Docket No. 343

In the Matter of William Highgas, Jr.

March 14, 1988

Decision and Order


Appearing:

David A. Wilson, Esq.
Counsel for Petitioner

Lawrence T. Perera, Esq.
Diane C. Tillotson, Esq.
Counsel for Respondent

Commissioners:

Diver, Ch., Basile, Epps, Gargiulo, Jarvis

COMMISSION'S RULING ON RESPONDENT'S MOTION TO DISMISS OR FOR DECISION ON THE FINDINGS

I. Introduction

The Enforcement Division of the State Ethics Commission
(Commission) issued an Order to Show Cause on October 1, 1987
alleging that a state judge, William Highgas, Jr. (Respondent),
violated s.23(b) (3) of the conflict of interest law. Respondent
has filed a Motion to Dismiss or For Decision on the Pleadings
challenging the Commission's jurisdiction to enforce the provisions
of s.23(b) (3) of G.L. c. 268A against a member of the judiciary
on the basis that the Commission lacks both statutory and
constitutional authority to do so.

II. Procedural History

On December 8, 1986, the State Ethics Commission initiated a
preliminary inquiry into allegations that Respondent made
beneficial guardian ad litem appointments to an attorney who had
done significant financial favors for Respondent, thereby violating
s.23(b) (3) and other related sections of the conflict of interest
law.[1] On April 27, 1987, the Commission found reasonable cause
to believe that Respondent violated s.23(b) (3) of G.L. c. 268A[2]

On September 24, 1987,Respondent sought an order from the
Supreme Judicial Court to restrain the Commission's Enforcement
Division from issuing an Order to Show Cause on the s.23(b) (3)
violation. Respondent contended that the application of... s.23(b)
(3) to a member of the judiciary, coupled with the assertion of
power by the Ethics Commission to enforce that statute against a
member of the judiciary, violates the separation of powers clause
of Article XXX of the Declaration of Rights of the Massachusetts
Constitution.

Respondent's Complaint in the Nature of Mandamus and Cert. and
Temporary Restraining Order, September 24, 1987. A single justice
of the Court entered the restraining order which, after review by
the full Court, was vacated one week later.

Page 335

The Enforcement Division subsequently issued an Order to Show
Cause In the Matter of William Highas, Jr. on October 1, 1987. On
November 19, 1987, Respondent requested the Supreme Judicial Court
to stay the Commission proceedings against Respondent until the
Court could rule on the merits of his jurisdictional claims. The
Court indicated that the Commission should initially address
thejurisdictional question on the basis of the allegations made in
the Order to Show Cause. Accordingly, Respondent filed with the
Commission his Motion to Dismiss or For Decision on the Pleadings
on December 18, 1987. The Commission issues this Decision and Order
on Respondent's Motion.

III. Findings of Fact

For purposes of deciding the jurisdictional question raised by
Respondent's Motion, the Commission takes notice of the facts
alleged in the Order to Show Cause.[3] The factual allegations
which form the basis of Respondent's alleged s.23(b) (3) violation
are largely undisputed and are summarized herein:

1. Respondent is an Associate Justice of the Massachusetts
Probate and Family Court He lives in Lynnfield where his property
was part ofa subdivision developed by Wildewood Realty Trust
(Wildewood) Attorney Anthony Rizzo (Rizzo), a friend of Respondent,
resides in the same development.

2. Respondent leamed of the Wildewood Development through Rizzo.
In December 1982, when Wildewood wanted to sell the property which
interested Respondent, Respondent did not have the money on hand
to buy it. Rizzo offered to buy the property for Respondent and
transfer it to him later.

3. On January 19, 1983, thirteen days after Respondent was sworn
in as a probate judge, Respondent sold some stock to pay Rizzo for
the property but did not pay any interest. Rizzo continued to hold
title to the property for two years so that the Respondent could
take advantage of Rizzo's agreement and relationship with Wlldewood
to ensure that he could build the house he wanted (for example, by
getting an easement over another lot for a driveway).

