Serving on board of organization that regularly files actions in Clerk-Magistrate's court.

January 23, 1991

Opinion 91-2

Dear Clerk:

In your letter of November 16, 1990, you state that you have owned and lived in a condominium for the past fifteen years. You state that you have been on the board of the managers of the association and in the past you have served as its president. You are currently a member of the board, though not an officer. You state that on a regular basis the board files claims for overdue common charges in the court where you are the clerk-magistrate. You state that the board has in the past also filed other types of suits in your court. Small claims filed in the court where you are the clerk-magistrate as well as the other matters are all handled by attorneys representing the board.

All of the transactions of the board are handled by the Treasurer of the condominium and the paid staff person who keeps the books and handles the correspondence. You as a board member do not see individual names, and receive only the accounts receivable reports.

A question of conflict of interest has been raised by an owner currently a defendant in a small claims suit in your court based on the fact that you are on the board and are also the clerk-magistrate. You maintain that you do not gain personally by any transaction relating to common charges before the court, are only one of five owners on the board, and have no role in the decisions.

The Committee concludes that your serving on the board of an organization that regularly files actions in the court where you are the clerk-magistrate would violate the provisions of CANON 4. This canon provides that:

"A Clerk-Magistrate . . . should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judicial branch of government.

"A. Appearance of Impartiality. A Clerk-Magistrate shall not convey the impression that any person is in a special position to influence the Clerk-Magistrate. . . ."

"C. Business Activities. A Clerk-Magistrate shall not enter into any business relationship which reasonably might create a conflict with the proper performance of his or her official duty or detract from the dignity of the office."

Secondly, the Committee feels that your serving on this board violates CANON 5 which regulates outside activities. CANON 5 provides: "A Clerk-Magistrate shall regulate outside and personal activities to minimize the risk of conflict with official duties: . . ."

The actions that your board files in the court where you are the clerk-magistrate leave you open to criticism that somehow you have influenced either the procedure or the outcome of the suits in the court. 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).