Informal Opinion 97-1
April 10, 1997

The Ethics Advisory Committee has been asked for its opinion on the following two questions.

1. May an active senior judge, on a contract basis, serve as a hearing officer for the Utah Board of Pardons and Parole?

2. If the judge may so serve, what restrictions are imposed on the judge's service as a senior judge?

The Board of Pardons and Parole is an executive branch entity created by Article VII, Section 12 of the Utah Constitution. The Board is granted the authority to "grant parole, remit fines, forfeitures and restitution orders, commute punishments, and grant pardons after convictions." In carrying out its duties, the Board has authority to appoint examiners to conduct "any investigation, inquiry, or hearing that the Board has authority to undertake." Utah Code Ann. 77-27-2(2)(f). Offenders appearing before the Board often raise issues which require evidentiary hearings. The Board contracts with examiners to conduct the evidentiary hearings and provide findings and conclusions to the Board. Because of the expertise a senior judge possesses in handling evidentiary proceedings, the Board would like to appoint a senior judge, on a contract basis, to conduct these hearings.

An active senior judge is required to comply with all provisions of the Code of Judicial Conduct except Canon 4F, which prohibits a judge from serving as a mediator or arbitrator or to "otherwise perform judicial functions in a private capacity unless expressly authorized by law."(1) Canon 4C(2) allows a judge to accept a "governmental position that is concerned with issues of fact or policy on . . . the administration of justice." The Committee assumes that regular contract work of the sort contemplated would qualify as a "governmental position." Clearly, the very purpose of the hearing officer is to resolve "issues of fact." The Committee also believes it is inarguable that the Board and its hearing examiners are engaged in the "administration of justice." The Board has jurisdiction over offenders who have committed Class A misdemeanors and felonies. The jurisdiction is similar to that which judges and courts have over persons convicted of Class B misdemeanors and lower. In either situation, the courts or the Board have authority to review the status of convicted persons. Each entity makes decisions based on that review. These status reviews involve the administration of justice. The evidentiary proceedings that the senior judge would be performing for the Board are similar to probation hearings and other proceedings conducted by judges with respect to convicted misdemeanor offenders. Accordingly, service by the senior judge is permitted by Canon 4C(2). And even if such service is regarded as the performance of "judicial functions in a private capacity," Canon 4F does not bar such service in the case of an active senior judge.

The Committee is of the opinion, however, that the judge's service to the Board will require restrictions on the judge's service as an active senior judge. Canons 1 and 2 require judges to uphold the integrity and independence of the judiciary and to promote public confidence in the integrity and impartiality of the judiciary. Canon 4A(1) states that "a judge shall conduct the judge's extra-judicial activities so that they do not . . . cast reasonable doubt on the judge's capacity to act impartially as a judge." As a regularly employed hearing examiner for the Board, the judge will be, or at least appear to be, an integral part of the non-judicial component of the criminal justice system. The judge will be seen as connected with the executive branch in the context of the administration of criminal justice. The executive branch, albeit through other entities and agencies, is actively involved in the investigation and prosecution of criminal matters. An impartial observer, aware of the judge's ongoing service to both the judicial and executive branches, could reasonably question the judge's neutral impartiality in serving as a judge in criminal and habeas corpus proceedings. Because of the institutional connection to an important executive branch component of the criminal justice system, the senior judge must not accept assignment of criminal and habeas corpus cases.(2)

In conclusion, a senior judge may serve as a hearing officer for the Utah Board of Pardons and Parole, on a contract basis, because this is service to a government agency which is involved in the administration of justice. As both a hearing officer and an active senior judge, the judge must avoid situations which create the appearance of conflict. Thus, the judge may not accept assignments to preside as an active senior judge over criminal or habeas corpus cases.

1. The rationale for this restriction is that "judges are appointed and paid for the purpose of resolving disputes, and that allowing what is essentially a private practice of the same profession necessarily exploits the judicial office." Jeffrey M. Shaman, et al., Judicial Conduct and Ethics 239 (2d ed. 1995).

2. The Committee understands that, as an active senior judge, the judge can make arrangements to only serve in civil and domestic matters.