4. During the approximately two year period in which title to
the property was in Rizzo's name, he received and paid all but one
of the bills for real estate taxes. Respondent reimbursed Rizzo
sometime after the payments were made but did not pay Rizzo
interest on the tax payments.

5. As a probate judge, Respondent makes master, administrator,
counsel and guardian ad litem (GAL) appointments. From 1983 to
1986, Respondent made 242 appointments to about 117 different
persons. Respondent appointed Rizzo to be a master once, an
administrator once or twice and a GAL 28 times. These appointments
were made from November 2, 1983 through August 1, 1986. Rizzo
received fees totaling over $22,000 for the GAL appointments. These
appointments were made at a time when Rizzo was doing significant
favors for Respondent in connection with Respondent's purchase of
property.

6. Respondent did not make any public disclosure in connection
with his appointments of Rizzo as a guardian ad litem pursuant to
G.L. c. 268A, s.23(b) (3).

IV. Decision

For the reasons stated below, the Commission concludes that it
has statutory jurisdiction to enforce the provisions of s.23(b)
(3) of G.L. c. 268A against Respondent, a member of the judiciary,
and that the exercise of such jurisdiction on the facts alleged in
the Order to Show Cause is constitutionaly permissible.

A. The Conflict of Interest Law is Applicable to the Conduct
of a State Judge

The plain language of G.L. c. 268A and c. 268B endows the
Commission with statutory jurisdiction to enforce all sections
ofthe conflict law against judges. The conflict law defines "site
employee" as "a person performing services for or holding an
office, position, or membership in a state agency...", G.L. c.
268A, s.1(q), and defines "state agency to include "the judiciary."
G.L. c. 268A, s.1(p). Thus, a state judge is a state employee
within the meaning of the conflict of interest law and is subject
to its provisions. Further, the Commission's authority to enforce
all sections of G.L. c. 268A, including s.23, is explicit. G.L. c.
268B, s.3(i). Accordingly, the Commission may apply s.23 and other
sections of the conflict of interest law to Respondent.

Respondent contends that the legislature did not intend this
result. However, a brief review of the law's development
demonstrates that this is precisely what the legislature intended.
In the conflict law's original enactment, St. 1962, c. 779, the
definitions of "county employee" and "state employee" excluded
members of the judiciary. St. 1962, c. 779, s.1(d) and (q).[4] The
conflict of interest law was amended by the enactment of St. 1969,
c. 350, "An Act Making Members of the judiciary Subject to the Law
Governing the Conduct of Public Officials". This amendment
eliminated the exclusion of members of the judiciary from the
definitions of state and county employees. Consequently, members
of the judiciary have been subject to the provisions of G.L. c.
268A since 1969. The conflict of interest law was subsequently
amended giving the Commission explicit statutory power to enforce
s.23 after April 8, 1986, the dab ofenactment. St. 1986, c. 12.[5]

The course of legislative amendments therefore reveals that G.L.
c. 268A applies to judges and that the Commission is empowered to
enforce every section of G.L. c. 268A, including s.23. Thus, the
Commission has

Page 336

statutory authority to exercise s.23 jurisdiction over
Respondent.[6]

B. The Commission's Exercise of Jurisdiction over Respondent is
Constitutional

I. The Application of Section 23(b)(3) to Respondent Does Not
Impermissibly Interfere with His Appointments of Guardians ad litem


Article XXX of the Massachusetts Declaration of Rights[7]
provides that there shall be three branches of government and that
"[t]he legislative and executive departments are prohibited from
exercising powers entrusted to the judicial department." Opinion
of the Justices to the Senate, 375 Mass. 795, 813 (1978). The
Supreme Judicial Court has recognized, however, that there is "the
need for some flexibility in the allocation of functions among the
three departments. Id. "[A]n absolute division" of the three
branches of government is "neither possible nor always desirable."
Opinion of the Justices, 365 Mass. 639,641(1974). What is
prohibited in a case such as this is "...impermissible interference
by the legislative or executive branches with the functions of the
judicial branch." Opinion of the Justices, 375 Mass. 795,813 (1978)
(emphasis added).


