Opinion  Opinion 2022-4

Date:	09/01/2022
Organization:	Massachusetts Supreme Judicial Court

Ethical Opinions for Clerks of the Courts

Assistant Judicial Case Manager running for the Town Planning Board and serving on Zoning Board of Appeals and as the Town Moderator.

Dear Assistant Judicial Case Manager _____________:

This letter is the written response to your request dated May 19, 2022. You have been appointed to serve as an Assistant Judicial Case Manager (hereinafter AJCM) in the ___________ Probate and Family Court. You indicate that you are considering running for the Town Planning Board, an elected position, in the county where your Court is located. In addition to running for the Planning Board, you also asked the Committee for an opinion as to whether you could serve on the Town’s Zoning Board of Appeals and as the Town’s Moderator. The Zoning Board of Appeals and the Town Moderator are appointed positions in a town within the jurisdiction where your Court is located.

As the election was imminent at the time of your request, you asked for an emergency opinion from the Committee so you would have time to withdraw your name from the ballot for the Planning Board, if necessary, based on the Committee’s opinion. Because of your request for an emergency response, the Secretary of the Committee provided you with an oral opinion that the Committee found that your service in the positions inquired about would be problematic under the Code of Professional Responsibility for Clerks of the Courts. This letter confirms the oral advice that you were given.

You indicated in your letter that appeals of decisions from the Planning Board and the Zoning Board of Appeals are to the Superior Court, and in your opinion, there is no likelihood that matters involving these positions will come before the ____________Probate and Family Court where you work as an AJCM. You further indicate that the Town Moderator is responsible for presiding over the annual Town Meeting and that there is no likelihood that matters involving the Town Moderator would come before the __________Probate and Family Court where you serve.

With respect to your request to whether you can run for the Town Planning Board position, Canon 6 of the Code states explicitly that “a Clerk-Magistrate, other than an elected Clerk-Magistrate, shall refrain from political activity, and shall not …

4) hold or seek an elective office, if there is a substantial likelihood that matters involving that office will come before the Clerk-Magistrate or the court in which the Clerk-Magistrate serves …”.

As an elected official, it can be expected that constituents will frequently contact you regarding various issues that come before the Planning Board, and it is likely that some of these constituents will have business before the court where you work.  While the Zoning Board and the Town Moderator positions are not elected, the same can be said for these positions.  Constituents may be contacting you in these positions who may have business before the ____________ Probate and Family Court. (Opinion 2008-2 Running for election to city council or school committee prohibited under Canons 4 and 6).

Whether the positions are elected or not, the issues that come before the Planning Board, Zoning Board, and Town Moderator may be highly charged controversial matters in town. For example, municipal decisions on whether a project can be built or not could often affect the livelihood of a construction contractor or person who works in the trades who comes to your court seeking a divorce.  In addition, there are times that lawyers who appear representing clients before a Planning Board or Zoning Board of Appeals also appear at _______________Probate and Family Court.

With respect to the Town Moderator position, there are often matters at Town Meeting that are controversial in nature. Members of the public who appear at Town Meeting are also likely to appear at the _______________________Probate and Family Court since the town is in the jurisdiction of the ____________________Probate and Family Court.

Canon 1 of the Code states that the purpose of the Code is “to contribute to preservation of public confidence in the integrity, impartiality, and independence of the courts.” Canon 4 requires that Clerk-Magistrates “act in all times in a manner that promotes public confidence in the integrity and impartiality of the judicial branch of government.” While we understand that you would work hard to preserve integrity and impartiality, you must not only be impartial but also appear to be impartial. It is both actual and perceived impartiality that the Code seeks to prevent.

Although the Committee recognizes your good intentions to serve your community, it is unlikely that you can wear all official hats and preserve the appearance of impartiality. (See Opinion 2014-1, Serving as elected school committee member, Opinion 2008-2 Running for Election to city council or School Committee prohibited under Code, Opinion 94-13 Role of Elected Clerk-Magistrate serving as City Councilor creates concerns about the appearance of impartiality, Opinion 99-6 Serving as elected member of City council prohibited under Code.)

On the basis of the Canons cited above and the reasoning set forth, it is the opinion of the Committee that holding the elected Planning Board position as well as holding the appointed Zoning Board of Appeals and Town Moderator positions would violate the provisions of the Canons of the Code and we advise you against seeking or holding such positions in your town which is within the jurisdiction of the court where you serve as an appointed AJCM.

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