A Question of Ethics *


Over the years, I’ve had a number of court employees share their feelings about management. A recurring theme, often by those who have to clock in daily, has been resentment over performance evaluations by supervisors who do not perform the job of the person they are evaluating. Evaluations are not intended as judgments passed on an underling’s performance, and yet that is how most of us see them. Some have even become enraged perceiving that superiors lack the moral right to pass judgment. Often, they quote a familiar passage, “Just walk a mile in his shoes before you abuse, criticize and accuse.” Is there a resolution to this age-old conundrum?

The Scenario

Victoria Spenser couldn’t believe her performance review. The customer service section showed “needs improvement,” and the comment read, “Uses inappropriate language and provides too much information when dealing with customers. Vicky needs to maintain a more professional attitude when assisting the public.”

Victoria, a seven-year veteran court employee, prided herself on going the extra mile to help customers. The words “more professional attitude” burned. She got up from her desk and marched in to see her supervisor, Jess. Victoria and Jess already had a history. Victoria has been counseled before for using “street language” and not calling the translation service hotline. Spying the performance review in her hand, Jess (eyes still glued to her desktop) said, “Vicky, if you’re here to complain about your review, go see Mr. Overton.”

“It’s Victoria.”

Court administrator Tad Overton’s office, on the fifth floor of the courthouse, looks out on a lush city park. Having been hired a year ago from tech giant Globex, and promising to bring the court technologically into the 21st century, Tad was still figuring out his new job.

After being waved in by Overton’s administrative assistant, Victoria took a seat at one of the two chairs in front of Overton’s expansive desk. “I’m asking for a second review of my review,” Victoria blurted, immediately embarrassed by her poor word choice. With an expression halfway between a smile and a grimace, Tad responded, “I will certainly give your performance review a careful second review, Vicky, but I need to let you know that Jess and I have already chatted about your work.”

Victoria’s eyes dropped to a spot in the middle of Tad’s desk as she realized Jess had already warned Tad about her. Tad continued.

“First, I understand you did not pass the language certification. Now, I applaud the Spanish classes you must be taking and I encourage you to retake the certification exam in a couple of years when you’re more practiced. But for now, please understand, we cannot have you speaking Spanish to customers with your rudimentary level of proficiency. I need to let you know, if I review your performance, it is possible that you may not even fare as well as what Jess gave you. Second, you’ve been overheard giving out information and advice to litigants well beyond what is allowed by the court. Last, your coworkers have heard you using street Spanish interspersed with English and even some filthy language. I think the word ‘cabone’ was used, but . . .”

“Cabrón,” Victoria interrupted.

“Pardon me?” Tad asked.

“Cabrón. The word you’re attempting to pronounce is cabrón—not cabone. But don’t dwell on it Mr. Overton. It’s a common mistake.”

Tad mispronouncing the word flipped a switch in Victoria’s head. She no longer stared contritely at his desk, but met Tad’s eyes with her own steely stare. Victoria retorted.

“I do not take Spanish classes in school, Mr. Overton. I take management classes. As Spenser is my married name, you probably didn’t realize that Spanish has been spoken in my house since before I was born.

“But you are right, it isn’t the highbrow Spanish of TV anchors in Mexico City. It’s not the kind of Spanish that inane New Jersey company you hired uses to test us. It’s real, working-class Spanish. It’s what real people, people who have to come to our court, speak. Yes, sometimes I use salty language when helping customers.

“Since I am helping people who are in trouble, I try to help as much as I can. These people are losing their homes, losing their children, can’t pay their credit card bills, or maybe going to prison. Yes, I go right up to that line. If Jess thinks I stepped over that line, well I do not apologize. And, no, I don’t use that joke of a translation hotline since most times when I call, the hotline puts me on hold.

“And one last thing. Neither you nor Jess speak Spanish, Castilian, or street Spanish. You’ve never been down to see the customer counter. You don’t even know what I do or how I do it. My question is, what gives you the moral right, the ethical right, to judge me or how I work? You know what, Mr. Overton? I don’t think you do. I don’t think you have the right to judge my work.”

Tad responded, “I’m afraid we’re just going to have to agree to disagree on this conversation. I have the moral right to conduct performance reviews. In fact, it is my job. I do appreciate our chat today. You’ll get the results of my review within two weeks. Thank you for coming in Vicky. Good talk.”

“It’s Victoria.”

The Respondents

I have asked Nicole L. Swiss, court administrator for the 23rd Judicial Circuit in DeKalb and Kendall counties, Illinois; Nancy CS Eberhardt, court executive officer for the San Bernardino Superior Court, California; Shelly Bacon, deputy court administrator, Yavapai County Superior Court, Prescott, Arizona; and Ann E. Filkins, court administrator for the Eighth District Court in Kalamazoo, Michigan to provide responses.


Have you had an employee say that a supervisor should not evaluate an employee’s performance if the supervisor cannot do that person’s job?
Nicole Swiss, Ann Filkins, and Nancy Eberhardt all said they have had employees complain that supervisors should not evaluate employees if the supervisor does not know how to perform the employee’s job. Nancy added that she has heard complaints that supervisors lack a working knowledge of a unit’s desk duties as they are not engaged in the daily work.

Shelly Bacon recounted a time when an employee said that she had no idea what he did and, therefore, Shelly could not possibly appropriately appraise his performance. “I gently explained to this employee that though I don’t do their job on a daily basis, I do know the important role it plays in the overall scheme of things. I explained that I base my ratings on my interactions with the employee as well as information I receive either directly or indirectly.”

Do you think this type of complaint will become more common as court staff become more specialized?
Nicole believed that this will emerge as more of an issue as court staff become more specialized. “Staff will become increasingly agitated by being reviewed by managers who they feel are not as trained as themselves.”

