Opinion  Opinion 2022-3

Date:	05/13/2022
Organization:	Massachusetts Supreme Judicial Court

Ethical Opinions for Clerks of the Courts

Former employment at local police department within court’s jurisdiction.

Dear Acting Clerk-Magistrate:

I write in response to your request to the Committee dated March 16, 2022.  You are the Acting Clerk-Magistrate of the _________ _________ Court and write regarding your Assistant Clerk-Magistrate (hereinafter referred to as ACM) who was previously employed by the ________ Police Department which is within the jurisdiction of the Court.  You indicate that the ACM was employed by the Police Department for approximately fifteen years. The ACM was assigned to the Detective Division and served as the police liaison to the Court. Additionally, the ACM’s sibling is currently employed as a police officer for the same Police Department and the ACM’s sibling’s spouse is a Sergeant at the same Police Department.

The ACM was appointed in 2018 and has not been permitted to conduct any hearings nor review and make probable cause determinations for any matters involving the _________ Police Department since this time. These matters include, but are not limited to, Jenkins hearings, applications for criminal complaints, search warrants and civil motor vehicle infraction appeals.

Your letter states that the ACM’s long time detective partner at the Police Department retired in 2019 and that the ACM’s sibling now is assigned to an administrative position within the department and is not involved in any patrol or investigative functions. Moreover, the sibling’s spouse was recently promoted to Sergeant and is no longer a member of the detective division and serves as a patrol supervisor with limited investigatory responsibilities. Additionally, since the ACM left the Police Department, twenty-seven officers have retired or resigned from the Police Department.

Your questions for the Committee are:

1. Whether sufficient time has passed for the ACM to hear cases from this Police Department?
2. Do the changes in relationships and personnel within the Police Department sufficiently diminish any appearance of partiality as to permit the ACM to hear cases involving the Police Department?
3. If not, how much additional time and what continued change in relationships and personnel would be required to permit the ACM to hear such matters?

In considering your inquiry, the Committee considered whether the ACM hearing criminal cases brought by the Police Department where the ACM’s relatives work would conflict with the provisions in the Code of Professional Responsibility for Clerks of Court regarding impartiality and the appearance of impartiality. Canons 4 and 5 are directed to both actual and perceived impartiality. Canon 4 states, “A Clerk-Magistrate shall perform the duties of Clerk-Magistrate impartially and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judicial branch of government. (A) Appearance of Impartiality.  A Clerk-Magistrate shall not convey the impression that any person is in a special position to influence the Clerk-Magistrate, and the Clerk-Magistrate should discourage others from suggesting that they are in a position to exert such influence.”

In Opinion 2019-4 relative to a newly appointed Clerk Magistrate hearing cases brought by the Police Department where the Clerk used to work, this Committee “recognized that any perception of…partiality to the town likely will diminish over time. Both the changes in relationships and personnel in the town…at some point will reduce the likelihood that [a former police detective recently appointed as Clerk-Magistrate] hearing criminal cases from the town would give rise to the appearance of partiality.”

The Committee recognizes that four years have passed since the ACM’s appointment and the Police Department has had a change in personnel during this time. However, in our view, in this situation, both the passage of time since the ACM was employed at the department and the ACM’s current relationships with personnel must be considered. It is the opinion of the Committee that the administrative and supervisory positions now held by the ACM’s sibling and sibling’s spouse continue to prevent the ACM from participating in any matters arising from or involving this Police Department. Under Canon 4(E), “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.”

The purpose of the norms of conduct and practice set out in the Code of Professional Responsibility for Clerks of Court, articulated in Canon 1, is to "contribute to the preservation of public confidence in the integrity, impartiality, and independence of the courts."  The principles of impartiality that underlie all the Canons, and Canons 4 and 5 in particular, are directed to both actual and perceived impartiality.

It would be reasonable to assume that your relatives would be involved and interested in work coming from their office, “whether as a supervisor, administrator, investigator or co-worker. In an office environment, information is often shared among co-workers, and it would be difficult to conclude that your [relatives] had no involvement in or knowledge of the matters arising out of…[the] Department.” Opinion 2003-10.   

The positions currently held by the ACM’s relatives involve daily interaction with and supervision of officers at the Police Department who may appear before the court or be involved in cases that are reviewed or decided by the ACM. It is the Committee’s opinion that there may be issues with the public’s perception of the ACM’s impartiality due to the family relationships with current employees of the particular Police Department in question. Therefore, the Committee concludes that the ACM should not hear matters of any kind from this Police Department at this time. In the future, if the relatives are no longer employed by the particular Police Department, our opinion may change depending upon the particular facts at that time.

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