May a magistrate also serve as an EMT or volunteer firefighter?

Plain-English summary

A magistrate-elect asked to continue emergency medical technician work and volunteer firefighting in a small community. The EMT work involved payment per medical call.

Applying Rules 1.2 and 3.1(A)-(C), the Commission barred both roles during magistrate service. It cited the possibility of frequent disqualification because first responders are called as witnesses in injury and property-damage cases, and the appearance of favoring first responders who testify before the magistrate. It also noted the primacy of judicial duties and fundraising restrictions.

In practice

The opinion precludes both paid EMT and volunteer firefighter service while the person serves as a magistrate.

Common questions

Q: Does the answer differ for unpaid firefighting?

A: No. The Commission expressly precluded both EMT and volunteer firefighter service.

Q: Why did the Commission cite disqualification?

A: First responders may testify in cases involving injuries or property damage, potentially causing frequent disqualification.

Background and rules framework

Rule 1.2 addresses confidence in judicial independence and impartiality. Rule 3.1(A)-(C) restricts outside activities that interfere with duties, cause frequent disqualification or appear to undermine impartiality. The opinion says its result is consistent with JIC Opinions 2019-03 and 2013-01.

Citations and references

West Virginia Code of Judicial Conduct:

• Rule 1.2 and Comments 1-3, public confidence and impartiality.
• Rule 3.1(A)-(C), extrajudicial activities.

Other opinions cited:

• JIC Advisory Opinions 2019-03 and 2013-01, cited as consistent results.

See also

• WV JIC Advisory Opinion 2021-01
• WV JIC Advisory Opinion 2021-07

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 2020-28, redacted

Original opinion text

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

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JUDICIAL INVESTIGATION COMMISSION
City Center East - Suite 1200 A
4700 MacCorkle Ave., SE
Charleston, West Virginia 25304
(304) 558-0169 • FAX (304) 558-0831

December 18, 2021

Re: JIC Advisory Opinion 2020-28.

Dear Magistrate-Elect

Your recent request for an advisory opinion was reviewed by the Judicial Investigation Commission. The factual scenario giving rise to your request is as follows:

You are presently serving as Deputy Director of the County Office of Emergency Services/91 1. You want to know if after taking office as a magistrate you can simultaneously serve as an emergency medical technician ("EMT") and volunteer firefighter. Your local hospital has entered into an agreement with the fire depatiment to reimburse for any medical calls and you in turn would receive $25.00 per call as an EMT. According to you, you have handled approximately ten to twelve such calls a year for the past five years. You indicated that as a volunteer firefighter you average fifty calls a year. You also stated that there is a continuing need in your small community for EMTs and volunteer firefighters.

To address the question you raised, the Commission has reviewed Rules 1.2 and 3.1 (A), (B) and (C) of the Code of Judicial Conduct which state:

Rule 1.2 Confidence in the Judiciary

A judge shall act at all times in a manner that promotes public confidence in the independence, integrity and impat1iality of the judiciary and shall avoid impropriety and the appearance of impropriety.

Rule 3.1 Extrajudicial Activities in General

A judge may engage in extrajudicial activities, except as prohibited by law or this Code. However, when engaging in extrajudicial activities, a judge shall not:

(A) participate in activities that will interfere with the proper performance of the judge's judicial duties;

JIC Advisory Opinion 2020-28
December 18, 2020
Page 2 of2

(B) participate in activities that will lead to frequent disqualification of the judge;

(C) participate in activities that would appear to a reasonable person to undermine the judge's independence, integrity, or impartiality;

The Comments to the Rules are instructive. Comment [l] to Rule 1.2 states that "[p]ublic confidence in the judiciary is eroded by ... conduct that creates an appearance of impropriety. This principle applies to both the professional and personal conduct of a judge." Comment [2] notes that "[a] judge should expect to be the subject of public scrntiny that might be viewed as burdensome if applied to other citizens and must accept the restrictions imposed by the Code." Comment {3] provides that "[c]onduct that comprises or appears to compromise the independence, integrity and impaitiality of a judge undermines public confidence in the judiciary."

Based upon lhe forego ing, the Commission finds that you caimot serve as an EMT or volunteer firefighter while concurrently serving as a magistrate. You must remember that your judicial duties take precedence over all other activities. EMTs and volunteer firefighters are regularly called as witnesses in criminal and civil cases involving injuries to a person or damage to prope1ty. Therefore, the positions could result in your frequent disqualification from presiding over such cases as a Mag istrate. Moreover, service as an EMT/volunteer fi refighter could lead the public to conclude, however wrong it may be that you are biased in favor of cases involving first responders and that you may unfairly give them more weight and credibil ity whenever they testify in a proceeding before you because you all serve together.

In most communities, particularly those that are more rural, first responders consisting of police, firemen and EMTs are very intertwined. They work side by side and whether involved in a patticular case or not they tend to have intimate discussions and become knowledgeable about local emergency events. In many communities, the fire department and police are housed in the same building. Often a volunteer fire depaitment is closely connected to a paid fire department or is funded in part by a mw1icipality or county commission. T hey also regularly engage in public fundraising, which you would be unable to do pursuant to other provisions of the Code. Therefore, it is the decision of the Commission that you are precluded from serving as an EMT or volunteer firefighter while simultaneously serving as a judge. You are further advised that this decision is consistent with ITC Adviso1y Opinions 2019-03 and 2013-0 I.

Please do not hesitate to contact the Commission should you have any other questions or need further information.

Sincerely,

1fM
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Judicial Investigation Commission

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