Opinion  EC-COI-84-145

Date:	12/20/1984
Organization:	State Ethics Commission

A District Court First Justice is advised that court procedures clerks are prohibited by § 4 of the conflict of interest law from collecting bail fees from criminal defendants after the normal business hours of the court because they are not authorized to do so by G.L. c. 276, § 57.

Facts

You are a justice of the District Court Department of the Trial Court of the Commonwealth. As the first justice of the ABC Division of the Department, you are the administrative head of that division and of its personnel, pursuant to G.L. c. 211B, § 10 and G.L. c. 218, § 6. Among the types of personnel employed in your division are clerks, assistant clerks, and courtroom procedures clerks. Clerks and assistant clerks are positions created and provided for by statute. In contrast to these positions, courtroom procedures clerks are not statutorily established positions. The procedures clerk position is essentially a clerical one which pays a lower salary, and which does not carry with it the same authority that clerk and assistant clerk positions have.

Pursuant to G.L. c. 276, § 57, clerks and assistant clerks are authorized to collect bail from persons who have been arrested for committing criminal offenses.^[1] That section also provides for the appointment by justices of the superior court of special bail commissioners who are authorized to collect bail from criminal defendants. These bail commissioners perform their services when the courts are not in session, and they are permitted by court rules to collect a set fee for their services from any defendant they admit to bail.

Question

Does G.L. c. 268A permit courtroom procedures clerks to serve as bail commissioners, pursuant to G.L. c. 276, § 57?

Answer

No.

Discussion

Courtroom procedures clerks are state employees as that term is defined in G.L. c. 268A^[2] and as such are subject to the provisions of that statute. The section of the law applicable to the question you have asked is § 4. Section 4 provides, in pertinent part, that no state employee shall, otherwise than as provided by law for the proper discharge of official duties, directly or indirectly receive or request compensation^[3] from anyone other than the Commonwealth in connection with a particular matter^[4] in which the Commonwealth or a state agency is a party or has a direct and substantial interest. In EC-COI-83-143^[5] the Commission addressed the question of whether a full-time state employee could also serve as a bail commissioner. Its conclusion was that such an arrangement was prohibited by § 4 for the following reasons. First, the fee received by bail commissioners constitutes compensation originating from someone other than the Commonwealth or a state agency, specifically the defendant. Second, the bail commissioner's fee is received in connection with a particular matter, in this case an arrest, judicial proceeding or determination. Third, the Commonwealth is a party and has a direct and substantial interest in the matter because it involves an arrest pursuant to a violation of the state's criminal laws, and any ensuing judicial proceedings would be brought by the Commonwealth against the defendant. Last, the Commission concluded that the fee was not provided for by law for the proper discharge of official duties since it was not being received by the bail commissioner in connection with the duties, he performed in his full-time state job. In terms of whether the fee in question is provided for by law in the proper discharge of official duties in the facts you have presented, it is clear from a reading of G.L. c. 276, § 57 and the accompanying rules that courtroom procedures clerks are not specifically authorized to do so in the performance of their duties, Therefore, the Commission concludes that a courtroom procedures clerk's receipt of a fee for acting as a bail commissioner would constitute a violation of G. L. c. 268A, § 4.

End Of Decision  

^[1] Although G.L. c. 276, § 57, in listing those people who are authorized to take bail, states that district court clerks are permitted to do so, the "Rules Governing Persons Authorized to Take Bail" promulgated by the superior court indicate that district court clerks and assistant clerks are authorized to do so.

^[2] For purposes of G.L. c. 268A, "state employee" is defined in relevant part a person performing services for or holding an office, position, employment, or membership in a state agency, whether by election, appointment, contract of hire or engagement, whether serving with or without compensation, on a full, regular, part-time, intermittent or consultant basis, including members of the general court and executive council. G.L. c. 268A, § 1(q).

^[3] For purpose of G.L. c. 268A, "compensation" is defined as any money, thing of value or economic benefit conferred on or received by any person in return for services rendered or to be rendered by himself or another. G.L. c. 268A, § 1(a).

^[4] For the purposes of G.L. c. 268A, "particular matter" is defined as any judicial or other proceeding, application, submission, request for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest, decision, determination, finding, but excluding enactment of general legislation by the general court and petitions of cities, towns, counties and districts for special laws related to their governmental organizations, powers, duties, finances and property. G.L. c. 268A, § 1(k).

^[5] This citation refers to a previous Commission advisory opinion including the year it was issued and its identifying number. Copies of this and all other advisory opinions are available for public inspection, with identifying information deleted, at the Commission offices.