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Opinion 179

An opinion is requested concerning the propriety of a full-time county department head simultaneously serving as a part-time Magistrate. Specifically, may the Director of Animal Control & Code Enforcement for Henry County, who is responsible for the enforcement of County codes and ordinances, and whose major duties include “assisting subordinates in conducting investigations, enforcing codes and ordinances, and in preparing cases,” but who never hears cases in which the County is involved and has no arrest powers, simultaneously serve as a part-time Magistrate working on call at night and on weekends to write warrants and occasionally conduct a preliminary hearing or hear a civil case?

The job description accompanying this request states: “The purpose of this position is to ensure that the codes and ordinances of Henry County are enforced. Results affect the public image of the County, commissioners and the department. Errors can cause cases to be lost in court and the County could suffer legal liability if proper procedures are not followed.” Additionally, the “Personal Contacts” section of the job, description reads as follows: “Contacts typically include co-workers, subordinates, county officials, commissioners, Sheriff’s Department personnel, FIRE/EMS personnel, other County department heads; attorneys, judges, state and federal officials, and the general public.”

A similar opinion is sought respecting A full-time County tax appraiser who also works as a part-time Magistrate writing warrants on weekends and at night and occasionally hearing a case if all other Magistrates are disqualified.

With respect to the full-time Director of Animal Control and Code Enforcement, this Commission has consistently held that any employee of a law enforcement body is disqualified by conflict of interest from serving as a magistrate. (See Opinion Nos. 34, 101, and 151.) In Opinion No. 151, a City Attorney, whose duties included assisting in the drafting and adopting of criminal ordinances, was held to be an employee of a law enforcement body and hence disqualified.

Considering the specific job description language quoted above, it is the opinion of the Commission that the Director of Code Enforcement is also an employee of a law enforcement body. For this reason, service as a part-time Magistrate would inevitably give rise to an appearance of impropriety in violation of Canon 1 and accordingly, would be inappropriate.

With respect to the full-time tax appraiser, no job description was provided, but because such individual would appear to have no involvement in law enforcement as such and provided he hears no cases in which the County or any of its agencies is a party, service as a part-time Magistrate would not appear to be inappropriate.

[Pertinent Code of Judicial Conduct provisions: Canon 1, Rules 1.2(B), 2.4(B), 2.11(A), 4. Cross reference to other relevant opinions for review: #34, #70, #101, #137, #151, #162, #172.]

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