Opinion

Opinion EC-COI-84-127

Date: 11/08/1984
Organization: State Ethics Commission

A justice of the District Court Department of the Trial Court of the Commonwealth may not be identified in a television advertisement as a member of the judiciary by an advertising agency that is producing an advertising campaign for a Corporation.

Table of Contents

Facts

You are a justice of the District Court Department of the Trial Court of the Commonwealth.  The son of a friend of yours is employed by an advertising agency that is producing an advertising campaign for a Corporation.  The son has asked if he can use your name in one of the television advertisements.  You would be identified in the advertisement as a member of the judiciary.  The advertisement would be shown only in the New York area, and you would not be paid for the use of your name.

Question

May you, consistent with G. L. c. 268A, allow a commercial entity to use your name in one of its advertisements?

Answer

No.

Discussion

Justices of the District Court Department are "state employees" for purposes of G. L.  c. 268A inasmuch as they perform services for a state agency within the meaning of G. L. c. 268A, §1(p).l  For purposes of the question you have posed, the relevant section of G. L. c. 268A is §23.  Section 23 contains general standards of conduct applicable to all state, county and municipal employees, and it deals not only with actual conflicts of interest but also with the appearance of such conflicts.  Section 23 serves to supplement the other provisions of G. L. c. 268A, and it generally is applicable when there is any sort of overlap between personal and public interests.  In particular, §23(¶2)(2) provides that no state employee shall:

"use or attempt to use his official position to secure unwarranted privileges or exemptions for himself or others."

The Commission concludes that this paragraph prohibits your proposed activity.

In  previous opinions construing §23(¶2)(2), the Commission has focused its inquiry on two criteria; (1) whether the activity or conduct  in question exceeds the customarily expected  use of a public employee's office, and (2) whether the activity or conduct benefits a private or personal, as distinct from a public interest.2  Applying these principles to the facts you have presented, the use of your name in an advertisement for a commercial entity's product is not conduct or activity which is customarily expected of members of the judiciary.  Additionally, the use of your name clearly would be benefiting a private interest.  The Commission addressed a situation somewhat analogous to yours in EC-COI-83-82.  There, the head of a state regulatory agency had been asked to appear in a film written and produced by a private individual as a profit-making venture.  The subject matter of the film involved the area regulated by the agency.  The Commission concluded that the agency head could participate only as long as his appearance did not create the impression that the film was state-sponsored, and as long as he avoided using any laudatory language which might be interpreted as an endorsement of the film.  His participation was limited to statements directed to the topic of the law in general and the field it regulates rather than the merits of the film.  Creating the impression of state endorsement of a private money-making project would have constituted a violation of §23(¶2)(2).  The facts you have presented can be distinguished from the foregoing in that although the agency head would have been lending the prestige of his office to a private venture merely by appearing in the film, his participation was limited to those things which might be customarily expected by an agency head, i.e. certain public  relations activities in connection with the agency and its work.  There is no such connection in your situation between your judicial functions and the business of the Corporation.  Furthermore, members of  the judiciary are expected by the public to assume and maintain a neutral posture in their official activities as well as some of their private activities.  "Unquestionably a judge is entitled to lead his own private life free from unwarranted intrusion.  But even there, subjected as he is to constant public scrutiny in his community and beyond, he must adhere to standards of probity and propriety higher than those deemed acceptable for others. More is expected of him, and since he is a judge, rightfully so."  In the Matter of Troy, 364 Mass. 15, 71 (1973).

Thus, the Commission concludes that the lending of the prestige of your office to the Corporation for the purpose of its selling its own products constitutes an unwarranted privilege to the Corporation.  The appearance of your name and identity in the commercial might, in the eyes of some viewers, imbue the Corporation's product with a degree of credibility it might not otherwise have. There is no reason why the Corporation should be the beneficiary of such an impression.  The facts that the advertisement would be shown only in the New York area and that you would not be paid for the use of your name do not alter the result.  The unwarranted privilege is conferred on the Corporation merely by allowing it to use your name.

The standards contained in §23 generally and §23(¶2)(2)) in particular are complementary to the text and purposes of the Code of Judicial Conduct.  Knight v. Margate, 86 N.J. 374 (1981).  EC-COI-84-27.  Canon 2(B) of the Code provides that a judge " . .. should not lend the prestige of his office to advance the private interests of others."  Permitting your name to be used in an advertisement for a Commercial entity's product would appear to be the type of activity proscribed by Canon 2.

  1. G.L. c. 268A, §l(p) defines “state agency” as any department of a state government including the executive, legislative or judicial, and all councils thereof and  thereunder, and any division, board, bureau, commission, institution, tribunal or other instrumentality within such department and any independent state authority, district, commission, instrumentality or agency, but not an agency of a county, city or town.
  2. See e.g. EC-COI-82-112 (prohibiting members of the General Court from using state supplies and personnel in furtherance of their private interests); EC-COI-83-87 (prohibiting members of the General Court from receiving excessive travel reimbursements pursuant to speaking engagements before private organizations.  Contrast  EC-COI-83-102 which held that a member of the General Court may sign a letter used to solicit gifts  from local  merchants for a raffle that is part of a voter registration drive.  This result was based on the Commission's conclusion that such an endorsement was within the range of activities customarily expected of legislators.  (These citations refer to previous conflict of interest opinions issued by the Commission including the year they were issued and their identifying numbers.  Copies of these and all other advisory opinions with identifying information deleted are available for public inspection at the Commission's offices.)
  3. See e.g. U.S. v. Curtis, 644 F.2d. 263. 273. (3rd Cir. 1981) and Woodruff v. Tomlin, 593. F.2d. 33, 42 (6th Cir. 1979) addressing the problems inherent in members of the judiciary appearing as character witnesses in court proceedings.

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