Opinion  Opinion 98-5

Date:	05/13/1998
Organization:	Massachusetts Supreme Judicial Court

Ethical Opinions for Clerks of the Courts

Serving as elected town meeting member.

Dear:

This is in response to your letter of March 25, 1998, requesting the advice of the Committee with respect to two questions.

1. You are the Clerk-Magistrate of the District Court. You are also an elected town meeting member in the town of , which is not within the jurisdiction of the District Court. You inquire whether your continued service as town meeting member is permissible under the Code.

Under Canon 6, a non-elected Clerk Magistrate shall not "hold or seek an elective public 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 you note in your letter, on previous occasions we have found that it is permissible under the Code to hold the position of elected town meeting member while serving in a position governed by the Code of Professional Responsibility for Clerks of the Courts. See Opinions #s 91-7 , 94-2 and 97-3 . Our view on this issue does not distinguish between the positions of Assistant Clerk and Clerk Magistrate. The determinative factor is whether there is a substantial likelihood that matters involving the position of town meeting member will come before you or the court in which you serve. Based on the facts included in your letter, there does not appear to be a substantial likelihood that matters involving your position as town meeting member would come before you in your capacity as Clerk-Magistrate. In our view, there is no conflict under the Code in your serving in both positions.
 

2. You also inquire whether your service on the board of trustees of a community music school located in is permissible under the Code. You note that the school is a non-profit organization which offers music lessons for a fee and it derives some of its income from grants from state and local agencies. The board members are not compensated. Their role is to provide advice to the executive director and participate in some fundraising.

Canon 5(B) of the Code provides that: "A Clerk-Magistrate may participate in civic and charitable activities that do not reflect adversely on the Clerk-Magistrate's impartiality or interfere with the performance of his or her official duties. A Clerk-Magistrate may 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..."

Canon 5(B)(2) further provides that: "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..."

Based on the facts provided in your letter, it is our view that there is no conflict under the Code for you to serve on the board of trustees. In that the school is not located within the geographical jurisdiction of the court, there appears to be no substantial likelihood that the community music school or a significant number of its members will be engaged in proceedings in the Court in which you serve. Your service on the board is the type of civic and charitable activity generally permissible under Canon 5.

With respect to each of the outside positions which you currently hold, should the organization or its members appear before you in your capacity as Clerk-Magistrate, you should consult and comply with the provisions of Canon 4(E) on disqualification.