Opinion  Opinion 95-1

Date:	03/14/1995
Organization:	Massachusetts Supreme Judicial Court

Ethical Opinions for Clerks of the Courts

Serving on local Personnel Board.

Dear:

This letter is to confirm the advice which was given you by telephone in response to your request for advice from the Advisory Committee on Ethical Opinions for Clerks of the Courts. On January 19, 1995, you submitted your request by fax to the Secretary of the Committee. In your letter you state that you are the and have recently been appointed to local Personnel Board. You explain that this position is appointed, unpaid and has a term of six months. Your responsibilities would include administering the by-law, deciding reclassifications and revising the by-law. You requested an early response from the Committee because the Personnel Board's first meeting was scheduled for January 26, 1995.

On January 24, 1995, the Secretary called to advise you that, in the opinion of the Committee, your serving on the Personnel Board would conflict with the provisions of the Code of Professional Responsibility for Clerks of the Courts. Because of the size of the town and the sensitivity of the issues dealt with by the Personnel Board, it was the members view that your serving on the Board would not comport with the provisions of Canons 4 and 5. By this letter, the full Committee confirms the advice you were provided on an emergency basis.

The provisions of Canon 5 govern the outside activities of Clerk-Magistrates and are intended to minimize the risk of conflict between a Clerk-Magistrate's official and personal activities. Canon 5 (B)(1) governs participation in civic activities and allows such participation unless it "reflect(s) adversely on the Clerk-Magistrate's impartiality or interfere(s) with the performance of his or her official duties. ." Paragraph (1) of this Canon further provides:

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.

Finally, paragraph (E) of Canon 5, entitled "Appointments", provides:

. . (A) Clerk-Magistrate shall not accept appointment within the geographical jurisdiction of the court in which he or she serves to a governmental committee, commission or other governmental position if there is a substantial likelihood that matters involving that committee, commission or other governmental position will come before the Clerk-Magistrate or the court in which the Clerk-Magistrate serves...

The provisions of Canon 4 are also relevant. This Canon emphasizes the importance of impartiality in the judicial system. As has been stated in prior opinions of this Committee, the appearance of impartiality is as important as actual impartiality in promoting public trust and confidence in the courts. Canon 4(B) states that "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."

It is the opinion of the Committee that the unique geographical considerations of would make it impossible for you to serve on the board and to retain the appearance of impartiality. Because the town is so small, it appears likely that in serving on the Board you would be involved with individuals and organizations who would also, in some capacity, come before the Court in which you serve. The nature of the business of the Personnel Board, with its direct impact on the interests of all town employees, may also give rise to issues concerning the appearance of impartiality. For these reasons, it is the opinion of the Committee that your service on the Board would not be appropriate under the Code.