-day hearing, the referee issued a report in which he found that both the

The allegations made by the Court Attorney and Court Secretary were found in portions of
Charges I, II and III of the complaint. These allegations included that respondent sexually harassed the
Court Secretary, threatened the Court Attorney and Court Secretary with physical harm, and asked them
to perfonn work unrelated to their official duties including prohibited political activity. The Court
Attorney also alleged during the hearing that respondent required him to attend the Donald Trump
inauguration in 20 I 7.

1

 Court Attorney and the Court Secretary lacked credibility. He also concluded that they
each had a motive for lying about these matters due to a pending lawsuit they had brought
against the Unified Court System. The referee further found that their troubling
allegations against respondent were not proved. In the presentation before the
Commission, counsel for the Commission did not seek to overturn the referee's
credibility findings regarding the Court Attorney and Court Secretary, or the finding that
their allegations were not established. I believe that the serious allegations these
individuals made which were not proved cast a pall over the entire proceeding against
respondent. Accordingly, in my view, it is critical to focus solely on those acts of
misconduct that were established by the evidence. The appropriate sanction for the
proven misconduct is censure.
I concur with the majority's finding that respondent engaged in three categories of
misconduct. The first involved one instance of respondent asking his Court Secretary to
write a single page letter in a matter unrelated to the business of the Family Court. Such
misconduct would normally result in a private letter of caution or admonition.
The second category of misconduct included respondent's crude and vulgar
remarks to the Chief Clerk and one instance of respondent being discourteous to a court
assistant. The referee found that, while respondent's statements to the Chief Clerk were
improper, "I accept and credit Respondent's testimony that he had no intent to harm
anyone with comments that may well have been intended to be humorous .... " The
record supports the referee's conclusion that respondent's inappropriate statements to the
Chief Clerk constituted an extremely poor attempt at humor. Although such remarks
2

 must not be condoned or tolerated, Commission precedent demonstrates that censure or
admonition have been held to be appropriate punishments for significantly worse
conduct. See, e.g. Matter of Caplicki, Jr., 2008 NYSCJC Annual Report 103 (after a
prior censure, judge was censured for repeating statements a defendant made about his
attorney's appearance including that she was "cute" and had a "nice butt", asking other
defendants whether they agreed with the remarks and recounting the statements to other
attorneys); Matter ofDye, 1999 NYSCJC Annual Report 93 (judge censured for
numerous inappropriate comments to his secretary including, "that she had attractive
legs; ... that her clothes inspired his sexual feelings; ... that he had a strong interest in
sex and that he wanted to have sex with her"); Matter of Doolittle, 1986 NYSCJC
Annual Report 87 (judge admonished for making "numerous improper comments to
female attorneys, referring to their appearance and physical attributes.")
The third category of respondent's misconduct was his failure to file annual
financial disclosure reports with the clerk's office, and his failure to properly report
certain income on his Financial Disclosure Form ("FDF") filed with the Ethics
Commission for the Unified Court System and on his federal and state income tax
returns. Respondent, who admitted that he did not file the annual reports with the clerk's
office, filed them before the conclusion of the hearing before the referee. He filed
amended federal and state tax returns and an amended FDF prior to the date of his
investigative appearance and the issuance of the complaint in this matter. The referee
found the timing of respondent's amendments to be a mitigating factor.

3

 Although this is not the respondent's first matter before this Commission, his prior
censure occurred 18 years ago in 2002. The misconduct found in that case was unrelated
to the type of conduct at issue here. In 2015, respondent received a letter of dismissal
and caution related to an issue with his campaign advertising. If respondent's current
misconduct had been similar, then removal might be an appropriate punishment as it
would reveal a continuing course of conduct. However, neither of his prior matters with
the Commission indicate that removal is appropriate for respondent's current
wrongdoing.
Respondent, who has been a judge since 1996, was elected to the Family Court in
2014 for a term ending in 2024. The evidence before the Commission supports the
conclusion that he is a hardworking judge. In addition, witnesses testified at the hearing
before the referee that respondent treated all who appeared before him, both men and
women, with respect. The referee's finding regarding respondent's intent is significant,
and casts further doubt on the majority's decision to depart from this Commission's past
precedent.
Based upon the foregoing, I believe that the draconian sanction of removal of an
elected judge is not warranted in this case. I believe censure is appropriate for the
established misconduct.
February 14, 2020

N/

fwl!l . ~

The Honorale Robert J. Miller, Member
New York State
Commission on Judicial Conduct

4