84.22

OPINION NO. 84-22

An inquiry has been received from a Chief Deputy Clerk of a Circuit Court concerning whether employees of the Clerk of Court's Office (the Clerk's Office) may engage in outside employment as private process servers for attorneys.

The Constitution of Maryland establishes a Circuit Court for each County and Baltimore City (Article IV, §20). Section 1-501 of the Courts and Judicial Proceedings Article, Annotated Code of Maryland, describes the circuit courts as "the highest common-law equity courts of record exercising original jurisdiction in all civil and criminal cases within its county...." Included in the Circuit Court's jurisdiction are criminal cases, commercial claims and negligence cases (where the claim exceeds $2,500), and divorce and related domestic relations matters. Generally, the Circuit Court handles major civil cases and the more serious criminal matters. It may also decide appeals from the District Courts and from certain administrative agencies, and only the Circuit Courts hear jury trials.

The Constitution of Maryland also establishes a Clerk of the Circuit Court for each County and Baltimore City (Article IV, §25). The Clerk is elected and holds office for a four-year term. The general duties of the Clerk are set forth in §2-201(a) of the Courts and Judicial Proceedings Article, and include, among other things, making "proper legible entries of all proceedings of the court and keeping them in well bound books or other permanent form," recording any paper filed with the office and required by law to be recorded in the appropriate place, issuing all writs which may legally be issued from the court, and administering oaths. The Clerk's Office thus acts as the keeper of records of court cases, land transactions and licenses and also as supportive staff to the Court. In court cases, when cases are filed, the Clerk's Office prepares the court file, issues the writ, summons, or subpoena as requested by the Court or attorneys, and certifies (authenticates) court orders.

The employees who are the subject of this request work in the Civil Section of the Clerk's Office's Judicial Branch. Of the five sub-units of the Civil Section, these employees are in the Case Maintenance Section. They work on the "B" Docket dealing with divorce and other domestic relations matters, and are responsible for the filing of papers and documents related to existing cases. Their duties include filing orders relating to divorce cases as they come back from judges, and answering questions of the public and attorneys or attorney offices regarding case status, filing procedures, service on parties to the case, and costs. They have indicated that approximately 65% of the inquiries come from attorneys or their secretaries and 35% from the general public. According to the employees' supervisor they do not set hearing dates, but can refer uncontested divorce cases to an examiner or master, depending on who is next to be scheduled.

These employees may also receive and process motions or other pleadings in an existing case that are received in the mail or filed in person. Returns and affidavits of private process servers in divorce cases are also processed by these employees and others in the Divorce Section. The Maryland Rules allow the Clerk's Office to reject the filing of pleadings only in very specific instances, for example, where the attorney has failed to sign the documents, failed to pay a filing fee or failed to file a Certificate of Service where required by the Rules. (Maryland Rule 1-323.) According to the supervisor, the Clerks in the Divorce Section are closely supervised and are not in a position to affect the disposition of any case.

The present request involves the employees' interest in continuing private part-time activities serving court-issued summons, writs and subpoenas at the request of private attorneys. Both of the employees indicate that they have in the past served papers at the request of attorneys, though these activities have been discontinued while this request has been pending. Both of the employees state that they have served papers on their own time either before or after work, and that generally they were paid in cash by the attorney. The past and proposed activities for both would be operated as a sole proprietorship. There would be no formal business entity established (such as a corporation or partnership), and the two do not contemplate working together. Apparently fees would be based on the location of the defendant, and would vary depending on the distance to be traveled and the nature of the location. No fee would be charged if the individual is not served. Neither individual proposes to advertise or solicit business, or print or distribute business cards or stationary. They would rely on "word of mouth" to get business, and would serve papers only at the request of attorneys.

The employees anticipate, however, that their business would be from attorneys primarily involved in domestic matters and divorce cases with whom they are familiar from their work as clerks of the Court. As such, their affidavits of service as private process servers would be filed with their own section. It is also possible that they may write or type up their affidavits on their lunch hours. One employee indicated that papers would be expected to be served for only one or two attorneys who file a large number of pleadings in domestic or divorce matters. However, because the Maryland Rules require the attorney to request a reissue of service in writing (if original service is not successful), the employees state they are not in a position to assist or hinder any particular attorney, by taking or failing to take reissue action on the attorney's behalf.

