Serving as reserve police officer while 1st assistant clerk

April 25, 2006

Opinion 2006-2


You have requested an advisory opinion from this Committee as to whether you may serve, if appointed, in the position of a reserve police officer with the _____ Police Department. You informed us that you are currently employed as the First Assistant Clerk of the _________ Court. Beyond the normal staff supervisory functions inherent in the position, you state that you advise the justices on procedural motions and interlocutory petitions, draft proposed orders, assist the bar and the public on procedural issues, check briefs for format and participate in bar education in a number of different forums (MCLE, Flaschner, local bar associations). Because you work in a reviewing, not a trial court, you do not make probable cause determinations, set bail or issue criminal process. You virtually never see a criminal defendant, but you do see counsel who normally appear at oral argument (inmates, even pro se, are never brought in) and you rarely take the courtroom session.

The provisions of Canon 4 of the Code of Professional Responsibility for Clerks of Court state, a Clerk-Magistrate shall perform the duties of Clerk-Magistrate impartially and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judicial branch of government. Canon 4(B) prohibits outside activities which would cast doubt on his or her capacity to decide impartially any issue that may come before the Clerk-Magistrate in any official capacity. In addition, Canon 5 states that a Clerk-Magistrate should not engage in activities which might . . . interfere with the performance of the duties of the office."

The hallmark of an independent judiciary is its neutrality. The Committee is concerned that the appearance of impartiality will be substantially and adversely affected by your employment as a reserve police officer while you are an assistant clerk of the _________ Court. The appearance of impartiality is as important as actual impartiality in promoting public trust and confidence in the courts of the Commonwealth. As the Committee has previously noted, to ensure the integrity of the judicial system, it must not only be beyond suspicion but must appear to be so. Mass. Bar. Assn. v. Cronin, 351 Mass. 321, 326 (1966). In the view of the Committee, your working for a law enforcement agency while you are employed by the judicial branch could reasonably be perceived as compromising your impartiality, even if opportunities for actual conflicts may be negligible. Accordingly, it is our view that you may not serve as a reserve police officer for the Town of -------- while serving as an assistant clerk for the ---------- Court.

Because the Committee's authority is confined to the interpretation of the Code of Professional Responsibility for Clerks of the Courts we do not consider whether the conflict of interest law of the Commonwealth, G. L. c. 268A, or the court's personnel policies have a bearing on your request.