Serving on Board and as President of Non-Profit Corporation and Fundraising for Charity
June 4, 2015
Dear Assistant Clerk-Magistrate ____________:
This is in response to your letter of May 9, 2015, seeking the Committee's opinion. You are an Assistant Clerk-Magistrate in the ____________ Court. You currently serve on the board of directors of a non-profit corporation that produces summer musical theatrical entertainment. The board members are not compensated although the actors and some staff, including your son, are paid a contracted amount. You were recently nominated to serve as President of the corporation, also an uncompensated position. You describe the position of President as more like a chairman of the board, rather than an executive position, and you included with your letter the corporation's bylaws. The board solicits charitable donations from corporations, foundations, and individuals. It also receives funding from the Massachusetts Cultural Council. The election of the President is scheduled to be held on June 17, 2015, and you ask whether your service in this role would be permissible under the Code of Professional Responsibility for Clerks of the Courts.
Canon 5(B) addresses a Clerk's participation in civic and charitable activities. Such participation is generally permitted provided that the activity does not reflect adversely on the Clerk-Magistrate's impartiality or interfere with the performance of his or her official duties. The Canon allows a Clerk-Magistrate to serve as an officer, director, trustee, or non-legal advisor of an educational, religious, charitable, fraternal, or civic organization not conducted for the economic or political advantage of its members, subject to the following limitations:
"(1) A Clerk-Magistrate shall not participate if there is a substantial likelihood that the organization, or a significant number of members of the organization, will be engaged in proceedings that would ordinarily come before the Clerk-Magistrate or the court in which the Clerk-Magistrate serves.
(2) A Clerk-Magistrate may solicit funds for any educational, religious, charitable, fraternal, or civic organization, but shall not use or permit the use of the prestige of the office for that purpose or solicit his or her staff for that purpose . . . "
In prior opinions, the committee has generally found civic and charitable activity by a Clerk to be permissible if the charitable organization and its members do not come before the court where the Clerk serves, the Clerk does not use the prestige of the office to advance the organization, and the Clerk does not use court time or resources for the civic or charitable work. See Opinions 2015-4, 1994-12. Because you indicate that you do not expect that persons and entities doing business with the corporation would be involved with the court where you work, provided you comply with the requirements noted above, it is the view of the committee that your serving as President of the corporation would be permissible under the Code.
As noted, Canon 5(B)(2) allows a Clerk to solicit funds with certain restrictions. A Clerk may not use or permit the use of the prestige of the office for solicitation, or solicit his or her staff. The committee also has cautioned that solicitations should not be directed to lawyers, particularly those who appear in the court where a clerk works. See Opinions 2015-4, 2005-1. (". . . a solicitation directed to lawyers, particularly those who appear in the court where you work, has the potential to violate the Code. It may open up the possibility that lawyers will want to discuss your letter and donation during the court's normal working hours. It also could give rise to the appearance that you were using the prestige of your office to encourage donations by lawyers, a practice strictly prohibited under ethical rules of Canon 5. Canon 5 also instructs Clerk-Magistrates to minimize the risk of conflict with official duties. These considerations lead us to the view that you should not participate in direct solicitation from lawyers who practice in your court. If soliciting a particular lawyer creates an issue as to impartiality, the Committee advises you to consult and comply with the provisions of Canon 4(E) on Disqualification." Opinion 2005-1)
In sum, provided you comply with the provisions of Canon 5(B), and do not use court time or resources for your corporation activities, it is the opinion of the Committee that your serving as President would be permissible under the Code. Should the corporation, or persons or entities doing business with the corporation appear before the court where you work, you should comply with Canon 4(E), Disqualification.
Christine P. Burak, Esq.
Secretary, Advisory Committee on Ethical Opinions