May a district-court bailiff also hold elected county commissioner office if the judge recuses from county matters?

Plain-English summary

The judge hired a bailiff who was also an elected county commissioner. The judge planned to recuse from matters involving the bailiff or county and transfer them to other civil judges; the bailiff also helped in other courtrooms. The inquiry asked whether that arrangement was permissible and whether the other judges would need automatic recusals. Source: Opinion 99-06, p. 1

The committee rejected the dual service. It emphasized the bailiff's confidential and fiduciary role near the judge in court and on official work. It said the combination created a conflict under Personnel Rule 26 and an appearance of impropriety under Code Rules 21-200 and 21-300(B)(2), calling into question judicial independence and integrity. Source: Opinion 99-06, pp. 1–2

In practice

The opinion addresses the dual officeholding itself, so the proposed recusal and transfer arrangement did not resolve the committee's concern. Source: Opinion 99-06, pp. 1–2

Common questions

Q: Was the judge's plan to recuse from county matters enough?

A: No. The committee concluded that serving as both bailiff and commissioner created a conflict and appearance problem in the judicial district. Source: Opinion 99-06, pp. 1–2

Q: Did the committee separately decide when other civil judges must recuse?

A: The request raised that question, but the committee resolved the matter by rejecting the concurrent bailiff and commissioner roles. Source: Opinion 99-06, pp. 1–2

Background and rules framework

The committee applied then-current New Mexico Code of Judicial Conduct Rules 21-200 and 21-300(B)(2) and Judicial Branch Personnel Rule 26, drawing an analogy to its Opinion 94-04 on a court reporter's political-party role. Source: Opinion 99-06, pp. 1–2

Citations and references

• New Mexico Code of Judicial Conduct Rules 21-200 and 21-300(B)(2); Judicial Branch Personnel Rule 26. Source: Opinion 99-06, p. 2
• New Mexico Advisory Opinions 94-04 and 92-05. Source: Opinion 99-06, pp. 1–2

See also

• NM Judicial Op. 99-04: Staff Spouse Campaign
• NM Judicial Op. 07-02: Police Chief and Judge

Source

• Landing page: New Mexico judicial advisory opinions
• Original PDF: Judicial Advisory Opinion 99-06

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Advisory Committee on the Code of Judicial Conduct

Hon. Frank H. Allen, Jr. Chairman
Hon. Thomas A. Donnelly
Prof. William T. MacPhearson, Jr.
Hon. Marie A. Baca

June 23, 1999

The Honorable

Re: Judicial Advisory Opinion 99-06

Dear Judge

In your letter of May 24, 1999, you explain that you have hired an individual to serve
as your new bailiff in the
Judicial District. That person is also a
County Commissioner, and thus holds office in an elected, political position.
You indicate that there will probably be occasions when matters pertaining to County and/or the County Commission would be an interested party before your Division and in such instance you would recuse yourself from hearing such matters. You explain that in such event, the matter would then be transferred to one of the other Civil Division Judges.
You have explained that our bailiff, at times, also assists as a bailiff in other district judges’ courts as well.

You have inquired whether your new employee may serve as bailiff, so long as you recuse yourself in cases pertaining to him or to County. You have also asked whether the other Civil Division Judges must automatically recuse themselves when matters pertaining to your bailiff or County arises. We conclude that it would be a violation of the Code of Judicial Ethics for him to serve as both a court bailiff and a County Commissioner
in the
Judicial District.

We enclose a copy of New Mexico Advisory Opinion 94-04, which addresses similar questions. Although the issues raised in Advisory Opinion 94-04 are not identical to the issues raised herein, they are sufficiently analogous to provide guidance. In Advisory Opinion 94-04, we concluded that “it is a conflict of interest for a Court Reporter to hold the position of Chairperson of a County political party.”

Like a court reporter, a bailiff has a confidential and fiduciary role within the judicial system. A bailiff, “unlike other judicial employees, sits in the courtroom in close proximity to the judge in
Judge
Page 2

virtually every case and sometimes accompanies the judge outside the courtroom on official business.” Advisory Opinion 94-04. Thus, we conclude it would be a conflict of interest for an individual to serve both as a
County Commissioner
and a bailiff for the
Judicial District Civil Division.
In our opinion, a conflict of interest created by this dual service also violates Rule 26 of the New Mexico Judicial Branch Personnel Rules, and gives rise to an appearance of impropriety for the judge contrary to Rules 21-200 and 21-300(B) (2) of the Code of Judicial Conduct, NMRA 1999. A copy of Rules 25 and 26 of the Judicial Branch Personnel Rules are also enclosed.

As we noted in Advisory Opinion 94-04, while the position of a court employee may not actually cause a conflict of interest, “the appearance of a conflict of interest will be so great in the minds of the public that it will create doubt or questioning of the impartiality and integrity of the judicial system.” Id.; see also New Mexico Advisory Opinion 92-05 (considering ethical problem of appearance of impropriety as opposed to conduct).

In considering the individual’s role in the judicial system and his First Amendment rights, we have undertaken to balance his proposed role as a bailiff and his
political office as
County Commissioner. Having done so, we conclude that
the dual roles will unquestionably call into question the independence and integrity of the judicial system.

Very truly yours,

Frank H. Allen, Jr.
Chairman, Judicial Advisory Committee

Enclosures