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Opinion 202

Two judicial officers jointly request an opinion on the following issues:

1. Is it appropriate for a full time Probate Judge or a part time Magistrate to serve on a “Board of Ethics” established to hear ethics complaints made against elected public officials and members of any County Board, Commission or Authority?

2. Is it appropriate for a full time Probate Judge or a part time Magistrate to appoint a designee to serve on a “Board of Ethics” established to hear ethics complaints made against elected county officials and members of any County Board, Commissioner or Authority?

A copy of the “Code of Ethics” proposed to be adopted by the governing authorities of the County accompanies this request. A review of the Code provisions, specifically the sections providing for disciplinary action (Sec. 10) and judicial review by the Superior Court (Sec. 11), renders judicial service on said board inappropriate.

Among other things, Sec. 10 authorizes the board to institute proceedings for injunctive and/or other appropriate relief for the purpose of requiring compliance with the Code, while Sec. 11 authorizes an appeal “on the record” to the Superior Court. Without belaboring the point, it is thus obvious that the Board of Ethics is likely to be regularly engaged in adversary proceedings in various courts.

Similar facts were considered in Opinion No. 125 wherein the Commission, quoting Rule 3.7(B)(1)(b) and noting the inherent nature of the ethics board, concluded that judicial participation in such boards would be inappropriate. Nothing is presented here requiring modification, and accordingly, issue number 1 must be answered in the negative.

With respect to issue number 2, the Commission suggests that the better practice would be one in which judicial officers have no role. Recognizing that a chief magistrate was authorized to designate a non-magistrate member of a county Child Abuse Protocol Committee in Opinion No. 174, the problems enumerated above are not likely to occur in a child abuse committee setting, and thus Opinion No. 174 is distinguishable on its facts.

In sum, no valid reason appears to permit judicial participation in any aspect of the County Board of Ethics, and thus, issue number 2 must likewise be answered in the negative.

[Pertinent Code of Judicial Conduct provisions: Canon 3. Cross reference to other relevant opinions for review: #103, #125, #158, #174, #178.]

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