His 'Crime' Results in a Gain for the Public : Whistle-blower: State employees who report misconduct should not do so at risk of being fired.

Ruth Rosen, a professor of history at UC Davis, writes regularly on political culture

Do state employees owe greater allegiance to a corrupt public agency than to the people of California, whom they actually serve?

If so, that is why John Plotz, a veteran attorney for the California Commission on Judicial Performance, is locked out of his office and threatened with termination. His "crime" is that he criticized the commission to a friend, thereby instigating legislation that would hold California judges accountable to judicial ethics.

As a result, California's courts will be more just. But justice also demands that Plotz be reinstated.

The Commission on Judicial Performance, a little-known state agency, is mandated by the California Constitution to expose judicial misconduct and to remove corrupt, dishonest and grossly incompetent judges. Unfortunately, the commission in recent years has failed dismally.

As one of several investigators, Plotz was positioned to observe the commission's leniency toward judicial misconduct and incompetence. Some of the cases he witnessed included receipt of gifts from lawyers and litigants appearing before a judge, sexual harassment of court employees, destruction of evidence, arbitrary jailings of lawyers or litigants and gross abuse of ordinary citizens.

Plotz's observations have been substantiated by others. Prof. Stephen Barnett of the UC Berkeley's Boalt Hall School of Law, an expert on the state's judicial system, has said that the commission's "name should be changed to the 'Commission for Judicial Protection.' " A three-month investigation by the San Francisco Chronicle recently disclosed that the panel has not voted to publicly censure or remove a single judge since 1988. Yet during the nine previous years, 19 judges were censured or removed from office.

California trails the nation in disciplining wayward judges. Since 1980, the commission has removed less than half the national average. (It would be naive to assume that California judges differ that much from their peers.) Gerald Stern, the head of New York's counterpart commission, notes that "At our annual national meetings, we mock our California colleagues . . . . I don't understand how their commission can let some of those cases go as private admonishments."

Without disclosing any confidential information, Plotz discussed his concerns with a friend, Peter G. Keane, chief attorney of the San Francisco public defender's office and a member of the State Bar board of governors. Keane then wrote an article in which he recommended three substantive reforms: open disciplinary hearings of judges, add more non-judges to the panel and give the commission the authority to make its own rules.

The Legislature agreed with these reforms. Sen. Alfred Alquist (D-San Jose) introduced the most comprehensive measure, which has now passed committees in both the Assembly and Senate.

But what of John Plotz?

For his efforts, Plotz--whose file reveals a six-year unblemished, exemplary record--was subjected to a disciplinary interrogation. The commission's position is that its employees have no right to criticize the agency outside the agency. Commission Director Victoria Henley threatened to fire Plotz if he did not reveal the substance of all his conversations with Keane. (Astonishingly, she cited McCarthy-era cases in which teachers were forced to disclose whether they had been members of the Communist Party.) Plotz received a disciplinary reprimand. Unwilling to be quietly fired, he informed the Legislature of the reprimand. Henley then placed him on indefinite "administrative leave."

Ostensibly, the charge against Plotz is that he has violated the attorney-client privilege by informing the Legislature of his reprimand. This is a preposterous charge, for who was the client? Having betrayed no confidential information, Plotz rightfully claims his legal right to freedom of speech, as well as his moral obligation to protect the people of California from judicial misconduct.

This case may create an important precedent for state employees. If, as a public employee, I observe gross corruption and misconduct within my institution, do I owe allegiance to corrupt superiors or to the people of California who pay my salary?

The answer is clear. John Plotz should be honored, not punished. With integrity and courage, he has tried to ensure that justice is more than just a seven-letter word. And he has succeeded.

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