Opinion  Opinion 2003-6

Date:	08/05/2003
Organization:	Massachusetts Supreme Judicial Court

Ethical Opinions for Clerks of the Courts

Attending testimonial dinner to honor state representative

Dear Clerk:

This letter is in response to your letter of July 3, 2003 requesting an opinion from the Committee. In your letter, you state that you have been invited to attend a testimonial dinner to honor a State Representative for his twenty-five years of public service. Tickets will be sold at $30.00 per person, with all proceeds in excess of actual dinner costs to be contributed to an existing charity. You are not a member of or current contributor to that charity. Further, you state that none of the funds raised would be contributed to the Representative's election committee.

You have inquired as follows:

1. Would ethical problems be raised if you personally bought one or more tickets to the testimonial dinner?
2. Would it be appropriate to attend the dinner knowing that you would be introduced and identified as the Clerk Magistrate of the Court?
3. Would it be appropriate to attend the dinner and, having been so identified, speak at the dinner to publicly honor the Representative.
4. If the Answer to Question 1 is "yes", but the Answer to Question 3 is "yes", would ethical problems be raised to attend the dinner where the cost of your attendance was paid for by another?

As to the first question, the Committee has determined that there is no prohibition under the Code of Professional Responsibility to your personally paying for one or more tickets to the testimonial dinner, and that under the circumstances you describe in your letter, your attendance would not be in violation of the Code. On previous occasions, the Committee has noted that a Clerk-Magistrate's attendance at an event depends on the facts regarding the nature of the function. Among the factors that influenced the Committee's view in this case are that the dinner is not a political fundraising event and that the proceeds from the event will be contributed to charity.

As to the second question, in our view, your knowing that you might be introduced by someone else as the Clerk-Magistrate does not make it inappropriate for you to attend the dinner.

As to the third question, while it would not be inappropriate for you to attend the dinner, Canon 5(B)(2) states that a Clerk-Magistrate "may attend but, except for an elected Clerk-Magistrate, shall not be a speaker ... at an organization's fundraising event." In addition, Canon 6 of the Code requires that Clerks, other than elected Clerks, refrain from political activity. In particular, Clerks are prohibited from making speeches or publicly endorsing a candidate. In deciding whether attendance at an event is appropriate under Canon 6, a Clerk must consider whether the purpose of the event is chiefly political and therefore the Clerk's attendance would be viewed as a public endorsement of the political figure, or whether there is some other purpose for the event. In this instance, while it appears that there is another purpose (a testimonial, the benefit of which is to raise funds for a charity), you would not be permitted to make a speech or verbal presentation under the edict of Canons 5 and 6. See, by way of example, Opinion 90-1 .

As to the final question, since the answer to Question 1 was "no" (that is, that an ethical problem would not be raised if you personally bought one or more tickets to the testimonial dinner), and the answer to Question 3 was, in material part, "no", then we do not reach the question that you asked. However, the Committee urges you to take note of Canon 4 of the Code which prohibits a Clerk-Magistrate from engaging in activity that interferes with the appearance of impartiality. If the cost of your attendance was paid for by another person or entity, Canon 4 could be implicated and your attendance prohibited. We hope that the foregoing is of assistance.