May a magistrate own and help manage a local pawn shop while hearing cases?

Plain-English summary

A magistrate and spouse opened a local pawn shop without first requesting the outside-employment approval described in the Judicial Personnel System Manual. The magistrate sought review after the Administrative Director refused permission.

The Commission applied Rules 1.2 and 3.11(C). It concluded that the pawn shop could appear improper, cause frequent disqualification in theft cases involving pawned items, and create business dealings with people likely to appear in court. It directed the magistrate to divest immediately and provide proof to the Administrative Director. It also said future outside-employment requests must come before action is taken.

In practice

The opinion requires divestiture and proof, and ties future outside employment to advance review rather than a later request.

Common questions

Q: May the magistrate keep the pawn shop with the spouse?

A: No. The Commission stated its opinion that the magistrate must divest the business forthwith.

Q: Why did the Commission reject the business?

A: It cited appearance of impropriety, likely disqualification in property-theft cases and dealings with potential court participants.

Background and rules framework

Rule 1.2 addresses apparent impropriety. Rule 3.11(C) limits financial activities that interfere with duties, cause frequent disqualification or involve continuing business ties to court participants. The opinion also quotes the Judicial Personnel System Manual’s advance approval requirement.

Citations and references

West Virginia Code of Judicial Conduct:

• Rule 1.2 and Comments 2-3, 5, public confidence.
• Rule 3.11(C) and Comments 1-2, financial activities and divestiture.

Other authorities:

• West Virginia Judicial Personnel System Manual § 11.4, outside-employment approval as quoted in the opinion.

See also

• WV JIC Advisory Opinion 2019-28
• WV JIC Advisory Opinion 2020-16

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 2019-08, redacted

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

JUDICIAL INVESTIGATION COMMISSION
City Center East - Suite 1200 A
4700 MacCorkle Ave , SE
Charleston. West Virginia 25304
(304) 558 0 169 • FAX (30,1) 558 -083 1

March 27, 20 19

Re: J lC Advisory Opinion 201 9-08.

Dear

Your recent request for an advisory op1111on was reviewed by the Judicial Investigation Commission at its March 22, 20 19 meeting. The factua l scenario giving rise to your request is as fol lows:

You have been a magistrate si nce December I, 2008, and have served continuously in that capacity since that time. Prior to taking the position, you received a copy of the West Virginia .Judicial Personnel System Manual ("Personnel Manual"). Section I 1.4 of the Personnel Manual provides in pertinent part:

All judicial branch personnel are prohibi ted from engaging in any outside employment that might be construed as compromising or interfering with performance in a judicia l branch position.. .. Before any judicial branch employee may engage in outside employment fo r which there is remuneration, he must submit a written request lo the Administrative Director fo r review and approval. ... The Aclministrati ve Director or his clesignee must determine with guidance from the Supreme Court or Chier Justice as appropri ate whether such employment entails a conflict of interest, an impropriety, or the appearance of impropriety. Basic guidel ines on outside employment are provided by the Code of Judicial Conduct.

In a document elated November 12, 2008, you ceitifiecl that you had received and read the Personnel Manual.

JIC Advisory Opinion 2019-08
March 27 , 2019
Page 2 of4

On or about January 21, 2011, you started a for profit home health/ambulatory
health company called
Home Care Services, LLC. By letter dated May 10,
2011, you asked the Administrative Director's permission to engage in outside
employment with
Home Care. By letter dated June 10, 2011, the
Administrative Director granted your request. You were reminded of these events in a
.TTC Admonishment issued to you on August 24, 2017 in Complaint No. 74-2017.

On January 31, 2019, you sent a letter to the Administrative Director of the
Supreme Court of Appeals of West Virginia asking if you could paiticipate in a new business called . - Your wife and you opened
.

the business in an existing building that you already owned. In your letter to the Administrative Director you indicated that "only after filling out my financial disclosure statement did I realize that I never infonned the Magistrate Court Division that I had started the business." You acknowledged that you wife runs the business tluoughout the day and you are "usually around the shop in the evening hours after work at the magistrate office" and for about four hours on Saturdays.

