Serving as elected member of City Council.

December 13, 1999

Opinion 99-6

Dear:

This is in response to your letter of November 18, 1999 requesting an opinion from the Committee with respect to the following issue. You have been elected to the City Council for a term which will begin on January 1, 2000. You are also a candidate for the position of First Assistant Register at the Probate Court. You request an opinion on the propriety of holding both positions under the Code of Professional Responsibility for Clerks of the Courts. You note in your letter that you have contacted the State Ethics Commission and that you "understand from them that it is permissible . . . to hold both positions but that [you] should also write to [this Committee]".

We note at the outset that this Committee is authorized to provide opinions to persons holding the position of Clerk-Magistrate as that term is defined in the Code. Our operating rules state that "A request may only be made by Clerk-Magistrate or a person who has been nominated to be a Clerk-Magistrate as that term is defined in Canon 1 of Supreme Judicial Court Rule 3:12." (See Committee Rule 1) In issuing this opinion, we view your request as that of a "person who has been nominated to be a Clerk-Magistrate".

We also note, as we have indicated in prior opinions, 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." (See Opinion 94-13 ) With this perspective in mind, we direct you to the following provisions of the Code of Professional Responsibility for Clerks of the Courts.

Under Canon 6 of the Code, Clerk-Magistrates, other than those who are elected, are required to refrain from political activity. This general prohibition is followed by four examples of political activity which are specifically prohibited. Canon 6(4) states that a Clerk-Magistrate shall not "hold or seek an elective public office if there is a substantial likelihood that matters involving that office will come before the Clerk-Magistrate or the court in which the Clerk-Magistrate serves. . .".

Canon 5(C)(1) provides that:

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.

In the view of this Committee, your duties as City Councilor in the city where the court in which you wish to serve as Assistant Register is located would raise concerns of potential conflict and the appearance of impartiality. In our opinion, it would be likely that your duties as councilor would at times involve you in transactions with lawyers or other persons likely to come before the Probate Court in contravention of Canon 5. Although we are not familiar with all the duties and obligations of a member of the City Council, we view the general legislative and political functions of such bodies as incompatible with Canon 4's requirement that a Clerk-Magistrate "should act in all times in a manner that promotes public confidence in the integrity and impartiality of the judicial branch of government", as well as Canon 6's prohibition on political activity. As a councilor, it can be expected that constituents will frequently contact you regarding various issues, and it is likely that some of these constituents will have business before the Probate Court or other Courts. Municipal decisions on personnel or funding can also be viewed by some as implicating your impartiality.

We recognize your good intentions to professionally perform your duties as City Councilor and First Assistant Register. As we have previously stated however, "[T]he Canons are designed to operate prophylactically. The Rules do not await an actual impropriety nor do they depend upon recusal to solve conflicts where the situation is one which 'might reasonably create' them. A determination that they apply does not presume any lack of integrity by the Clerk." (Opinion 92-5 )

In view of the likelihood of at least the appearance of conflict and partiality that would arise if you were to simultaneously serve as First Assistant Register and City Councilor, we advise you against holding both positions.