Opinion 82-11

August 26, 1982

Dear Judge:

This is in response to your telephone inquiry of May 7th, 1982. At the time of your inquiry there was some urgency that you make your decision whether to accept of reject the appointment. In view of the time constraints, the advise of the Committee was rendered via telephone. This is now the official Opinion of the Committee on Standards of Conduct Governing Judges.

Your question is whether you could ethically serve on the mayor's charter revision committee. According to the proposed agenda, the committee would consider such issues as whether the city manager could be appointed or fired with or without city commission approval, methods of appointment of department heads and the city attorney, whether the mayor was to be a voting or non-voting member of the city commission, the right to break tie votes, his right to veto ordinances, and his right to appoint committees and boards. The committee was also to consider such issues as the method of the election of the mayor and the city commission, a limit on the number of terms, whether they were to be full or part-time, and their salaries.

One member felt the judge could properly serve on the advisory committee and that if the judge found she had entered a political thicker, or that the activities interfered with her judicial duties, she could resign.

The majority, however, felt not without some difficulty, this activity is improper. The problem was that we have recognized that judges have served and should continue to serve on constitutional revision commissions and other such bodies. This activity seems to be specifically authorized by Canon 4C.

"He may serve as a member, officer or director of an organization or governmental agency devoted to the improvement of the law, the legal system, or the administration of justice."

There is not a whole lot of difference in determining the powers of a governor vis-a-vis the Legislature and determining the powers of a mayor vis-a-vis the commission. As one member put it, "the question is too local, too close to home. It affects one's own friends and neighbors. It would involve the judge receiving extreme pressure from persons immediately affected." Also, "[B]ecause it was necessary that the committee make its recommendations to the mayor in the relatively near future there was also the likelihood that this activity would detract from judicial duties."

Local politics are more virulent and deadly than state politics. Except for the intense local nature of this committee, the majority felt that similar service would not reflect adversely on the judge's impartiality under Canon 4 and 5B. For example, many judges have served in the Legislature and ruled impartially on the statutes they helped to pass.

I think we can sum up the feelings of the majority by saying that while the Canons permit service on a committee to draft or revise a model municipal or county charter, propose legislation or revise the constitution, a judge makes a mistake doing so when it will immediately affect the guy across the hall, as opposed to some inchoate office holder three counties removed. The city manager who finds himself serving at the pleasure of the may and city commissioners, shorn of his power, will always conjure up alliances and motivations which reflect on the judges impartiality. But on a state-wide level, a judge is far enough removed from the personalities that no one can question his impartiality.

Yours truly,

James T. Carlisle, Chairman
Committee on Standards of Conduct Governing Judges

cc: All Committte Members