Respondent contends that the Commission's exercise of
jurisdiction over him on the basis of a possible violation of G.L.
c. 268A, s.23(b) (3) is an unlawful interference with the powers
of the judiciary to exercise its discretion in the appointment of
a GAL. These appointments, Respondent asserts, are governed by G.L.
c. 268A, s.34 which authorizes the appointment of a "suitable
person" in the judge's discretion. Respondent's counsel stated in
oral argument that when a judge acts in his or her discretionary
capacity as a judge, i.e., performing a core judicial function, the
application of s.23(b) (3) to any such discretionary act (such as
the appointment of a GAL) is impermissible interference. We do not
agree.

First, it is not clear that the appointment of a GAL is properly
characterized as a core judicial function. The appointment of a GAL
seems more of an administrative act than a substantive legal
action. Core judicial functions would more logically include
actions taken during trials and other court proceedings, such as
the issuing of rulings on legal questions and the rendering of
legal decisions. The appointment ofa "suitable person" to be a GAL
would appear to require primarily judgment of personnel, as opposed
to the exercise of expert legal analysis. The GAL statute does not
even require the "most" or "best" suited person for the job it
merely requires a "suitable person.

More important, we are not persuaded that, however one defines
core judicial functions, they are entirely insulated from the
application of the conflict of interest law. As Respondent's
counsel conceded in oral argument, were ajudge to accept a bribe
in exchange for the appointment of a GAL, surely the Ethics
Commission could enforce the bribery section of the conflict of
interest law against the judge. See G.L. c. 268A, s.2. This is so
notwithstanding the characterization ofthe GAL appointment as a
core judicial function. By the same token, the Commission could
presumably enforce the anti-nepotism provisions of the law, s.6,
to a judge who appointed an immediate family member to be a GAL.
We can discern no legitimate basis for characterizing the
Commission's jurisdiction as appropriate when bribery or nepotism
is involved, but inappropriate when an appearance of undue
influence is at stake.

Furthermore, Respondent has failed to demonstrate that the
effect of the application of s.23(b) (3) would constitute an
impermissible interference, regardless of whether the appointment
is a "core" or administrative act. The application of s.23 of the
conflict law to Respondent's appointment of a GAL merely requires
that, if a reasonable person knowing the relevant circumstances
would believe that Respondent is making a GAL appointment to one
who could unduly enjoy Respondent's favor, Respondent should dispel
this appearance of favoritism by "disclos[ing] in writing to his
appointing authority... the facts which would otherwise lead to
such a conclusion." G.L. c. 268A, s.23(b) (3). This disclosure
remedies any appearance of a conflict. Section 23 of the conlllict
law does not require Respondent to appoint a different person or
even instruct Respondent concerning who is a suitable person.
Section 23 merely requires a disclosure when an appointment is made
which gives the appearance of favoritism. Such a requirement
permits the appointing authority to intervene when appropriate, in
this case to maintain appropriate ethical standards, and to that
extent the requirements of s.23 can properly be characterized as
complementary to the Judicial Code of Conduct.[9]

Respondent's contention that the application of s.23(b) (3)
would create a chilling effect on his GAL appointments is belied
by the sheer number of appointments he has made which did not raise
s.23 concerns. In a three year period, excluding the twenty-eight
appointments to Rizzo, Respondent made approximately 242
appointments to 117 different persons, or about two appointments
per lawyer every three years. Accordingly, the argument that
s.23(b) (3) will chill thejudge's ability to exercise his
discretion to appoint GAL's is unpersuasive. The limitation on a
judge's discretion to appoint a GAL is minimal. A judge is merely
required to dispel any appearance of bias and, in the same way that
a judge is prohibited from appointing his immediate family members
as GAL's and from appointing GAL's who offer bribes, a judge must
make his appointments in accordance with s.23(b) (3) of the law,
concerning the appearance of favoritism. Therefore, we do not find
that the application of s.23 to Respondent impermissibly inter-

