Opinion  Opinion 2021-1

Date:	01/27/2021
Organization:	Massachusetts Supreme Judicial Court

Ethical Opinions for Clerks of the Courts

Serving as Town Treasurer

Dear Assistant Clerk___________:

This letter responds to your letter of October 23, 2020 requesting an opinion from the Committee. You are an assistant clerk in the _________ Court. In your letter, you state that you have been approached by a member of the Select Board in the town where you live and asked to pursue the position of appointed treasurer for that town. The town is not within the jurisdiction of the court where you are an assistant clerk. You report that the duties of a treasurer may take four to five hours per week, as well as attendance at weekly Select Board meetings which are held in the evening. You further state that it is a paid position with a salary of up to $15,000 and that "This is a financial position not a legal position. Responsibilities include the collection of all town revenue including real estate, personal property, and excise taxes along with the proper accounting and receipting of such revenue with reporting to the Select board weekly." You note that you are academically qualified for the position and ask whether if you were offered this position, your service would be consistent with the Code of Professional Responsibility for Clerks of Court. You noted that the position was vacated unexpectedly and that the interview process would advance quickly.

On October 28, 2020, the Secretary to the Committee called you to say that it is the view of the Committee that provided you did not use court time or resources in your role as treasurer, accepting the position would not be prohibited by the Clerk's Code, but that other authorities may also be relevant. By this letter, the Committee confirms that advice.

In Opinion 2013-1, the Committee advised a clerk that the appearance of impartiality would be adversely affected by the clerk's working for a city while serving as an assistant clerk. In that case, the city where the clerk sought to work was within the jurisdiction of the court where the clerk worked. The committee noted that "your receiving compensation from a municipality that frequents the court where you work could reasonably be perceived as compromising your impartiality in proceedings involving the municipality. Receipt of a paycheck from the city could give rise to the appearance of divided loyalty." These concerns are not present in your situation, given that the town where you would work is not within the jurisdiction of the court where you are an assistant clerk. It is the Committee's view that your acceptance of the job you describe would not implicate your impartiality or the appearance of your impartiality in these circumstances.

The Committee reiterates the cautions conveyed to you by the Secretary. You may not use court time or resources in furtherance of your job for the town. See Canon 3 (“A Clerk-Magistrate shall devote the entire time during normal court hours to the duties of his or her office . . . .”) Also, as the Secretary noted, the Committee's authority 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 court's personnel policies have a bearing on your request.

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