Appointment as Special Sheriff by County Sheriff.

January 22,1998

Opinion 98-1

Dear:

You have requested an advisory opinion from this Committee as to whether you may accept an appointment by the County Sheriff as a Special Sheriff as defined in G. L. c. 37, §5.

The facts as you relate them are that you are the Clerk Magistrate for the Division of the District Court Department in County, Massachusetts. You have been offered an appointment with the County Sheriff's Office as a Special Sheriff.

The provisions of Canon 4 of the Code of Professional Responsibility for Clerks of Court state 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." 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.

Canon 5 (C) states that a clerk-magistrate "shall not conduct outside business activities in the courthouse at any time, nor shall a clerk-magistrate conduct outside business activities anywhere during normal business hours."

The proposed appointment runs afoul of the provisions of Canons 4 and 5. (1)

Your acting as special sheriff while you are the Clerk-Magistrate may serve to undermine public confidence in the impartiality of the judicial branch of government or interfere with the performance of your official duties as Clerk. In our view, such dual service is inconsistent with the Code of Professional Responsibility for Clerks of Court even though your appointment as special sheriff would be in a different county from the one where you serve as Clerk-Magistrate.

It is the opinion of the Committee that you may not accept that appointment. In accordance with the statutes, a special sheriff has the authority of a deputy sheriff, which would include the power of arrest, as well as service of process. In that your responsibilities as a clerk-magistrate require you to perform magisterial and adjudicative functions, as well as administrative functions, serving as a special sheriff could adversely affect your ability to perform your duties in an impartial manner, as well as maintain the appearance of impartiality.

We hope that this letter is of assistance to you.

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1. 1 To the extent that a matter extends beyond county bounds, Canon 5 (E) would apply.