ELYRIA — Several of the annual financial disclosure statements filed by Lorain County Common Pleas Judge James Burge had missing or incorrect information about his family’s connections to Whiteacre North Ltd.
The company owns 600 Broadway, a Lorain office building in which several attorneys who practice in front of Burge have offices.
Burge conceded Thursday that several of the forms, which every judge in the state is required to file with the Ohio Supreme Court’s Board of Commissioners on Grievances and Discipline, contained inaccurate information.
He said the errors were inadvertent.
“A failure to list those would have been a mistake,” Burge said. “The filings should be amended.”
Rick Dove, secretary for the Supreme Court’s grievance board, said he couldn’t discuss Burge’s filings in particular, but in general incorrect or incomplete information on financial disclosure forms can form the basis of misdemeanor criminal charges and professional ethics violations.
Dove said the documents serve an important role in upholding the public’s faith in the judiciary.
“The purpose of disclosure statements is to indicate potential conflicts of interest,” he said.
Although officials sometimes file amended reports when they learn about errors, doing so doesn’t absolve them from potentially facing criminal or ethical sanctions, Dove said.
Burge is already the target of an ongoing criminal investigation being conducted by Ohio Attorney General Mike DeWine’s office and the Ohio Bureau of Criminal Investigation. That probe appears to center on the judge’s finances, including his ties to Whiteacre North.
Burge said Thursday investigators are likely scrutinizing his disclosure paperwork.
A review of Burge’s financial disclosure forms by The Chronicle-Telegram showed the judge included Whiteacre North in his filings for the years between 2006 and 2009. The reports for the years 2010 through 2012 contain no mention of the company.
Whiteacre North reappears again in Burge’s 2013 report, which was filed earlier this year. In that report, Burge listed Whiteacre North under the names of businesses owned or operated by himself or the immediate members of his household. The private legal practice run by Burge’s wife, attorney Susan Burge, is listed in the same category.
Burge said while he should have included Whiteacre North in the 2011 and 2012 reports, he incorrectly listed the company in the 2008 and 2009 reports because at the time Whiteacre North was owned by attorney Shimane Smith and his wife, Azuree Smith.
He said he rightly didn’t include Whiteacre North in the 2010 report because that year the company was under the control of the Smiths.
The judge, his wife and their business partner, attorney Michael Tully, reached an agreement to sell Whiteacre North to the Smiths for $70,000 in January 2007, just after Burge became a judge. The Smiths also were supposed to pay off the remainder of the roughly $250,000 mortgage on the building under the terms of the deal.
Court records indicate the Smiths defaulted on the purchase in February 2011 and ownership reverted to the Burges and Tully.
Burge has routinely listed either Shimane Smith or both Smiths as debtors in every report he’s filed except for the filings he made for 2006 and 2008. The 2006 report wouldn’t have required the Smiths to be listed because the deal to buy Whiteacre North didn’t take place until the following year, but Burge said he should have included the Smiths as debtors in his 2008 filing.
Burge and his wife purchased 600 Broadway in 1985, but the property was transferred to the newly-formed Whiteacre North in 1997. At the time of its founding, the partnership included Burge, his wife, Tully and attorney Sam Bradley, who each owned 25 percent of the business.
Bradley sold his portion of the company to Tully in 2001, and the Burges and Tully continued to run Whiteacre North until it was sold to the Smiths.
After control reverted to the Burges and Tully, Judge Burge sold his interest in Whiteacre North to his wife for $1 in June 2011 after learning that he still had a stake in the company.
Tully and Susan Burge now each control half of the company. They sued the Smiths in 2012 and received a court order requiring them to pay off the $70,000.
Although he sold his interest in Whiteacre North to his wife, Burge remains a guarantor on a $365,240 loan on the Broadway building issued in 1998.
County Prosecutor Dennis Will previously said the guarantee appears to give Burge a financial interest in the building, although the judge has denied that’s the case. He has said being a guarantor would only come into play if Whiteacre North defaults, an unlikely scenario in his opinion.
