Accepting paid part-time work for the city

May 20, 2013

Opinion 2013-1

Dear Assistant Clerk:

This letter is in response to your letter of April 17, 2013 to the Committee.  You are an Assistant Clerk in the  XXX  Superior XXX Court.  You inquire in your letter whether you may accept a paid position with the City of XXX           , which is in the same county as the court where you work.  You are interested in working ten hours per week with the city.  The position would involve either clerical or general maintenance duties, and would not include any decision making responsibilities.

Given its mandate to render advisory opinions with respect to the interpretation of S.J.C. Rule 3:12, the Code of Professional Responsibility for Clerks of the Courts (Code), the Committee interprets your letter as requesting the Committee's advice on whether your acceptance of the position would comply with the provisions of the Code.  It is the opinion of the Committee that it would not for the following reasons.   

As the Committee has often stated, the Code requires clerks both to be, and to appear to be, impartial.  More specifically, Canon 4, Impartiality and Disqualification, provides that "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 [a Clerk- Magistrate's] capacity to decide impartially any issue that may come before the Clerk-Magistrate in any official capacity."

In the Committee's view, the appearance of impartiality would be adversely affected by your working for the city while you are an assistant clerk at the criminal court.  It is likely that the city or its employees appear frequently in the court where you work.  City police officers appear regularly in criminal cases.  Your receiving compensation from a municipality that frequents the court where you work could reasonably be perceived as compromising your impartiality in proceedings involving the municipality.  Receipt of a paycheck from the city could give rise to the appearance of divided loyalty.  See Opinion No. 2006-2 where, stating that the appearance of impartiality is as important as actual impartiality, the Committee advised a clerk that accepting employment as a reserve police officer was impermissible even where opportunities for actual conflicts may be negligible.  For this reason, the Committee's opinion is that your employment with the city would be inconsistent with the Code.

You further inquire whether you may accept a position with the city if you were to transfer to a court outside the county where the city is located.  It is the view of the Committee that concerns about the appearance of impartiality would be substantially diminished if you worked in a court that did not include the city within its jurisdiction.  Whether such employment would be consistent with the Code would depend upon the specific nature of your duties in both employment situations.   In addition, in connection with any outside employment, the Code would prohibit your using any court time, resources, or the influence of the Clerk's office.

As noted above, the Committee's authority is confined to the interpretation of the Code.  The Committee has not considered whether the provisions of the Conflict of Interest Law of the Commonwealth or the court's personnel policies have a bearing on your request.