Page 337

feres with his exercise of discretion or the performance of his
judicial function,

2. The Application of Section 23(b)(3) to Respondent Does Not
Impermissibly Interfere with the Judiciary's Power to Regulate its
Members

The Commission on Judicial Conduct (CJC) was established in 1978
pursuant to St. 1978, c. 478 to assist the Court in the
superintendence of judges. The CJC's enabling act provides that


Notwithstanding any other provision of the law, the commission
shall investigate, upon complaint of any person ... the action
of any judge that may... constitute a breach of the Canons of
Judicial Ethics as promulgated by the Supreme Judicial Court


G.L.c. 211C,s.2.[10]

Respondent argues that the proceedings of the State Ethics
Commission constitute an unconstitutional interference with the
"exclusive and paramount" power ofthe judiciary (as assisted by the
CJC) to regulate its members. Respondent's Brief at 7. Respondent's
argument overlooks the very language of the CJC's enabling act
(...notwithstanding any other provision of the law...) which
expressly contemplates that other laws and entities may govern the
conduct of judges. Furthermore, contrary to Respondent's assertion,
we do not find that the Supreme Judicial Court has ever declared
that it alone may exclusively address the conduct ofa member of
the judiciary, nor do we agree that the authorities upon which the
Respondent relies for this proposition so state. See, e.g., In the
Matter of Troy, 364 Mass. 15,21-22(1973) (where the Court held
that, in addition to the responsibility of the Governor and General
Court for removing judges, the Court had the authority to review
a judge's conduct); O'Coins, Inc v. Treasurer of the County of
Worcester, 362 Mass. 507, 5-510 (1972) (where a judge, in addition
to the executive branch, not exclusive of it, may contractually
bind the state for expenses reasonably necessary for the operation
of his court); In the Matter of Edward J. DeSaulnier, 360 Mass.
757, 758-759 (1971) (where the court, as well as the executive
branch, may take action "to protect the integrity and
reputation of the judicial process").

The Commission finds the Supreme Judicial Court's decision in
Edgartown. State Ethics Commission, 391 Mass. 82(1984), instructive
in light of Respondent's constitutional claim that the judiciary
has "exclusive" power over members of the judiciary and that
application of the conflict law violates Article XXX of the
Massachusetts Declaration of Rights. In Edgartowown, the court
found unpersuasive a municipal attorney's claim that the
application of the conflict law to his conduct as an attorney
violated Article XXX of the Massachusetts Declaration of Rights.
The Court held that the conflict of interest law did not
"contradict[], impair[] or otherwise affect[]" the judiciary's
disciplinary rules and, thus, was not an impermissible interference
with the functioning of the judiciary. Id. at 90. Where, as here,
the conflict ofinterest standards of conduct do not contradict,
impair or otherwise affect the canons of ethics, there is no
unconstitutional exercise ofjurisdiction.[11], As in the case of
a municipal attorney, a court judge may also be "properly regulated
by statute [ the conflict law ] as well as by rules promulgated by
[the] Court,"Id.[12]

