Opinion  Opinion 2018 - 4

Date:	09/07/2018
Organization:	Massachusetts Supreme Judicial Court

Ethical Opinions for Clerks of the Courts

Inquiring whether it is appropriate to continue to serve as Chair of the Parade Committee

Dear __________:

This letter is in response to your email dated July 23, 2018 requesting an opinion from the committee on whether it is appropriate for you to continue serving as Chair of the _______Parade Committee.  Please note that this Advisory Committee is authorized to render opinions with respect to the Code of Professional Responsibility for Clerks of the Courts, and this opinion is limited to the committee’s consideration of your request as it relates to that Code. 

In your email, you state that the _______Parade is not a 501C(3) corporation but currently works under a separate non-profit organization as a fiscal sponsor. The intent is for the committee to become its own non-profit in the next year or so.  Sponsorship for the parade is solicited from corporations, small businesses and private individuals. You state that you are not directly involved in that solicitation which is handled by a separate sub-committee. You further state that there has been a line item allocation in the state budget for the parade to receive a state appropriation, which appropriation was not requested or solicited by the Parade Committee, and that your state representative is a supporter of the parade. These considerations, and concerns of your supervisor, led you to seek an opinion from the committee. Because you requested a prompt response to your email, the committee chair called you on August 7, 2018 to inform you that in the view of the members consulted, provided you comply with the relevant provisions of the Code, your serving on the Parade Committee was permissible. This letter serves to confirm the advice given to you on an emergency basis. 

Canon 5(B) of the Code addresses a Clerk's participation in outside activities. Under Canon 5(B)(2), participation in civic and charitable activities 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 on the Parade Committee is permissible under the Code provided that it is not substantially likely that the committee or a significant number of its members will come before the court where you serve. Given that you do not participate in the committee’s fundraising activities, it does not appear that your serving on the committee would affect, or appear to affect, your impartiality as assistant clerk-magistrate. See Opinion 2010-3. 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, it is the opinion of the committee that the Code does not prohibit your service on the Parade Committee.

Should the committee, its members, or others who appear at the meetings of the committee appear before the court where you work, or should you become aware that those appearing before you while you are serving as clerk magistrate are donors to the parade and could present concerns with respect to your appearance of impartiality, you should consult and comply with the provisions of Canon 4(E) regarding disqualification. As stated at the outset, the committee’s consideration is limited to reviewing how the Code pertains to your service on the Parade Committee.   

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