State of Washington

Ethics Advisory Committee

Questions:

Is it appropriate for the court to enter into a joint agreement with the County to hire one person to fill both positions of superior court clerk and superior court administrator?

Answer:

A judge shall promote public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety. CJC Rule 1.2. Conduct that compromises the independence, integrity, and impartiality of a judge undermines public confidence in the judiciary. CJC Rule 1.2, Comment [3].

A judge shall require court staff, court officials, and others subject to the judge's direction and control, to act with fidelity and in a diligent manner consistent with the judge's obligations under this Code. CJC Rule 2.12(A).

In order to preserve public confidence in the integrity and impartiality of the judiciary, it is important that there be a clear separation between judicial and executive functions. At the superior court level, the clerk is a constitutional position that exists outside of the judicial branch. Wash. Const. Art. XI, § 5; Burrowes v. Killian, 195 Wn.2d 350, 361, 459 P.3d 1082 (2020). As such, it is not appropriate for a judge to direct a court employee to perform the duties of an executive branch employee. See CJC Rule 1.2; CJC Rule 2.12(A). The same authority suggests a judge should not allow an executive branch employee to perform the duties of a judicial branch employee. Commingling of these roles would undermine public confidence in the integrity and impartiality of the judiciary. CJC Rule 1.2.

Previous advisory opinions explain that the boundaries created by the separate branches of government are essential to uphold the public's confidence in the integrity and impartiality of the judiciary. EAO 06-04 concluded that a judge may not permit a part-time municipal court clerk to also serve as the police department evidence clerk and animal control officer. EAO 00-17 concluded that a part-time municipal court judge may not delegate duties in ARLJ 5¹ to executive or legislative branches of the city. EAO 20-08 concluded that a judicial officer may not permit an executive branch employee police department administrative clerk, city clerk, or city treasurer) to serve as a municipal court clerk.²

For the reasons discussed above, the court should not enter into a joint agreement with the County to hire one person to fill both positions of superior court clerk and superior court administrator.

¹  ARLJ 5 was repealed in 2002 and replaced by GR 29 which provides "The judicial and administrative duties set forth in this rule cannot be delegated to persons in either the legislative or executive branches of government."

²  "[T]here was an incontrovertible risk that the public would perceive that a clerk who performed functions for both the judicial branch and the executive branch would undermine the public confidence in the integrity and impartiality of the judiciary." EAO 20-08.

Opinion 23-02

03/14/2023