Ann thought this could become more common as we integrate and implement new technology. “However, supervisors should make an effort to get to know the basics of every employee’s position.”

Nancy warned that the complaint could become more commonplace if courts do not hire the right leaders. Hiring supervisors just for their technical skills will inevitably lead to leadership and succession-planning problems. Hiring supervisors with leadership skills and giving them resources to sharpen those skills will negate a lack of expertise in any given area. “A good leader is not defined by the breadth of their technical skills—it is impossible to know that much. A good leader knows how to engage in conversation with employees, encourage thoughtful communication, and solicit feedback to learn what the employees need to succeed in their jobs. The number-one priority is to be present daily to the employees the leader serves.”

Should Tad have handled the meeting differently?
Ann and Shelly agreed that Tad could have handled the meeting differently. In Ann’s opinion, it started with saving performance issues for the evaluation. Rather, performance issues should be addressed as they occur. As a leader, Tad should have taken some time to get to know each of the employees, and he should not have immediately taken the supervisor’s side without completely listening to Victoria’s point of view. “As a new leader, he had an opportunity to investigate the situation and hear the employee’s issues as well. It’s never a good idea to be condescending, especially during an employee performance evaluation issue.”

Tad was a bit smug and condescending in Shelly’s view. “I think he should’ve either checked himself quickly or scheduled time to meet with Victoria a little later after emotions had calmed down a bit. Since it doesn’t appear this was possible, he should’ve heard her out then calmly and respectfully explained his position and the reasons why the office policy is what it is. He should have explained what the ramifications are if she doesn’t adhere to the policy.”

Nicole thought that Tad had handled the situation professionally. “He did not have to offer Victoria any more information than he already had, and he was willing to address her concerns with his additional evaluation of her performance review.”

Nancy noted that Tad’s role in this situation is as a neutral and final decision maker. “Telling Victoria he had a previous conversation with Jess shuts down any chance of a meaningful conversation. Moving straight to admonishment further alienates Victoria.” Tad missed an opportunity to get the other side of the story and some valuable feedback.

Nancy noted that if there is a formal policy on performance review appeals, Tad should have followed it. He should have thanked Victoria for stopping by, let her know what she has to say is important, and then given her instructions on how to proceed with an appeal. “If there is no formal policy, a meeting should have been set at a later date to discuss the evaluation further. Each person would have time to prepare, Victoria would have a cooling-off period, and information sharing could have occurred.”

Does Victoria need to change her perspective?
In Shelly’s opinion, the underlying issue is that this should have been brought to Victoria’s attention before her evaluation. “Had she been aware of management’s concerns, her performance appraisal would have come as no surprise to her. I do think Victoria needs some guidance as well as some additional training in customer service and office etiquette.”

Nancy sympathized with Victoria’s anger and frustration, but her behavior is inappropriate, disrespectful, and insubordinate in the workplace. “She may have valid points regarding the use of bilingual skills in the clerk’s office. However, changes must be worked out through discussion, research, and policy-making decisions, not rogue decisions by an individual employee. There is liability to the court given her current behavior and she is not thinking about global implications.”

Nicole thought that Victoria’s intent is in the right place, but she needs to understand the legal consequences of overstepping what courts can and cannot do. “Victoria might benefit from training on how to effectively communicate with her managers with tact and professionalism.”

Ann suggested that Victoria, Jess, and Tad sit down, address everyone’s concerns, and develop a plan outlining expectations to open the lines of communication.

Does this scenario involve ethics or is this simply office policy?
Shelly thought that this was an ethical issue. “No court employee should be providing advice to patrons in any language. Additional training on professionalism, language access, and instruction on where to reach court interpreters would serve Victoria well.”

Nicole and Ann both saw this as a policy issue. Nicole pointed out that policy is the driving factor in almost everything we do. “We must adhere to strict statutory requirements. Morals and ethics play a role, for instance, when we are assisting self-represented litigants, but not in a manager’s responsibility to evaluate their employees pursuant to the policy of the court.”

Ann noted that “salty” language should not be allowed in a professional workplace, in any language. “Court employees giving legal advice is definitely in violation of office policy. All employees should be treated equally. If employees are required to pass certification in order to translate without the phone line, Victoria should be required to pass her certification.”

Nancy did not see a moral or ethical violation on management’s part to monitor the work of the court. But, perhaps, there is a violation of accountability and transparency for not reviewing processes if concerns have been brought forward and if the way evaluations are performed for employees differs. “Victoria should not have been hearing about these issues for the first time through a written evaluation without the opportunity to meet and discuss.”

Nancy felt the mission of courts is to provide access to the public through a variety of means, such as language access, including appropriate and neutral information. “Victoria, although appearing sincere in her efforts to assist the public, may be doing more harm than good by operating outside policy and procedure. Translation of technical legal terms is difficult and must be skillfully accomplished or the litigant’s rights and responsibilities under the law may be compromised.”

Thanks again to Nicole Swiss, Nancy Eberhardt, Shelly Bacon, and Ann Filkins for their thoughts on this provocative issue. What employees think and how they perceive the court structure are important concerns for court administration. Be sure to visit the NACM ethics web page at https://nacmnet.org/Nacmethics/ethics-homepage.html to see previous ethics columns, and to download educational ethics modules your court or state association could use to present ethics training in your state. If you have an ethical issue you would like to discuss, if you have comments on this or any of the previous columns, please contact me at kieferpeter@hotmail.com.


Peter C. Kiefer has spent over four decades working for the courts in Oregon, California, and Arizona, as well as rule-of-law projects in Liberia, Moldova, and Beirut.

*Thanks, as always, to Nicole Garcia for allowing me to use her as a sounding board and for her superb editing skills.