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Ethical Opinions for Clerks of the Courts
This letter is in response to your request dated December 1, 2016, seeking an advisory opinion as to whether it is permissible pursuant to the Code of Professional Responsibility for Clerks of the Courts for you to share in an ownership of a seasonal restaurant business. The restaurant is on the beach in the town of __________ which is within the jurisdiction of the _______________ Court where you are ______________. In response to the Committee's request for additional information, you stated that the current owners of the restaurant also own a restaurant and sandwich shop in another jurisdiction, and that the town owns the building, beach and parking lot, but the concession stand is owned independently. The business is open from Memorial Day to Labor Day and is focused on providing employment opportunities for teenagers and a full family experience for the community. You stated that you anticipate performing maintenance duties on the concession stand and deck, maintaining work schedules, and assisting wherever needed.
In considering all of the various aspects of your request, the Committee focused on the substantive parts of the following Canons:
Canon 5(C) (1), Financial Activities: "A Clerk-Magistrate shall not conduct outside business during normal court hours and shall refrain from financial and business dealings that tend to reflect adversely on the Clerk-Magistrate’s impartiality, interfere with the proper performance of the position or involve transactions with lawyers or other persons likely to come before the court in which the Clerk-Magistrate is serving."
Canon 4(B), Personal Affairs: In relevant part: "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"; and
Canon 4(C), Business Activities: "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."
Although you indicate that you would be part of a private business ownership, the fact that the beach, building, and parking lot are owned by a town within the jurisdiction of the court where you work could create issues regarding impartiality, whether real or perceived. There is a substantial likelihood that representatives of the town could frequently come before your court with matters such as police applications for complaints and arrests, small claims, summary process and code violation cases. Your financial interest in the restaurant could raise questions regarding your impartiality because the restaurant is located on property owned and managed by a town within your court's jurisdiction.
In Opinion 2013-1, the Committee opined that an Assistant Clerk working part-time for and receiving compensation from a town that regularly appears in criminal cases before the court where the Assistant Clerk works could reasonably be perceived as compromising the impartiality of the clerk in proceedings involving the municipality. In previous decisions, the Committee has often stated that the appearance of impartiality is as important as actual impartiality.
The Committee notes that the restaurant creates an opportunity for employing teenagers and a family friendly environment. However, you would be a visible presence at the restaurant and patrons of the establishment may come before the court frequently which could give rise to questions regarding your impartiality. Although you would not be compensated directly by the municipality, the fact that you have a financial interest in a property owned by the jurisdiction in which you serve is problematic. It is the opinion of the Committee that recusal would be insufficient because of the public nature of the business, your direct economic interest, and the fact that the appearances of the town in your court could be quite frequent. In order to preserve the public trust and confidence in the judiciary, it is the opinion of the Committee that you should refrain from entering into this particular business arrangement which involves a lease with a municipality in the jurisdiction in which you serve. Based on the facts presented, it is the opinion of the Committee that this particular business arrangement would be in violation of Canons 4 and 5 of the Code of Professional Responsibility for Clerks of the Courts.
Christine P. Burak, Esq.
Secretary, Advisory Committee on Ethical Opinions