May a magistrate take paid evening and weekend security work for a private business?

Plain-English summary

A magistrate and former police officer was offered paid evening and weekend security work for a private business. The work involved checking doors and vehicles, calling the owner about unsecured property and calling police if a crime occurred. The magistrate said the schedule would not interfere with on-call duties, but criminal incidents could require testimony.

The Commission reviewed Rules 1.2 and 3.1. It concluded that the job would create an appearance of favoring law enforcement and could draw the magistrate into criminal cases as a witness. It rejected the part-time security position.

In practice

The opinion rejects the described security duties despite scheduling flexibility, personal vehicle use and no required uniform or gun.

Common questions

Q: Could the magistrate take the security job?

A: No. The Commission prohibited that outside employment.

Q: What concerns did the Commission identify?

A: It cited perceived alignment with law enforcement and possible testimony in criminal matters involving the business.

Background and rules framework

Rule 1.2 addresses public confidence in judicial impartiality, and Rule 3.1(A)-(E) limits outside activity that interferes with duties, causes disqualification or undermines impartiality.

Citations and references

West Virginia Code of Judicial Conduct:

• Rule 1.2 and Comments 1-5, public confidence and appearance of impropriety.
• Rule 3.1(A)-(E), outside activities.

See also

• WV JIC Advisory Opinion 2021-19
• WV JIC Advisory Opinion 2022-25

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 2021-14, 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- 0169 • FAX (304) 558-0831

June 4, 2021

Re: JIC Advisory Opinion 2021-14

Dear Magistrate

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

You are a former police officer having retired from the position in 2018. In 2019, you were appointed Magistrate, and you were elected to the position in June 2020. While you were a police officer you would occasionally assist another officer on an "off duty" job serving as a security officer for a private mattress company. Your duties consisted of checking the building's exterior doors and delivery vehicles to make sure they were secure. The "off duty" officer is retiring and the company would like you to serve as the new security officer. The work would occur every evening and weekend when the business is closed. You can select the time when you check the business so it does not affect your duties as an on-call magistrate. You do not have to wear a uniform or carry a gun. You also will be using your own vehicle. If any of the business doors or delivery vans are not secure, you would be required to notify the owner. If a crime has occurred you would call 911. You acknowledged in that instance you would probably be required to testify if any charges were brought. You indicated that an "off duty" Police officer would probably serve as your backup whenever you are unavailable. Lastly, you would be paid for the part-time work on a 1099 basis.

You want to know if it would violate the Code of Judicial Conduct for you to engage in this outside employment. To address your question, the Commission has viewed Rules 1.2 and 3.1 of the Code of Judicial Conduct which state:

JIC Advisory Opinion 2021-14
June 4, 2021
Page 2 of 3

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 impartiality 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;
(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;
(D) engage in conduct that would appear to a reasonable person to be coercive; or
(E) make use of court premises, staff, stationery, equipment, or other resources, except for incidental use for activities that concern the law, the legal system, or the administration of justice, or unless such additional use is permitted by law.

Comment [ l] to Rule 1.2 states that "[p]ublic confidence in the judiciary is eroded by improper conduct and conduct that creates the appearance of impropriety. This principle applies to both the professional and personal conduct of a judge." Comment [2] provides 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]onduct that compromises or appears to compromise the independence, integrity, and impartiality of a judge undermines public confidence in the judiciary." Comment [4] states that "[j]udges should participate in activities that promote ethical conduct among judges and lawyers, support professionalism within the judiciary and the legal profession, and promote access to justice for all." Comment [5] provides:

Actual improprieties include violations of law, court rules or provisions of this Code. The test for appearance of impropriety is 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.

JIC Advisory Opinion 2021- l 4
June 4 , 2021
Page 3 of 3

Based upon the foregoing, the Commission is of the opinion that part-time employment as a security officer creates an appearance issue, however wrong it may be, that you are pro law enforcement. You could also be required to testify in any criminal matters involving the business which could impact on your position as magistrate. Therefore, the Commission is of the opinion that you cannot engage in part-time outside employment as a security officer.

The Commission hopes that this opinion fully addresses the issues which you have raised. Please do not hesitate to contact the Commission should you have any questions, comments or concerns.

Sincerely,

Judicial Investigation Commission

ADM/tat

cc: Administrative Director Joe Armstrong