Opinion  Opinion 2003-8

Date:	12/15/2003
Organization:	Massachusetts Supreme Judicial Court

Ethical Opinions for Clerks of the Courts

Serving on town Zoning Board of Appeals

Dear:

This letter is in response to your request of October 15, 2003 for an opinion from the Committee. You are the First Assistant Clerk-Magistrate of the District Court. You have inquired whether it is permissible under the Code of Professional Responsibility for Clerks of the Courts for you to serve on the town of Zoning Board of Appeals ("ZBA"). Since 1997, you have served as an appointed, unpaid member of the ZBA.

You note in your letter that the town of is within the jurisdiction of District Court. Applications for criminal complaints for violations of the Building Code and applications for civil enforcement of the Building Code are within the jurisdiction of your Court. Likewise, other town of criminal complaints are within your Court's jurisdiction. You indicate that about six (6) or seven (7) of the building code applications for criminal complaint or civil enforcement are filed each year in the District Court. You mention that you recuse yourself from hearing these matters because the Chief Building Inspector and Code Enforcement Officer attend ZBA meetings.

Pursuant to G. L. c. 40A, s. 17, appeals from a decision of a zoning board may be brought in Superior Court, Land Court, or a District Court. You indicate that you personally could not recall any appeals from a zoning board decision during your 30-year tenure as a Clerk. A check of your court files disclosed only two ZBA appeals, in June, 1990 and January, 1992, with the ZBA and ZBA, respectively. You further mention that these zoning matters were not and would not be within your area of responsibility in the District Court.

You ask whether your service on the ZBA violates any of the Canons of the Code of Professional Responsibility for Clerks of the Courts. We construe your request as inquiring whether it would be permissible to serve on the ZBA, a governmental committee, given that its zoning appeals fall within the statutory jurisdiction of District Court.

With respect to your ZBA activities you must be cognizant that Canon 5 regulates outside activities "to minimize the risk of conflict with official duties". Canon 5(E) states in pertinent part:

"[A] Clerk-Magistrate shall not accept appointment within the geographical jurisdiction of the court in which he or she serves to a governmental committee, commission, or other governmental position if there is a substantial likelihood that matters involving that committee, commission or other governmental position will come before the Clerk-Magistrate or the court in which the Clerk-Magistrate serves".

G.L. c. 40A, s.17 statutorily provides for appeals from the ZBA to be filed in District Court. While you note that there have been few ZBA appeals during your tenure, it is relevant that the jurisdiction of your District Court allows for these ZBA appeals. Under Canon 5(E), the fact that you might recuse yourself from these matters does not alter the fact that these matters are under your court's jurisdiction. It is impossible to determine whether an aggrieved party's choice of forum for these zoning appeals may be influenced by your dual roles as First Assistant Clerk-Magistrate and ZBA member. The substantial likelihood that a zoning appeal may be filed in District Court is enough to preclude your membership on the ZBA that is situated within the geographical jurisdiction of the Court in which you serve. (cf. Opinion 97-5 , where service on a ZBA was not prohibited when ZBA was not within jurisdiction of court where clerk worked.) Based upon the foregoing information, it is the Committee's opinion that your service on the Braintree ZBA would not be appropriate under Canon 5 which regulates outside activities.

As noted earlier, matters involving the Chief Building Inspector and Code Enforcement Officer regularly come before the District Court. Although you recuse yourself from these matters, the provisions and obligations of Canon 4 are still relevant. Canon 4 requires a Clerk-Magistrate to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judicial branch of government. As a ZBA member you are connected with the town of , and Canon 4 requires that you not convey the impression that any person is in a special position to influence the Clerk-Magistrate. Canon 4 requires that there be an appearance of impartiality not only with the Building Inspector and Code Enforcement Officer, but also with any other town of employees, including those police department employees who appear before you in applications for criminal complaints. The Committee is concerned that your position on the ZBA could erode that appearance of impartiality. You should be mindful of the principles of impartiality and appearance of impartiality that underlie Canons 4 and 5.