Dove said that while he couldn’t discuss the specifics of Burge’s reports, in general judges have a duty to fill out their forms completely and accurately.
Failing to do so can draw a misdemeanor criminal charge of falsification under Ohio law and disciplinary sanctions from the state’s high court, Dove said.
Burge said he doesn’t think he would be convicted of a crime because he didn’t deliberately report incorrect information and had no reason not to be accurate on his disclosure forms. The legal standard to obtain a conviction for filing a false statement requires someone to “knowingly” provide inaccurate information.
According to the Ohio Revised Code, “a person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist.”
Dove said that the ethics guidelines for judges and lawyers don’t contain the “knowingly” requirement, which could mean that even if there isn’t enough evidence to convict a judge, discipline is still a possibility.
In the past, Dove said, discipline for incorrect information on disclosure forms has resulted in sanctions ranging from a public reprimand to suspension for the lawyers involved. The punishment could be as severe as disbarment, he said.
Dove also said that just because a judge gave incorrect information in a financial disclosure report doesn’t automatically guarantee the judge would be prosecuted or disciplined. Even if a judge were charged with a crime, Dove said, a misdemeanor conviction isn’t automatic grounds for removing a judge from the bench.
Burge’s involvement with Whiteacre North has been under scrutiny at least since last year when the Supreme Court’s Office of Disciplinary Counsel opened an inquiry into whether he had improperly presided over cases involving attorneys in the building.
Burge has insisted there’s nothing improper with him hearing cases being handled by those lawyers because it is his wife, not him, who is involved with Whiteacre North. But Burge’s lawyer did concede there was a brief period in 2011 when the judge should have stepped back.
Attorney Brian Spiess wrote in an April 19, 2013, letter to a Disciplinary Counsel investigator that the judge did have an interest in the company between when the Smiths defaulted and when Burge transferred his interest in Whiteacre North to his wife.
Spiess wrote that the Burges and Tully didn’t think the company would revert to them until they took the issue to court, but learned in June 2011 the only issue they had to sue the Smiths over was payment. The company had automatically reverted to their control following the default.
“Judge Burge certainly presided over cases involving attorneys who rented space in the property between February 2011 and June 2011,” Spiess wrote. “He apologizes for this oversight and recognizes that he should have disqualified himself from any cases in which these attorneys appeared before him between February 2011 and June 2011.”
Spiess also included letters from several Broadway building lawyers who insisted they had received no preferential treatment from Burge.
Although Disciplinary Counsel inquiries are typically confidential, that office concluded that Burge’s release of another letter from Spiess in the Whiteacre North investigation during his unsuccessful attempt to fend off Will’s effort to remove him from a death penalty case earlier this year constituted a waiver of his right to keep the matter private.
Burge also has acknowledged that Disciplinary Counsel is looking into several other matters involving his time on the bench. No disciplinary charges have ever been filed against the judge, but Burge believes the allegations against him were leveled by Will or his staff.
Will has denied asking Disciplinary Counsel to investigate Burge, although he has said his office has cooperated with the investigation.
Will has acknowledged that he forwarded an allegation of criminal wrongdoing against Burge made by another judge, who has never been publicly identified, to DeWine’s office because he feared investigating Burge himself would create a conflict of interest.
A special grand jury has been convened by a visiting judge assigned by the Supreme Court, but Burge has not been charged with a crime.
Jill Del Greco, a DeWine spokeswoman, said Thursday she couldn’t comment on the ongoing investigation.
Burge and Will have sparred off and on for years, with their dispute reaching a head earlier this year when Will asked the other General Division judges to strip Burge of his post as administrative judge and bar him from hearing criminal cases.
When the other judges refused that request, Will asked Supreme Court Chief Justice Maureen O’Connor to remove Burge from all of the cases being handled by his office. Will accused Burge of intimidating and sexually harassing his prosecutors, using racially- and sexually-charged language and seeking to obtain a government job for Susan Burge.
Although O’Connor wrote in her decision that she found many of the allegations against the judge troubling, she concluded that Will had failed to prove that Burge was prejudiced against prosecutors and denied the request.