Opinion  Opinion 2009-3

Date:	03/20/2009
Organization:	Massachusetts Supreme Judicial Court

Ethical Opinions for Clerks of the Courts

Receiving an Award and Fundraising

Dear Clerk:

This is in response to your letter seeking the Committee's advice on the following situation. You are the Clerk of the _________ Court. You have been nominated to receive an award from the ________ Club of _________, (the town in which the court where you work is located). You state that the Club is a "worldwide service organization working to improve the legal, political, economic, educational, health and professional status of women through service and advocacy." Your letter further states that the Club raises funds and provides volunteer service for local projects, including "scholarships to young women entering college or women reentering the work force and provide assistance to victims of domestic violence and their families."

You have inquired whether your acceptance of an invitation to be one of three women in the community to be honored at the Club's 80th anniversary dinner is permissible under the Code of Professional Responsibility for Clerks of the Courts. Tickets for the dinner cost $45.  In response to questions from the committee, you told the Secretary that all proceeds from the event would go to scholarships and other projects selected by the organization.

Canon 5(B) of the Code addresses a clerk's involvement with civic and charitable activities. Such involvement is generally permissible unless an activity reflects adversely on a clerk's impartiality or interferes with the performance of official duties. Canon 5(B) has two additional limitations on a clerk's service in a civic or charitable organization. Under Canon 5(B)(1), a clerk may not participate if there is a substantial likelihood that the organization or a significant number of its members will be engaged in proceedings that would come before the clerk or the court in which the clerk serves. Canon 5(B)(2) addresses fund raising, and allows a clerk to solicit funds but prohibits the clerk from using the prestige of the clerk's office in doing so. This section also states that "A Clerk-Magistrate shall not be a speaker or the guest of honor at an organization's fund raising event."

We consider first the general language in Canon 5(B). This language would allow you to participate in Club activities unless they interfere with your impartiality or unless the Club or its members frequently appear in the court where you work. In Opinion 99-4 we advised a clerk that although a homeless and battered women's shelter was a valuable benefit to the community, service on the board could be viewed as implicating the clerk's impartiality. Under Canon 5(B), you could not attend the dinner if doing so would suggest that recipients of the Club's funds, such as victims of domestic violence, would be in a special position to influence you or others in the court where you work. In our view, your attendance at an anniversary dinner would not in itself give rise to such a suggestion.     

We turn next to the language of Canon 5(B)(2) (1) .  This section provides:

(2) A Clerk-Magistrate may solicit funds for any educational, religious, charitable, fraternal, or civic organization, but shall not use or permit the use of the prestige of the office for that purpose or solicit his or her staff for that purpose... A Clerk-Magistrate may attend but, except for an elected Clerk-Magistrate, shall not be a speaker or the guest of honor at an organization's fund raising event...."

If the anniversary dinner is a fund raiser for the Club, the prohibition against using the prestige of your office, and appearing as a guest of honor would be applicable.

This committee previously has not had an occasion to define the term fund raising event. The Committee on Judicial Ethics has advised judges that an event in which tickets are priced to exceed the costs of the function itself is a fund raising event (See CJE 2009-1 ) and we think that definition is equally applicable to the term as used in the Clerk's Code.  Therefore, to the extent the Club's aim is to raise money to support the Club's activities beyond the dinner, we believe the dinner would be a fund raiser. Your being honored with an award would make you a guest of honor at the dinner. If this were the case, the announcement of your name as an honoree could serve as an inducement for some to purchase tickets, leading to an unintentional violation of Canon 5(B)'s prohibition on lending the prestige of your office in raising funds.

In sum, if the ticket proceeds for the Club's anniversary dinner exceed the dinner's costs and generate funds for the Club's programs, the dinner is a fund raiser. In those circumstances, it is our view that Canon 5(B)(2) would bar your attending to receive an award. If the event is not a fund raiser, you may attend and accept the award if you comply with the other provisions of Canon 5(B), i.e., your attendance does not reflect adversely on your impartiality, and the Club or its members do not frequently appear in the ________ District Court.   

(1) In our view, the language in Canon 5(B)(2) does not just address the nature of a Clerk's service as an officer, director, trustee, or advisor of an organization.  We believe the language contains general limitations that apply to fundraising.