Opinion  Opinion 2005-2

Date:	03/28/2005
Organization:	Massachusetts Supreme Judicial Court

Ethical Opinions for Clerks of the Courts

Labor negotiator for a town

This is in response to your letter of February 18, 2005 requesting an opinion from the Committee. In your letter you state that you will soon be sworn in as an Assistant Clerk-Magistrate in the District Court. For more than 25 years, you have been the Labor Negotiator for a public school system in Massachusetts. Your current contract for this position expires on June 30, 2005 and you have asked the Committee whether your completion of this contract would be consistent with the Code of Professional Responsibility for Clerks of the Courts. You have indicated that your initial assignment as Assistant Clerk-Magistrate (for approximately one month) is in a different county from the county where the school system is located.

Your letter states that you represent the school district in collective bargaining with its public employees, including but not limited to, teachers, custodians and secretaries. You note that the position of Labor Negotiator is not required to be held by an attorney. It involves infrequent Arbitration Hearings before the American Arbitration Association as well as infrequent hearings before the Massachusetts Labor Relations Commission and possibly the Massachusetts Commission Against Discrimination. The bargaining sessions are conducted in the evenings and the salary for the position is a flat sum for a one year period. You note in your letter that having reviewed the Code of Professional Responsibility for Clerks of the Courts, you have serious concern as to whether you may continue to serve as Labor Negotiator.

In the view of the members of the Committee, your continued service as Labor Negotiator would be problematic under the Code. As the Committee has stated previously, the purpose of the norms of conduct and practice set out in the Code, as articulated in Canon 1, is to "contribute to the preservation of public confidence in the integrity, impartiality, and independence of the courts." See Opinion 2003-10 . The principles of impartiality that underlie all the Canons, and Canons 4 and 5 in particular, are directed to both actual and perceived impartiality. The introduction to Canon 4 notes that "A Clerk-Magistrate shall perform the duties of Clerk-Magistrate impartially and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judicial branch of government." Canon 4(B) further states that "...A Clerk-Magistrate shall not engage in outside activities which would cast doubt on his or her capacity to decide impartially any issue that may come before the Clerk-Magistrate in any official capacity."

The provisions of Canon 5 also govern the outside activities of Clerk-Magistrates and are intended to reduce the risk of conflict between a Clerk-Magistrate's official and personal activities. This Canon requires a Clerk-Magistrate to regulate outside and personal activities to minimize the risk of conflict with official duties.

In the opinion of the members, work as a Labor Negotiator is not consistent with the impartial role to be performed by a Clerk as described in the Canons. As Labor Negotiator, you would be acting as an advocate for the town on a variety of issues. Such advocacy can be perceived as inconsistent with the neutral role to be discharged by a Clerk. Although the town you serve is not within the jurisdiction of the court where you are currently assigned, your assignment is temporary and you may be assigned to a court whose jurisdiction includes the town of ______. In any event, issues arising in the town of ______ may also be present in towns within the jurisdiction of the court where you work. Your identification with a position on those issues could compromise, or give the appearance of compromising, your impartiality. Thus, even if you continue to work in a court that does not include the town of ______ within its jurisdiction, it is the view of the Committee that the duties of Labor Negotiator, which are advocacy related, and can include hearings before the American Arbitration Association, the Labor Relations Commission and the Commission Against Discrimination, are not compatible with the impartial role required of a Clerk-Magistrate.