Opinion  Opinion 2014-5

Date:	12/22/2014
Organization:	Massachusetts Supreme Judicial Court

Ethical Opinions for Clerks of the Courts

Restrictions on post-retirement employment before retiring

Dear  _________:

This letter is in response to your email dated November 20, 2014.  You are a Clerk-Magistrate in the ___________ Court. You inquire in your email whether there are any restrictions on your applying for post-retirement employment before you retire. The Committee interprets your email as a request for an advisory opinion regarding how the provisions of the Code of Professional Responsibility for Clerks of the Courts (Code) bear on your job search. You have not provided any details as to the type of work that you are applying for so our advice is limited to the general rules of the Code.

The Committee has issued many opinions that state that Canon 4 of the Code entitled “Impartiality and Disqualification” requires clerks to be, and to appear to be, impartial. See Opinion No. 2013-1. The Committee has further stated that “the appearance of impartiality is as important as actual impartiality.”  See Opinion No. 2006-2. The Code prohibits a clerk from entering into a business relationship that might create a conflict of interest.  Specifically, Canon 4 (C) provides that “A Clerk-Magistrate shall not enter into any business relationship which reasonably might create a conflict with the proper performance of his or her official duty or detract from the dignity of the office. A Clerk-Magistrate shall not use the influence of the office to promote his or her business interests or those of others.”  

While you have not provided details of the type of work that you seek, there may be some positions, for example, those at a law firm, that could create a conflict of interest or be perceived as using the influence of your office while you are still employed as Clerk-Magistrate. In such cases, disqualification pursuant to Canon 4 (E) may or may not be adequate to address the conflict or appearance of impropriety. There may be other examples of jobs that could potentially create a conflict or the appearance of impropriety while you are still employed.

Although the circumstances of your job search may be relevant in considering its propriety under the Code, certain Code provisions are applicable irrespective of the type of employment you seek. You may not use court time or resources in furtherance of your job search. See Canon 3 (“A Clerk-Magistrate shall devote the entire time during normal court hours to the duties of his or her office . . . .”)

Canon 4 (E) Disqualification provides that “A Clerk-Magistrate should disqualify himself or herself from serving in an adjudicative capacity in a proceeding in which the Clerk-Magistrate's impartiality might reasonably be questioned.”  It is the opinion of the Committee that if you are applying for a job that could raise the question of your impartiality, you should follow the procedure for disqualification detailed in Canon 4 (E).

The Committee's authority in this advisory opinion is confined to the interpretation of the Code. The Committee has not considered whether the provisions of the Conflict of Interest Law of the Commonwealth or the Trial Court's Personnel Policies and Procedures Manual have a bearing on your request.   

Sincerely,
Christine P. Burak, Esq.
Secretary, Advisory Committee on Ethical Opinions