Neither the Maryland Rules of Procedure nor the Clerk's Office establishes complicated requirements for process servers. The Maryland Rules of Procedure require only that service of process in civil actions be made by the sheriff or "...by a competent private person, 18 years of age or older, including an attorney of record, but not a party to the action." (Maryland Rule 2-123.) The Rules also require the person making service by delivery of the papers to "...file proof of service with the court...." The proof is required to state the name of the person served, and the date and the manner of service. When the service is made by an individual other than the sheriff the proof of service must be by affidavit. (Maryland Rule 2-126.)

The Deputy Clerk, who submitted this request, has expressed some concerns regarding the practice of clerks serving court papers for attorneys. She believes that a potential for abuse exists because of the relationships formed between the clerks and attorneys. She is concerned that if this practice were allowed, others in the office may abuse the practice and use their positions to solicit business and carry out private activities on State time. Apparently even if we were to find that these proposed outside activities are not barred by the Ethics Law, the Clerk's Office may issue its own directive prohibiting the activity.1 The Deputy Clerk indicates that Clerks in some other jurisdictions have rules forbidding this type of activity for employees.

These individuals are employed in the judicial branch of State government and are therefore State employees as that term is defined in §1-201(i) of the Ethics Law. Their proposed activities thus present several potential issues under the conflict of interest provisions in Title 3 of the Law. These include the §3-101 participation prohibition, the outside employment and interest limitations of §3-103(a) and 3-105, and the §3-104 bar against the use of the prestige of office for private gain. Application of these provisions to this particular situation could involve several complex questions of legal interpretation dealing with the employees' relationships with the attorneys or the parties to lawsuits, and with the authority relationships of the Court and the Clerk's Office to the attorneys and parties. These issues would be especially relevant, for example, to consideration of the application of the §3-103(a)(1)(i) prohibition against having employment or interests with entities that are under the authority of one's agency.

We have reviewed the circumstances of this situation, however, and do not believe that resolution of these issues is necessary for us to advise the Clerk's Office and these employees. In our view, these employees have sole proprietorship businesses with which they have an employment relationship, and from which they have economic gain, regardless of their relationships with the attorneys and the parties to the cases and regardless of how one defines the authority of the Court or the Clerk's Office over them. We therefore believe that the advice sought in this request can be provided based on the application of §3-103(a)(i)(ii) and 3-104, without reliance on the provisions of §3-103(a)(1)(i) or the other provisions that depend upon strictly defined legal relationships. Section 3-103(a)(1)(ii) of the Law bars officials and employees from having any secondary employment that would impair their impartiality or independence of judgment. We have generally viewed this section as an inconsistent employment provision that complements the more strictly worded authority and contract provisions of subsection (a)(1)(i), applying it where there is a relationship between official duties and private affiliations that raises clear and serious concerns about the likelihood of a conflict of interest or appearance of conflict.

In recent Opinions involving subsection (a)(1)(ii) we have looked for some existing State duties that could be anticipated to be impacted by the private relationship. (See, for example, Opinions No. 84-7, No. 83-39, No. 83-30, and No. 83-21.2 We believe that such a situation exists here. While it appears from the facts presented to us that many of the official duties of the Clerk (if done properly) are administrative, the fact remains that these employees interact on a daily basis with the attorneys with whom they propose to have private affiliations. The function of their positions is to provide support services to the court, and also to attorneys and others being served by the court system. If their private service of process were to be an issue in later court proceedings, the employees could be called as witnesses by these attorneys, and their status as employees of the court would be known. In our view, these circumstances clearly bring this situation within the inconsistent employment bar, since the service of process for attorneys with whom they have official dealings may give the appearance of conflict and favoritism that is addressed in §1-102(b) of the Law and intended to be avoided by §3-103(a)(1)(ii).

Another provision of the Law that applies here is §3-104, which prohibits an official or employee from using the prestige of his office for his own benefit or that of another. This section has been interpreted to bar acceptance of fees or other payments for private services that flow directly and immediately from one's employment with the State. (See Opinions No. 83-25, No. 83-9, and No. 83-4.) The facts here suggest that the employees' work as private process servers would flow from relationships established with attorneys through the Clerk's Office. Both employees indicate that they expect to rely on word of mouth for business, and it is difficult to visualize that this communication would not include their identification as clerks at the Circuit Court. Moreover, the employees are familiar with the process serving needs of attorneys and are themselves known to the attorneys solely by virtue of their State service in the Clerk's Office. Both of these individuals' job descriptions show almost daily contacts with attorneys. In our view, the individuals' establishment of private economic relationships with the same attorneys with whom they deal or could deal in their official capacity would constitute the intentional use of their official position for their own economic benefit, that is, to procure clients for their private process serving businesses.

