Serving as City Councilor

December 28, 1994

Opinion 94-13

Dear:

This is in response to your letter to Chief Justice Liacos dated December 9, 1994, seeking advice from the Advisory Committee on Ethical Opinions for Clerks of the Courts.

In your letter you state that you have been elected to serve as Clerk-Magistrate for the . You note that you intend to serve in that capacity as a full time clerk. You also contemplate that for some overlapping period of time, you will continue your responsibilities as a City Councilor during 1995, the final year of your current two year term.

You attach to your letter copies of legal opinions which you have requested and received from Counsel for the City of , the State Ethics Commission and a law firm. You also note that Chief Justice for Administration and Management Irwin has suggested that you seek further clarification of your obligations under the Code of Professional Responsibility for Clerks of the Courts. In your letter of December 9, you request any additional advice that the Committee might render regarding procedures to be followed while you serve in both offices to which you were elected.

The Advisory Committee established under S.J.C. Rule 3:14 is authorized to render advisory opinions on the interpretation of the Canons contained in the Clerks' Code of Professional Responsibility. Therefore, the advice provided in this opinion is limited to your obligations under that Code, and we make no comment on any duties imposed on you by the Constitution, statutes, or rules or regulations of other bodies.

We also note at the outset, as we have stated in the past, that the Code to which Clerk-Magistrates must conform is somewhat broader in terms of protection of the integrity of the office and also more specific to the role of the Clerk-Magistrate than the provisions of G.L. c. 268A, which we do not attempt to interpret. With this framework in mind, we bring to your attention the following provisions of the Code which are applicable to your situation.

The definitions in Canon 1 make it clear that the Code's provisions apply to elected Clerk-Magistrates unless it is otherwise expressly provided. Therefore, the provisions of Canon 3, Performance of Duties, would govern your conduct. This Canon provides:

A Clerk-Magistrate shall devote the entire time during normal court hours to the duties of his or her office, but may, according to established procedures, participate during that time in law-related educational and public service activities. An elected Clerk-Magistrate may participate during ordinary court hours in activities reasonably related to his or her duties as an elected Clerk-Magistrate...

This Canon clearly provides that the position of Clerk-Magistrate is a full time position requiring the full time presence of the Clerk-Magistrate during normal court hours. The exceptions to this requirement of full time presence, for educational, public service and activities related to duties as an elected Clerk-Magistrate, in our opinion would not allow you to perform services related to your position as a City Councilor during normal court hours.

The provisions of Canon 5 are also relevant. Paragraph (C)(1) of this Canon provides:

A Clerk-Magistrate shall not conduct outside business activities in the courthouse at any time nor shall a Clerk-Magistrate conduct any outside business activities anywhere during normal court hours. A Clerk-Magistrate shall refrain from financial and business dealings that tend to reflect adversely on the Clerk-Magistrate's impartiality, interfere with the proper performance of the position of Clerk-Magistrate, or involve the Clerk-Magistrate in transactions with lawyers or other persons likely to come before the court in which the Clerk-Magistrate is serving.

Under this Canon, a Clerk-Magistrate may not perform services related to another job in the courthouse at any time, nor can those services be performed anywhere during normal court hours.

We share Chief Justice Irwin's concerns that your duties as City Councilor, coupled with your authority as county commissioner, may raise concerns of potential conflict and the appearance of impartiality. It may be that your various roles would involve you with lawyers or other persons who are likely to come before the court where you serve. We are not familiar with the required duties, responsibilities and obligations of a Boston City Councilor and can comment only on what is required of you as a Clerk-Magistrate governed by the Code. In this regard, we advise you of your obligations under Canon 4 (B), Personal Affairs.

A Clerk-Magistrate shall conduct personal affairs in such a way as not to cause public disrespect for the court and the judicial system. A Clerk-Magistrate shall not engage in activities nor incur obligations which would tend to detract from the dignity of the Clerk-Magistrate's office or interfere or appear to interfere with official duty. A Clerk-Magistrate shall not engage in 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.

Under this Canon, any conduct or obligation that suggests that a Clerk-Magistrate is not devoting full time to his duties as Clerk-Magistrate would detract from the dignity of the office and cause public disrespect for the court and the judicial system. We also suggest that you become familiar with the provisions in paragraph (E) of Canon 4 concerning disqualification.

In closing, we repeat that our analysis is limited to our interpretation of the Code of Professional Responsibility, rather than any other past practices or present policies. Any such practices or policies notwithstanding, it is the opinion of this Committee that the Code clearly requires a Clerk-Magistrate's full time presence during normal court hours and that any conduct that does not conform to this standard would be a violation of the Code.