State of Washington

Ethics Advisory Committee

Questions:

May a judicial officer permit a court employee to manage the City's jail alternative programs and/or court security? The City contracts with the county to provide jail services and contracts with a non-profit independent company to provide alternative jail services, such as Electronic Home Monitoring/Electronic Home Detention and active Global Positioning System ankle bracelets (as well as other court ordered pretrial and post-conviction monitoring devices such as Secure Continuous Remote Alcohol Monitor). The goal of the position is to reduce the inmate population in the county jail and develop new programs to enhance sentencing and diversion options of the court.

Relevant aspects of the court employee's job description are:

1. Receives input from and works collaboratively with the City Attorney's Office and City Police Department.
2. Manages all aspects of the City's jail alternative and diversion programs for incarceration reduction including detention of inmates in jail facilities contracted with the City and use of Electronic Monitoring of defendants. Under the direction of the Court Administrator, develops program goals and objectives; plans, organizes and delegates day-to-day operations and special projects. Develops, recommends, implements and evaluates policies, procedures and best practices for all jail alternative and diversion programs.
3. Independently performs pre/post sentencing screenings required for pre/post sentencing and pre-trial release. Determines eligibility for programs and explains program guidelines, conditions, requirements and restrictions. Utilizes Judicial Information System, National Crime Information Center and police records to obtain detailed background information for use in defendant screenings and provides the results to the Court, Prosecutor's Office and District Court Probation Officers as required. The employee does not meet with defendants, but completes a screening form with information collected from collateral sources and places the completed form in the court file.
4. Oversees the management of court security. This includes the management of the court security contract and court security officers, review and testing of court security systems, review and revision of the court security plan and procedures, recommend and assist with training coordination of court personnel for emergencies, and coordinating the court's security requirements with the other departments located in the Municipal Court building, Public Works, and local emergency personnel.

Answer:

A judge shall require that employees under the judge's direction and control act with fidelity and in a diligent manner consistent with the judge's obligations under the Code of Judicial Conduct (CJC). CJC Rule 2.12(A). A judge is responsible for their own conduct and for the conduct of others, such as staff, when those persons are acting at the judge's direction or control. CJC Rule 2.12, Comment [1]. A judge may not direct court personnel to engage in conduct on the judge's behalf or as the judge's representative when such conduct would violate the CJC if undertaken by the judge. CJC Rule 2.12, Comment [1].

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. CJC Rule 1.2. The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge violated the CJC or engaged in other conduct that reflects adversely on the judge's honesty, impartiality, temperament, or fitness to serve as a judge. CJC Rule 1.2, Comment [5]. A judge must perform all duties of judicial office fairly and impartially. CJC Rule 2.2. A judge shall perform the duties of judicial office, including administrative duties, without bias or prejudice. CJC Rule 2.3(A). A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, and shall not permit court staff, court officials, or other subject to the judge's discretion and control do so. CJC Rule 2.3(B). Finally, a judge shall not convey or authorize others to convey the impression that any person or organization is in a position to influence the judge. CJC Rule 2.4(C).

I. Collaboration with City Attorney's Office and City Police Department

Collaborations among justice partners are encouraged, and engaging in a collaborative process is not prohibited by the CJC. However, collaboration with only selective court participants undermines the court's impartiality (CJC 1.2). Since a defense representative is not included in the collaboration, the identified arrangement likely undermines the integrity and impartiality of the court and violates CJC Rule 1.2, CJC Rule 2.2, CJC Rule 2.3(B), and CJC Rule 2.12(A).

II. Management of Jail Alternative and Diversion Programs

Development, implementation, and evaluation of policies, procedures, and best practices for all jail alternative and diversion programs while collaborating with only select participants implicates the impartiality of the programs. CJC Rule 1.2. A court employee's involvement with managing these programs that exclude a defense representative violates CJC Rule 1.2, CJC Rule 2.2, CJC Rule 2.3(A), CJC Rule 2.12(A).¹

III. Pretrial Hearings and Pre/Post Sentencing Screenings

In the question presented, the results of the screening determination are shared with the Court, District Court Probation, and the City Attorney, but not defense counsel. In this case, the appearance of impartiality is implicated and violates CJC Rule 1.2; CJC Rule 2.2; CJC Rule 2.3(B); CJC Rule 2.12(A).

In EAO 18-04, the committee concluded that a court employee could not conduct off- the-record interviews of unrepresented defendants for a pre-trial risk assessment.² Screenings of criminal defendants conducted by court employees may raise ex parte and appearance of impartiality concerns. EAO 18-04.

IV. Management of Court House Security

A judge has certain legal responsibilities with respect to court security and an obligation to adhere to the CJC. To the extent management of the court facility does not compromise appearance of impropriety, impartiality and unfairness, there is no concern about overseeing management of court house security under the CJC.

V. Conclusion

Collaboration with justice partners is encouraged, but collaboration with only select court participants in the management of jail alternative and diversion programs under the facts presented violates CJC Rule 1.2, CJC Rule 2.2, CJC Rule 2.3(A), CJC Rule 2.3(B), and CJC Rule 2.12(A). Also, since the results of pre/post sentencing screenings are not provided to defense counsel, the appearance of impartiality is implicated and violates CJC Rule 1.2, CJC 2.2, CJC Rule 2.3(B), and CJC Rule 2.12(A). A court employee may participate in management of courthouse security if such participation is otherwise in compliance with the CJC and applicable laws. Since there is a fundamental structural flaw in the jail alternative program which creates an appearance of impropriety by failing to include a defense representative at critical stages, the committee does not consider other possible issues presented by this question.

¹  We question whether the court and its employee should be managing incarceration and detention of adult persons in jail facilities as those are traditionally executive branch responsibilities; thus, assuming responsibility for those activities may appear to compromise the independence, integrity or impartiality of the court violating CJC Rule 1.2, CJC Rule 2.3, and CJC Rule 2.4(C).

²  "The goal of implementing vigorous, dynamic pre-trial risk assessment services to assist judges with performing their duties as required by CrR 3.2 and CrRLJ 3.2 is laudable. However, doing so must not come at the cost of the underpinnings of a fair and impartial justice system." EAO 18-04.

Opinion 23-01

02/28/2023