Opinion  CJE Opinion No. 2005-6

Date: 08/12/2005
Organization: Massachusetts Supreme Judicial Court

After the Committee on Judicial Ethics issued this opinion, the Massachusetts Supreme Judicial Court adopted a revised Code of Judicial Conduct. Because this opinion was rendered under a prior version of the Code, a judge should not rely on it without contacting the Committee on Judicial Ethics.

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Committee on Judicial Ethics

Table of Contents

Serving as a "Call Firefighter" in Town Where Judge Resides

You have asked this committee whether your serving as a so-called "call firefighter" in your town would be a violation of the Code of Judicial Conduct.

You are a judge in a court located in a county different from, and at a distance from, the county in which you live. Your town is served by four full-time firefighters who are stationed at the town's fire headquarters from Monday through Friday. An additional group of part-time, on-call personnel supports the needs of the fire department, primarily during evenings and weekends.

Call firefighters in your town are modestly compensated at an hourly rate for time spent responding to emergency calls. They are also compensated for attending approximately fifty hours of training each year.

In addition, call firefighters are not required to respond to alarms. Response is strictly voluntary and based on one's availability. You indicate in your letter: "In no event would my availability be required, or even expected, during the day or at any other time I am fulfilling my obligations to the trial court. It is virtually inconceivable that my ability to carry out my duties as a trial court judge would ever be compromised by my call firefighter status."

Section 4 C (2) of the Code prohibits a judge from accepting "appointment to any governmental position, including a governmental committee or commission, that is concerned with matters other than the improvement of the law, the legal system, or the administration of justice." While the town fire department is a governmental body, and while you would be appointed by the fire chief -- making it seem, if the Code were read literally, that your serving as a call firefighter would be prohibited -- the Code must be read as a whole, and the policies behind the various Code provisions cannot be ignored. The Code preamble (fourth par.) specifically indicates that "[t]he Canons and Sections are rules of reason. Some conduct that may literally violate a provision of this Code will be permissible because it does not violate the policy behind the prohibition or is de minimis."

The policy reason for the prohibition in Section 4 C (2) is that it would be improper for a judge to participate in a governmental body, committee, or commission that sets public policy, has a political agenda, or advocates positions that may have an impact on matters requiring judicial resolution. See also Sections 2 A, 2 B, 3 B, 4 A, and 5 A. The prohibition against holding extrajudicial government positions seems not to be intended to encompass membership in a low level, non-policymaking entity that is unlikely to involve the judge in matters that might come before him or her, that is designed to serve the community as a whole, and that is not something that would interfere with judge's proper performance of his or her judicial duties.

The town fire department is not a governmental body that sets public policy or has any specific political or sociological agenda, nor does it advocate positions. It is not a governmental commission, board, or committee per se. Your becoming a call firefighter appears to the committee to be more comparable to serving as a volunteer for a nonprofit organization, which is permitted in certain circumstances and subject to certain restrictions -- see generally the discussions in CJE Opinion Nos. 98-7, 2000-9, and 2002-18 -- than serving as an officer or director of a governmental advisory council, which is not permitted -- see CJE Opinion No. 2002-18. Your involvement as a call firefighter appears to be something that would benefit your community as a whole, as well as protect your own property.

Provided you were not chosen to participate because of your position as a judge, i.e., if anyone who is interested and qualified can volunteer and be considered, and so long as you remain mindful of the requirements and restrictions of Section 4 C (3) applicable to a judge's participation in civic and charitable organizations, your serving as a call firefighter would not be prohibited by the Code.

Regarding the proposed compensation for your services, the committee concludes that the circumstances and amount involved would not violate Section 4 H of the Code. You would, of course, be required to report this extrajudicial income pursuant to Section 4 H (2). That said, you may also wish to verify with the State Ethics Commission that there are no other (non-Code) obstacles to your simultaneously receiving compensation from the town, as a call firefighter, and from the Commonwealth, as a judge. See, e.g., G. L. c. 268A, §§4 & 7. It is beyond this committee's authority to advise you on that question.

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