Opinion  Opinion 2010-3

Date:	05/16/2010
Organization:	Massachusetts Supreme Judicial Court

Ethical Opinions for Clerks of the Courts

Serving as President of Civic Association

Dear Assistant Clerk:

This is in response to your inquiry of April 29, 2010.  You are an Assistant Clerk-Magistrate in the ______ Court.   You are currently on the Board of a civic association located in the same city as the court where you work.  You have been asked to run for the office of president of the association.  You believe that given the level of interest, it is likely that you would become the next president if you ran for the position.  You inquire whether holding that office would be appropriate under the Code of Professional Responsibility for Clerks of the Courts.  

In your request, you state that the civic association acts as a sounding board for all local matters such as new building and housing concerns, local construction issues, youth programs, elderly programs, local crime news, etc.  Meetings include presentations from local police community service officers on criminal activity and ways for residents to protect themselves; debates on proposed variances for building construction or change of use of buildings; and reports on development in the area of the association.  Business owners may also report on the benefits of their business in connection with variances they are pursuing.  The members of the association vote on whether to send a recommendation regarding variances to the Zoning Board of Appeals.  You state that you are not aware of any involvement between the association and the courts.

Canon 5(B) of the Code addresses a Clerk's participation in civic and charitable activities.  Such activity is generally permissible if it does not "reflect adversely on the Clerk-Magistrate's impartiality or interfere with the performance of his or her official duties."  This Canon allows a  Clerk-Magistrate to "serve as an officer, director, trustee, or non-legal advisor of an educational, religious, charitable, fraternal, or civic organization not conducted for the economic or political advantage of its members, subject to the following limitations:

(1) A Clerk-Magistrate shall not participate if there is a substantial likelihood that the organization , or a significant number of members of the organization, will be engaged in proceedings that would ordinarily come before the Clerk-Magistrate or the court in which the Clerk-Magistrate serves.

(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 be listed as an officer, director or trustee of such an organization."

It is the view of the committee that your serving as president of the association is permissible under the Code.   As noted above, Canon 5(B)(1) restricts participation in civic or charitable activities if an organization or a significant number of its members will be engaged in proceedings that would come before the court.   Because zoning matters are not heard in the court where you work, this canon does not prohibit your service.   Given that you are not aware of any involvement between the association and the court, your service as president will not impede your ability to function in an impartial manner in your role of Assistant Clerk-Magistrate.  See Opinions 2003-3 , 94-5 , 94-12 .   Provided that you comply with the limitations in Canon 5 quoted above, and comply with the requirement of Canon 3 that Clerk-Magistrates devote their time during court hours to the duties of their office, you may, if elected, hold the office of president of the association.

Should the association, its members , businesses, community service officers or others who appear at the meetings of the association come before the court where you work, you should consult and comply with the provisions of Canon 4(E) regarding disqualification.