(This story by Bob Audette was first published in the Brattleboro Reformer on April 24, 2017.)
[B]RATTLEBORO — The Vermont Judicial Conduct Board has officially reprimanded a former assistant judge for violating professional codes of judicial conduct.
In addition, Paul Kane has been “immediately and indefinitely suspended from the office of assistant judge and shall be prohibited from holding any judicial office in the State of Vermont in the future,” according to the decision issued on Monday.
“[T]he Board considers the permanent prohibition on holding judicial office appropriate due to the severity of Mr. Kane’s conduct, the fact that these violations continued throughout his tenure as assistant judge, his refusal to take responsibility for his actions in his testimony before the Board, and his multiple instances of providing demonstrably false testimony to the Board at the hearing,” wrote Steven Adler on behalf of the members of the Judicial Conduct Board.
Kane was elected to a position of an assistant judge in Windham County in 2014, but the conduct he was publicly reprimanded for began in 2010, when he received a Power of Attorney from Katherine “Kay” Tolaro and was designated in her will as a beneficiary of her estate.
Monday’s decision was the culmination of an investigation that began on Feb. 22, 2016, into Kane’s “improper conduct” regarding the assets of Tolaro, his uncle’s wife. The investigation was conducted by Ian Carleton and turned over to the Judicial Conduct Board, which conducted a hearing in late March in Rutland.
According to the decision, Kane violated a number of canons of judicial conduct, including “collecting and depositing into his personal bank account certain payments on loans that were made with Ms. Tolaro’s money …” In addition, wrote Adler, the Judicial Conduct Board took evidence on Kane’s management of the loans, including his granting of forgiveness, “even though he did not have legal authority to do so.” Adler also wrote that Kane failed “to provide entirely truthful testimony at a court hearing …” about the $73,000 in loans.
“The Board does not find this claim to be credible because he consistently represented to everyone that the loans were made from his personal funds,” wrote Adler. Kane also claimed he sent a letter to the current administrator stating that he “misspoke” when he claimed the loans came from his own funds. However, wrote Adler, the administrator “credibly testified that she had never received the letter. The court finds this letter was never sent …”
In addition to receiving a check for $60,000 from Tolaro, Kane also purchased two annuities totaling $267,000, naming himself and his wife as sole beneficiaries. “He testified that he always understood … that the money was Ms. Tolaro’s and would go to her estate after she died,” wrote Adler. “Yet, despite this testimony, Kane did not turn over the assets from the annuity when requested … until ordered to do so by the Probate Court.”
In 2010, Tolaro’s estate was approximately $767,500. By 2014, the estate was depleted of most, if not all, of its funds. However, efforts by the current administrator and legal counsel for beneficiaries of the estate helped to “claw back” approximately $233,000. In addition the estate is benefiting rental property income.
Kane also filed “a facially implausible claim against Ms. Tolaro’s estate …” when he asked for reimbursement for his care of Tolaro and upkeep of her house in Bellows Falls. In July of 2015, Kane submitted a claim against the estate for more than $833,000, the vast majority of which was for the 159 hours a week — at $18 an hour — he and wife allegedly cared for Tolaro before sending her to an assisted living facility in Ascutney.
Kane had also asked the Probate Court that Tolaro’s Pleasant Street house be turned over to him. That request was denied in October 2016.
“(T)he Board finds that the claims for the 24/7 care provided were facially implausible,” wrote Adler. Not only was Kane working full time while allegedly providing care, three emails from Kane presented during the hearing state his wife was the sole person providing the care.
Finally, wrote Adler, Kane allegedly violated professional canons through his continued use of funds in Tolaro’s estate after she died in 2014, “to pay for the expenses of her Pleasant Street property, which he stood to inherit, until the estate administrator was compelled to seek an order … to turn over the funds and management” because Kane had refused to do so after a prior request.
Kane “intentionally misled” the administrators of the estate about the loans he gave to his two friends, the annuities he had purchased, and the fact he was using estate funds for expenses and repairs to the home, wrote Adler, and intentionally filed an implausible claim for reimbursement for care he and his wife gave to Tolaro, even for care after his wife had died.
To find that Kane had violated the Code of Judicial Conduct, the Board had to find that Kane’s conduct “was intentional, not merely a mistake. … In finding a violation of the Code, it is unnecessary to determine if the judge acted with bad faith or evil intent.”
“Mr. Kane failed to meet the high standard of integrity expected of judges and did not ensure public confidence in the Judiciary,” wrote Adler. Kane “did not avoid impropriety in all of his activities” and did not act in a manner that builds confidence in the judiciary, wrote Adler. He also did not conduct his extra-judicial activities “in such a way to avoid demeaning his judicial office …” He also did not maintain “the dignity appropriate to a holder of judicial office and act in a manner consistent with the integrity of the Judiciary …” wrote Adler.
Although Kane had sent an email to the media in February that he had resigned from his position as an assistant judge so as not “to taint the Judiciary with the perception he had been engaged in wrongdoing.” However, noted Adler, Kane’s explanation for why he resigned “demonstrates a failure to take responsibility for his conduct.” And because the Board could not find that he had actually submitted his resignation, he was officially suspended.
Kane has the option of appealing Monday’s ruling to the Vermont Supreme Court.