By letter dated February 7, 2019, the Administrative Director informed you that you could not participate in the venture ''due to issues the Court has with potential conflicts and the strong belief that such activity is in contravention of the Code of Judiqial Conduct. Specifically, the Administrative Director cited Rule 3.11 (B) and (C) of the Code.

By email dated February 15, 2019, you asked the Administrative Director to reconsider his decision and to fmward the information to the Judicial Investigation Commission for a formal opinion. By email dated February 20, 2019, the Administrative Director forwarded your request to our counsel. In the request, you stated:

I receive no pay or contpensation from this LLC. My involvement is of a management ro le because of my financial investment. My time involved in this venture is very limited. My time around the shop is after my comt day has concluded. 1 feel since I have money invested in this business I should be able to have involvement on a management level and wou ld like to remain on the LLC in case there was to be an issue where my wife may be injured in an accident or even worse case scenaiio, she dies. We are the only two members of this LLC.

You also point out that whether you are a member of the LLC or whether your wife solely owns the venture, you would be required to recuse yourself in any magistrate court action involving the business "so as not to have the appearance of impropriety."

To address your question, the Commission has reviewed Rules 1.2 and 3. 11(C) of the Code of Judicial Conduct. Rule 1.2 states that "[a] judge shall act at all times in a

.TIC Advisory Opinion 2019-08
March 27, 2019
Page 3 of4

manner that promotes public confidence in the independence, integrity and impartiality of the judiciary, and shall avoid impropriety and the appearance of improptiety." This standard applies to both the professional and personal conduct of a judge. Comment [2] to the Rule states that "[a] judge should expect to be the subject of public scrutiny that might be viewed as burdensome if applied to other citizens and must accept the restrictions imposed by the Code." Comment (3] notes that "[ c]on duct that compromises or appears to compromise the independence, integrity and impartiality of a judge undennines public confidence in the judiciary." Comment [5] sets fotih the test for appearance of impropriety - "whether the conduct would create in reasonable minds a perception that the judge violated this Code or engaged in other conduct that reflects adversely on the judge's honesty, impartiality, temperament, or fitness to serve as a judge."

Rule 3.11 (C) states that a judge shall not engage in financial activities if they will:

(I) interfere with the proper perfonnance of judicial duties;
(2) lead to frequent disqualification of the judge
(3) involve the judge in frequent transactions or continuing business relationships with lawyers or other persons likely to come before the court on which the judge serves; or
(4) result in violation of other provisions of this Code.

Comment [ 1] states that participation in financial activities is subject to the requirements of the Code. "For exatnple, it would be improper for a judge to spend so much time on business activities that it interferes with the performance of judicial duties .... Similarly, it would be improper for a judge ... to conduct his or her business or financial affairs in such a way that disqualification is frequently required .'' Comment [2] requires that "[a]s soon as practicable without serious financial detriment, th.e judge must divest himself or herself of investments and other financial interests that might require frequent disqualification or otherwise violate this Rule."

It is evident that you knew you should have sought an opm1011 from the Commission or the Administrative Director as to whether you could invest in and open a pawn shop before taking any action. Instead of asking for pe1mission, you clearly thought it better to seek forgiveness. You were wrong. A judicial officer owning a pawn shop creates an appearance of improp1iety, can lead to frequent disqualification by the judge in personal prope1iy theft cases whenever the items in question were taken to the shop, and/or can involve the judicial officer in frequent transactions or continuing relationships
with persons likely to come before
County Magistrate or Circuit Courts.
Therefore, you should never have opened a pawn shop in your county. The Commission is of the opinion that you must forthwith divest yourself of the pawn shop and provide proof of the same to the Aclministrati ve Director. Lastly, the Commission also feels compelled to again remind

.11 (.' A dv isor y O pinio n 20 19-08
Marc h 27. 2019
Page 4 o f 4

you that an y f'uture requests for outside employment should occur prior lo lak ing any action and the fai lure to do so alter having been repeatedly warne<l could result in di scipli nary action.

It is hoped that th is op1n1on full y addresses the issues which you have raised.
Please do not hesitate to contact the Commission if you have any other questions regarding this matter.

Sincerely,

Tl~ rtf;;cf : : ,Cl,airpci,on
Judici al In vestigation Commission

ADM/tat