The Supreme Judicial Court has already held that its authority
to establish standards of conduct does not preempt other
legislation "establishing complementary standards," Opinion of the
Justices, 375 Mass. 795,813 (1978) (addressing the application of
the financial disclosure law, G.L. c. 268B, to all judicial
department employees and officials, other than judges). Thus, it
follows that the existence of the Code of Judicial Conduct does not
and cannot preclude regulation of all judicial conduct arguably
covered by that Code; if it did, the Commission would be unable to
enforce that section of law prohibiting bribery, G.L. c. 268A, s.2,
or nepotism, G.L.c. 268A s.6, against a state judge. Respondent
does not dispute that judges may be subject to prosecution for
bribery and other crimes. In fact, the notion that the separation
of powers principle would insulate a judge from an executive branch
indictment and prosecution for criminal conduct already has been
unequivocally rejected. United States v, Issacs, 493 F.2d 1124 (7th
Cir. 1974), cert, denied, 417 U.S. 976(1974) Judges are not exempt
from the application of criminal laws, and, although it does not
contain criminal penalties, s.23(b) (3) is a general standard of
conduct applicable to all public employees, includingjudges.

The conflict of interest standards of conduct are consistent
with and complementary to the judicially imposed standards in the
Code of Judicial Conduct and are therefore permissible.[13]
Compare, Opinion of the Justlces, 375 Mass. 795,813-814 (discussing
the standards of the conflict of interest law and the Code of
Professional Responsibility). As we previously noted, supra at p.
12, the requirement of s.23(b) (3) is nothing more than a written
disclosure to one's appointing authority when a judge proposes to
act in a manner which would reasonably lead to an impression of
undue influence. It is difficult to imagine how such a requirement
could be viewed as anything but complementary, since it would
enable a supervising judge to apply the judicial canons when
appropriate. Indeed, we do not understand Respondent to claim that
the conflict law deprives the Court of the power to impose stricter
standards of conduct on judges or forces the Court to accept lower
standards. Id. at 795; Collins v. Gregory, 324 Mass. 574,576(1949);
United States v. Miller, 624 F.2d 1198 (3rd Cir. 1980). Yet, short

Page 338

of such a claim, the Respondent has not demonstrated a
constitutional defect in the application of s.23 of c. 268A on the
basis that it impermissibly "interferes with the internal
functioning of the judicial branch" and offends the principle of
separation of powers. New Bedford Standard Times Publishing Co. v.
Clerk of the Third District Court of Bristol, 377 Mass. 404,410-
111(1979).

Respondent's counsel also stated in oral argument that the
Commission should adopt the "doctrine of self restraint." The
Respondent's argument appears to be that the judiciary has primary
authority to address a judge's conduct, and accordingly, the
Commission should defer taking any action in this case. However,
the Commission is not inclined to defer on a question of conflict
of interest where, as here, the CJC proceeding is confidential and
the Commission has no knowledge that the CJC is reviewing the same
conduct as is the Commission. In fact, although Respondent's
counsel has indicated that the CJC is investigating certain
(unspecified) conduct of Respondent, the Commission has no way of
knowing how or when the CJC will resolve its investigation.

The Commission's action to proceed with this case in no way
diminishes or contradicts the judiciary's important function in
regulating the conduct of its own members. When previously faced
with a question of whether G.L. c. 268B was constitutionally
permissible as applied to all judiciary employees and officials,
other than judges, the Supreme Judicial Court stated that

The critical inquiry here is whether the requirements which the
proposed law would impose on attorneys and employees and officials
of the judicial department would interfere with the functions of
that branch of government. See Opinion of the Justices, 372 Mass.
883, 892(1977). Opinion of the Justices, 365 Mass. 639,641-
642(1974) There is nothing in the provisions to which the question
refers which would constitute an impermissible interference by the
legislative or executive branches with the functions of the
judicial branch. Although we have the authority by rule to
establish standards of conduct for judicial employees and
officials, as we have done for attorneys and judges, [footnote
omitted] this does not preclude legislation establishing
complementary Standards and providing administration and
enforcement through a commission whose decisions would be subject
to judicial review. [footnote omitted] See Burnnside v. Bristol
County Bd. of Retirement, 352 Mass. 481,482-483 (1967). As to
attorneys admitted to practice before the courts of the
Commonwealth, we retain the ultimate authority to control their
conduct in the practice of law. Collin v. Godfrey, 324 Mass.
574,576(1949). "Legislation," nevertheless, "may be enacted in aid
of the judicial department, and doubtless in appropriate instances
standards of conduct may be set up by statutes..." Id. If the
judicial department promulgates a rule imposing standards higher
than or in conflict with those imposed by the legislation, the
judicial rule would prevail. (footnote omitted] Id.

