Windham County assistant judge cited with violating code of ethics
BRATTLEBORO — An assistant judge in Windham County was investigated by the Vermont Judicial Board for failing to establish, maintain and enforce the high standards expected of his elected position "so that the integrity and independence of the judiciary will be preserved."
Another term for an assistant judge is side judge.
The events leading up to the complaint filed against Paul Kane, of Westminster, began in October 2009, when Kane moved into the Westminster home of his uncle's second wife, Catherine Tolaro, who was 82 at the time and showing signs of dementia. That same month, Tolaro executed a "Limited Power of Attorney For Finances" granting Kane and his wife the ability to obtain financial information on her behalf. One month later, Tolaro executed a will that gave 30 percent of her assets to charity and distributed the rest to six beneficiaries, one of whom was Kane. At the time, Tolaro's net worth was $767,500. Over the next six years, Tolaro's estate dwindled away, as Kane issued a pair of loans and made claims against the state for the costs of Tolaro's care.
In July 2015, Kane filed a written statement of claim against Tolaro's estate, claiming $833,292.51 was owed to him, including $722,740 for caring for her at $18 per hour, 159 hours per week (a week contains a total of 168 hours) for 135 weeks. This amounted to around the clock payment except when a home care nurse was there for two to three hours three times per week.
The claim also included $20,925 for 31 months of room and board calculated at $675 per month, $7,800 due to (Kane) and his wife for financial and property management and $31,827.51 for "expenses advanced to the estate by Paul Kane from April 21, 2012 to July 31, 2015."
Kane filed "a manifestly implausible claim against (the) estate" with a wage calculation that left only four hours per week for him "to work, sleep or do anything other than care for (his client). Given that he was employed at the time, that is not possible," stated the complaint, which was written by Ian Carleton, an attorney with Sheehey Furlong & Behm in Burlington.
In May of 2011, three years before Tolaro died, Kane "executed a $24,000 unsecured loan agreement to David Carrier, a co-worker ... for purchase of a mobile home." And then two months later, Kane withdrew a $19,033.36 cashier's check and transferred it by phone to Mark Olbrych, Sr., a personal friend, according to court documents.
"Over time (Kane) sometimes deposited loan payments from Carrier and Olbrych into Ms. Tolaro's accounts, and sometimes into his own accounts," stated the complaint. "(Kane) continued to collect loan payments from both Carrier and Olbrych even after Ms. Tolaro died, even though (Kane's) POA was extinguished and he no longer had any legal authority to tend to Ms. Tolalro's financial affairs."
Kane also "had no legal authority to manage ... loans after (his client's) death. Rather, they should have been managed by the estate administrator. In addition, (Kane) did not have authority to negotiate any forgiveness or write off of any portion of those loans, which he did in both cases."
Kane was called before the Judicial Board in November 2015 to answer to the complaint filed against him, when, according to Carleton, he "did not provide entirely truthful testimony ... (Kane) neither 'respected' nor 'complied with' the law but rather violated it repeatedly."
Kane's phone in Westminster has been disconnected.
Another action Kane stands accused of includes issuing a check from Tolaro's estate for $60,000 with "savings" written on the memo line. Shortly thereafter, Tolaro executed a new will, leaving the Westminster home to Kane and his wife, while bequeathing small amount to four charities. "The remainder was distributed evenly to (Kane), Michael Tolaro (Ms. Tolaro's nephew), and Gloria and James Carr (two of her friends)," noted Carleton.
In August 2010, Kane purchased an annuity on Tolaro's "behalf," with $123,228 from her estate, naming himself and his wife as sole beneficiaries. Then, one month later, an apartment owned by Tolaro and located in Cherry Hill was sold for $115,000, a sale handled by Kane pursuant to the power of attorney. The proceeds of the sale were deposited in one of Tolaro's checking accounts, and over the next several months, Kane procured three cashier's and bank checks totaling $79,000, wrote Carleton. "In subsequent sworn testimony ... (Kane) ... asserted that this money came from a joint account. This was not true."
In February 2012, Kane purchased a $144,000 annuity on behalf of Tolaro, again naming himself and his wife as primary beneficiaries. In May 2012, Kane filled out a residency application for a care facility in Ascutney, disclosing $625,000 to $650,000 in assets. "Among Tolatro's assets (Kane) listed monthly payments of $925 and $425 without explaining what they were," wrote Carleton. Later though, Kane "took the position that these were payments on the Carrier and Olbrych notes, and that they were (his) income, not Ms. Tolaro's. ... This was not true."
In June 2012, Kane's wife died and about this same time, he placed Tolaro in a care facility, "because it was too much work to care for her without his wife's assistance." A little less than two years later, Kane began the process of liquidating the annuity he purchased and two weeks later, Tolaro died, which terminated Kane's power of attorney, "and thereafter he had no authority to act on behalf of Tolaro's estate," noted Carleton. Eventually, the holder of the annuity issued a $64,000 check to Kane, though the money should have been deposited in Tolaro's estate.
In 2014, Kane's attorney at the time, Chris Moore, of Bellows Falls, who was also the executor of the estate of Tolaro, estimated Tolaro's total worth in 2014 as $375,000, down from the $767,500 estimated in 2010. Moore sent letters to the insurance company and the other beneficiaries of Tolaro's will, asking them to consent to the designation of (Kane) and his wife as beneficiaries of the ... annuity," though Moore did not "disclose whether he was acting in his capacity as estate administrator, or in his capacity as attorney for one of the estate's beneficiaries, or doing both at the same time," wrote Carleton. Before the end of 2014, Moore emailed an annuity broker, "asking for help obtaining a $144,000 death benefit despite not being able to get the consent to beneficiary forms requested by (the insurance company)," noted Carleton.
One of the charities named in Tolaro's will hired Bellows Falls attorney Ray Massucco in September 2014 to look into the conflict of interest raised by the insurance company. In January 2015, Massucco wrote to Moore "raising Moore's conflict of interest complaining of his evasiveness in refusing to produce copies of the ... annuity documents." One month later, Moore filed an update of Tolaro's estate, with a total value of $200,000, all of which was real estate. And then in March 2015, local attorney Jodi French was appointed successor administrator to the estate.
That same month, Kane was sworn in as an assistant judge, and a day later, he negotiated a partial write-off of the Carrier loan "pursuant to which he personally collected $10,000."
In November 2015, Kane testified under oath at a hearing, and in May 2016, a probate judge in Windsor County ordered Kane turn over to the Tolaro estate $55,188.12 in estate assets from various bank accounts, to produce his tax returns from 2010 to 2014, to sit for deposition within 90 days along with Carrier and Olbrych, and to turn over possession of Tolaro's personal residence located on Pleasant Street in Bellows Falls.
Whether or not Kane could face criminal charges is not known at this time. No case has been filed with the Windsor County State's Attorney's Office and the U.S. Attorney's Office declined to comment on whether it was conducting an investigation into his actions.
Bob Audette can be contacted at 802-254-2311, ext. 160.
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