The prohibitions in §3-103(a)(1)(ii) and 3-104 are specific limitations in implementation of the express legislative finding in §1-102(b) of the Ethics Law that the conduct of the State's business should not be "subject to improper influence or even the appearance of improper influence." In interpreting these provisions, we have not generally applied the Law's conflict of interest provisions to absolutely bar activities merely because some potential abuse was possible in a particular situation. Rather, we have looked to the circumstances to determine that they create real conflict of interest concerns that could be held by reasonable members of the public as contemplated in §1-102(b). We believe, however, that this request presents the type of situation where these types of concerns are raised and where the appearance of conflict that arises from these employees' official position requires application of the Law's prohibitions to absolutely bar their proposed activity.

We believe that this inquiry involves, to some extent, the same kinds of considerations addressed by us in our Opinion No. 82-8. Though this request involved a direct prohibition under §3-103(a)(1)(i) of the Law, it also required an evaluation of the remoteness of the private and official relationships in connection with application of our outside employment exception regulations. The individual's private business there tended to bring him into regular contact with his agency. We noted in evaluating that situation that the individual

is well-known in the agency and his physical presence at the agency's facility could represent an opportunity for advance knowledge of [the agency's] needs. Moreover, his ability to pick up and deliver in connection with his own travel to and from work appears to give him an advantage over his competitors competitors not similarly situated. Under these circumstances, we do not believe that a conclusion that the possibility of a conflict of interest or the appearance of a conflict of interest is remote is appropriate here...[T]he conflict of interest provisions of the Ethics Law are...concerned with avoiding situations where public confidence is undermined by the ability [of officials or employees] to use their official position to advance their economic interests.

Though the situation here varies in some particulars from the one addressed in Opinion No. 82-8, we believe that the same principle applies. These employees are on site at the Clerk's Office working with the very documents and files that they will be handling as private process servers. Their availability to some attorneys would appear to give those attorneys with whom they are affiliated an advantage over others who do not hire Clerk's Office employees. Their position in the Clerk's Office would thus, in itself, enhance their ability to attract private process serving business.

Moreover, in our view, the fact that these individuals' duties may be characterized as administrative does not in any way lessen the extent of potential concern presented by this situation. The Clerk of the Court's Office has been viewed by the Courts as a position of public trust. The Court of Special Appeals, for example, has summarized the Clerk's position as follows:

The Clerk of Court occupies a particularly sensitive position of public trust. The proper administration of his office entails the closest relationship and cooperation of his staff with the courts themselves. Public confidence in the even and equal administration of justice will be eroded unless the highest standards of official conduct are recognized and heeded by judges and the agents or officers of the court alike. Chester v. State, 32 Md. App. 593, 609-610 (1976).

Also, the fact that the Courts themselves are concerned that the relationship between employees of the Clerk's Offices and attorneys must avoid any suggestion of impropriety is reflected in Rule 1220 of the Maryland Rules, which prohibits the giving or receiving of gifts, gratuities or any compensation from attorneys to an individual related to the individual's official duties and not expressly authorized by law. 032;

Under all of these circumstances, we believe that the provisions of the Ethics Law must be applied to bar the employees' provision of private processing services to attorneys, however the relationship with the attorney is characterized. We therefore advise the particular employees that are the subjects of this Opinion that their private activities as described to us are prohibited by §3-103(a)(1)(ii) and 3-104 of the Ethics Law. We also advise the Clerk's Office of our view that this conclusion would apply as a general matter to any agency employees wishing to engage in private activities involving attorneys or persons who are filing papers or similarly dealing with the Clerk's Office.

Herbert J. Belgrad, Chairman
    Reverend John Wesley Holland
    Betty B. Nelson
    Barbara M. Steckel
    Thomas D. Washburne

Date: October 16, 1984

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1 In this connection we note that §1-103 of the Public Ethics Law (Article 40A, §1-103, Annotated Code of Maryland, the Ethics Law), specifically recognizes that more restrictive agency regulations may be applied in addition to Ethics Law provisions.

2 Except as otherwise expressly cited to the Maryland Register, citations are to Ethics Commission Opinions published at COMAR Title 19A.