Opinion of the Justices, 375 Mass. 795, 813-14 (1978).


The same reasoning as articulated above supports the application
of s.23(b) (3) to judges. To decide otherwise would permit a
stricter standard of governing law for all judicial departments
employees and officials other than judges. In essence, such a
standard would hold judges above the law.

Separation of powers does not prohibit the enactment of
legislation which sets up standards ofconduct for the judiciary
provided that"... such statutes [do] not preclude the judicial
department from imposing higher standards or deprive that
department of its ultimate power of control." Collins v. Godfrey,
324 Mass. 574,576 (1949). We do not find that the standards of
conduct provisions of the conflict law work such a deprivation on
the court or divest it of its power of control. The power to
determine the appropriateness of the Commission's actions and
decisions always ultimately rests with the judiciary. G.L. c. 268B,
s.4(k); Opinion of the Justices, 375 Mass. at 813. Consequently,
in this and all other cases, the judiciary has the opportunity to
exercise ultimate review.[14]

V.Conclusion

For all the reasons set forth above, the Commission finds that
its exercise of jurisdiction is statutorily sound and
constitutionally permissible as applied in this case. The
Commission denies Respondent's Motion to Dismiss or For Judgment
on the Pleadings.



---------------

[1] Section 23(b) (3) of G.L c. 261A provides that:
No current officer or employee of a state, county or municipal
agency shall knowingly, or with reason to know... act in a manner
which would cause a reasonable person, having knowledge of the
reliant circumstances, to conclude that any person can improperly
influence or unduly enjoy his favor in the performance of his
official duties, or that he is likely to act or fail to act as a
result of kinship, rank, position or undue influence of any party
or person. It shall be unreasonable to so conclude if such officer
or employee has disclosed in writing to his appointing authority
or, if no appointing authority exists, disclose in a manner which
is public in nature, the facts which would otherwise lead to such
a conclusion.

[2] The Commission also found reasonable cause to believe that
Respondent violated G.L. c. 268B, 7 for filing a false statement
of financial interest which failed to disclose the financial
relationship between Respondent and the attorney whom he appointed
twenty eight times as a guardian ad litem. On September 24, 1987,
Respondent admitted that he violated this section of law in a
signed Disposition Agreement and, accordingly, paid a fine of
$1500. Respondent did not contest the Commsiaion's jurisdiction to
enforce G.L. c. 268B, s.7 against him.

[3] The Order to Show Cause and Respondent's Answer are attached
to this Decision as Exhibits A and B.

[4] Members of the judiciary were subject to G.L.c. 268A 2 and 3
(concerning bribery and the receipt of gratuities) by specific
inclusion.

[5] The 1986 amendment as paased by the General Court in response
to Saccone v. State Ethics Commission, 395 Mass. 326(1985) which
held that the conflict law did not give the Commission jurisdiction
over s.23 violations.

[6] Memorandum in Support of Respondent's Motion to dismiss (Re-
spondent's Brief) at s.14 However, it appears that the legislature
has given a number of agencies and commissions jurisdiction over
the conduct of judges (e.g.. the district attorney; Attorney
General. the Governor and

Page 339

General Court, State Ethics Commission, the judiciary and
Commission on Judicial Conduct all, to varying degrees, have the
power to regulate the conduct ofjudges). In addition, there is no
indication in the legislative history that there was any intent to
carve out an exception in the present law concerning the
application of s.23 to judges.

[7] Article XXX. In the government of this commonwealth, the legis-
lative department shall never exercise the executive and judicial
powers, or either of them: the executive shall never exercise the
legislative and judicial powers,or either of them; the judicial
shall never exercise the legulative and executive powers, or either
of them: to the end it may be a government of laws and not of men.

