Informal Opinion 97-6
October 1, 1997

The Ethics Advisory Committee has been asked by a court employee whether the employee may accept an appointment to the Grievance Council of the Utah Division of Child and Family Services (DCFS). The employee currently serves as a staff attorney to the Court of Appeals and will soon serve as appellate court mediator.

The Grievance Council was formed by the Board of Child and Family Services, pursuant to a federal court order, as an independent body to receive complaints from consumers concerning the handling of child welfare matters. The Council mediates complaints and provides recommendations to DCFS concerning resolution of complaints which cannot be mediated. The Council has the authority to adopt its own rules and procedures to accomplish its purposes.

Canon 3C(2) of the Code of Judicial Conduct states: "A judge should require staff, court officials and others subject to judicial direction and control to observe the standards of fidelity and diligence that apply to the judge." We note initially that the term "staff" is not defined in the Code. The term has been extended to court clerks, law clerks, bailiffs and secretaries. The committee is of the opinion that the term includes all those who are employed by the judiciary, including an appellate court mediator and staff attorney.

The application of Canon 3C(2) has not been uniform among jurisdictions. For instance, the Texas Committee on Judicial Ethics, in Opinion 106, stated that this canon requires court employees to adhere to all provisions of the Code of Judicial Conduct. The Oregon Judicial Conduct Committee, in Opinion 86-4, stated that this canon applies only to employees' administrative responsibilities and does not require employees to regulate their extra-judicial activities to minimize a risk of conflict with judicial duties.

This committee has previously stated that judges have "the responsibility to ensure that court staff and officials observe appropriate ethical standards." Informal Opinion 88-1. However, the committee has chosen not to extend all of the canons to court employees. In Informal Opinion 89-6, the committee determined that, although a judge is prohibited under Canon 4D(5) from accepting Christmas gifts from attorneys or parties, court employees could accept gifts of nominal value.

Although judicial employees will not be subject to all provisions of the Code of Judicial Conduct, the committee does not believe that 3C(2) is limited to the administrative responsibilities of employees, as determined by the Oregon Judicial Conduct Committee. Although this canon is found within the "Administrative Responsibility" section of the code, a plain reading indicates that court employees must, at a minimum, observe all code provisions which require diligence and fidelity. The question presented to the committee does not directly involve an issue of diligence. The committee must therefore determine whether service on the Grievance Council involves a standard of fidelity.

As defined by Websters'II, New Riverside University Dictionary, 475 (1994) fidelity is "faithfulness to obligations, duties, or observances." Canon obligations which require faithfulness to judicial duties, will apply to both judges and court employees. Service on the Grievance Council is governed by Canon 4C(2) which states that "A judge shall not accept appointment to a governmental committee or commission or other governmental position that is concerned with issues of fact or policy on matters other than the improvement of the law, the legal system or the administration of justice." The commentary to the Model Code of Judicial Conduct states that the reason for prohibiting governmental appointments, other than to those specifically authorized, is that the prohibited appointments are "likely to interfere with the effectiveness and independence of the judiciary." Governmental appointments may also interfere with judicial duties or "erode the appearance of impartiality which is essential to judging itself." Jeffrey M. Shaman et al, Judicial Conduct and Ethics, 287 (2d ed. 1995). The canon requires professional faithfulness to the mission of the judiciary, by limiting judges' professional activities to law-related issues. Canon 4C(2) is therefore a standard of fidelity imposed on a judge, and court employees must follow the same standard.

In Informal Opinion 95-1, we stated that every potential extra-judicial governmental appointment "must be examined independently to determine whether service is appropriate under the code." If any of the functions of a committee are not law-related, service will be improper even if the committee otherwise has permissible functions. In Informal Opinion 94-2, the committee disapproved service on a subcommittee to the Utah Substance Abuse and Anti-Violence Coordinating Council because the mandates of the subcommittee included developing policy recommendations to combat substance abuse and community violence and making legislative recommendations on program priorities. The subcommittee functions were not sufficiently limited and therefore a judge could not accept appointment.

In Informal Opinion 95-1, the committee approved appointment to the Board of Child and Family Services because the Board's duties were limited to improving child welfare and ensuring agency compliance with the provisions of a federal court consent decree. The committee is of the opinion that Informal Opinion 95-1 controls the outcome of the current fact situation. The Grievance Council is a body appointed by the Board of Child and Family Services, the committee that was at issue in Opinion 95-1. The Council was established pursuant to the same consent decree discussed in that opinion. Because the Council was established by the Board, it does not have any greater authority or responsibility than the Board. Based on the committee's previous determinations that oversight of the consent decree is related to improving the law and the administration of justice, the employee's service on the Grievance Council is permitted under Canon 4C(2).

As stated in Informal Opinion 95-1, however, the court employee may not be involved in any case in which DCFS "is a party or has a pecuniary or policy interest." This is true whether the employee is serving as a staff attorney or as appellate court mediator. If disqualifications from cases or time commitments to the Grievance Council become disruptive to court operations, the employee should resign from the Council.