[8] G.L c. 201, 34 provides that:

If, under the terms of a written instrument or otherwise, a minor,
a mentally retarded person, an autistic person, or person under
disability, or a person not ascertained or not in being, may be or
may become interested in any property real or personal, or in the
enforcement or defense of any legal rights, the court in which any
action, petition or proceeding of any kind relative to or affecting
any such estate or legal rights is pending may, upon the
representation of any party there to or of any person interested,
appoint a suitable person to appear and act herein as guardian ad
litem or next friend of such minor, mentally retarded person,
autistic person, or person under disability or not ascertained or
not in being; and a judgment, order or decree in such proceedings,
made after such appointrnent, should be conclusive upon all persons
for whom such guardian ad litem or next friend was appointed.
[9] While technically a judge's appointing authority would be the
Governor, the Commission has already indicated to a member of the
judiciary (a district court judge) that, for the purposes of the
disclosure provisions of c. 268A, the Chief Justice of the Supreme
Judicial Court would appear to be the appropriate appointing
authority EC COI-83-117;84-28.

[10] The Commission is aware that G.l. c. 211C was recently
ammended by St. 1987, c. 656 By virtue of section 4 of St. 1987,
c. 656, the effective date of the amendments is April 1, 1988 and,
therefore, they do not affect this case.

[11] This conclusion is supported by a New Jersey Supreme Court
decision, Knight v. Margate, 86 NJ. 374(1981). There, the conflict
of interest law imposed stricter restrictions on members of the
judiciary than those contained in the state's Code of Judicial
Conduct. The Court upheld the legislatively imposed standards of
conduct because they were not incompatible with the Court rules.
In Pennsylvania, on the other hand, where the state constitution
specifically preempts certain legislative activity (e.g., the
regulation of attorneys), courts have concluded differently See,
Wajert v. State Ethics Commission, 420 A 2d 439 (Pa. 1980); see
also, Kramer v. State Ethics Commission, 469 A 2d 593,595 (Pa.
1983) (Where the Supreme Court of Pennsylvania held that it did
have the "exclusive" power to supervise the conduct of attorneys
and judges based on the state's constitution). Massachusetts'
Constitution does not preempt the activity at issue here.

[12] We do not accept Respondent's effort to distinguish the
Edgartown case on the basis that Respondent's actions were solely
as a judge and not as a public employee (whereas, Respondent
contends, the attorney in Edgartown acted in an identifiably
municipal capacity). Respondant argues that he was not representing
the interests of the state when be made the appointments in
question, but, was carrying out his duties as a member of the
judiciary." Respondent's Brief at 10. we find the "distinction"
neither accurate nor persuasive Respondent's public employee status
and identity as a judge are inseparable; Respondent is subject to
the laws governing both and may not insulate himself from one set
by claiming to be governed only by the other. If this distinction
had validity. Respondent's "public employee" self could eschew the
judicial canons by claiming to be responsible only to the conflict
law.

[13] Canon 2 of the Code of Judicial Conduct, adopted as Rule 3:09
of the Supreme Judicial Court, provides that (a) A judge should
respect and comply with the law and should conduct himself at all
times in a manner that promotes public confidence in the integrity
and impartiality of the judiciary. (b) A judge should not allow his
family, social or other relationships to influence his judicial
conduct or judgment. He should not lend the prestige of his office
to advance the private interests of others; nor should he convey
or permit others to convey the impression that they are in a
special position to influence him. He should not testify
voluntarily as a character witness.

[14] Commissioner Jarvis, while concurring in the majority's
decision that the Commission possesses the authority to consider
allegations against Respondent, concludes that authority possessed
must be distinguished from authority exercised. On the grounds of
both administrative efficiency and the principle of restraint,
Commissioner Jarvis concludes that the Commission should defer
action in light of the CJC's proceeding.