The Ethics Advisory Committee has been asked by a justice court judge whether the judge's court clerk may participate in a city mobile watch program. The city conducting the program is within the jurisdiction of the court.

According to materials provided by the requester, mobile watch is a community program in which citizens are trained by law enforcement to assist in deterring crime. Participants must complete eight hours of training, which training includes information on various crimes, patrol tactics, and communication with police. Mobile watch teams consist of two persons who patrol designated neighborhood boundaries. Participants do not leave their vehicles and are not allowed to carry weapons. Mobile watch participants are provided a cellular phone to report suspicious activity to the police. The participants may also communicate with neighbors about risky behavior such as leaving garage doors open or leaving personal property unattended.

Rule 3-109 (3)(A)(ii), Utah Code of Judicial Administration, states that with limited exceptions not applicable here, opinions should not address the conduct of persons other than the requester. Because the judge is concerned about the behavior of a clerk, the opinion request may appear to be an inquiry into the conduct of others. However, Canon 3C(2), Utah Code of Judicial Conduct, states that "a judge should require staff, court officials and others subject to judicial direction and control to observe the standards of fidelity and diligence that apply to the judge." Thus, judges have a responsibility to ensure that court employees comply with certain provisions of the Code. In answering this question, the Committee is advising the judge as to the judge's administrative responsibilities to ensure that court employees comply with applicable provisions of the Code.

Court employees must comply with those Code provisions which deal with fidelity and diligence. In Informal Opinion 97-6, the Ethics Advisory Committee determined that a court employee must comply with the Code when accepting governmental appointments. The Committee found that governmental appointments present an issue of fidelity. In making this determination, the Committee noted that governmental appointments may "erode the appearance of impartiality" and may "interfere with the effectiveness and independence of the judiciary." Activities on the part of court employees which may undermine the appearance of impartiality or independence of the judiciary are prohibited under the Code.

In Informal Opinion 97-5, the Ethics Advisory Committee stated that a judge may not attend a law enforcement administrative checkpoint or participate in a law enforcement ride-along because this may create the impression that law enforcement is in a special position of influence or it may create the appearance that a judge is partial toward law enforcement. Any time a judge or court employee participates in activities involving law enforcement, impartiality appearances will be a concern. The issue in this situation is therefore whether the mobile watch program is sufficiently linked to law enforcement as to create an appearance of partiality. If the mobile watch participants are acting as an arm of law enforcement then participation will be prohibited. If participants are simply engaged in a community or neighborhood program, with law enforcement playing no significant role, then participation will be permitted.

The materials provided by the requester state that a mobile watch participant "has no police authority and is to act as eyes and ears only, reporting suspicious situations in the neighborhood to the police." This language creates concerns as to the participant's activities. Although the mobile watch participants do not have authority to arrest persons, carry weapons or otherwise exercise law enforcement authority, they are acting as additional "eyes and ears" of law enforcement officials. The program encourages participants to directly assist law enforcement agencies. The participants patrol the community specifically looking for illegal activity in order to report that activity to law enforcement. Participants are observing on behalf of law enforcement and assisting law enforcement in deterring crime.

Because of this connection to law enforcement activities, persons may reasonably question the impartiality of the court and its connection with community law enforcement if a judge, or court personnel closely identified with a judge, participate. The court clerk should not participate in the mobile watch program and the judge should comply with her ethical administrative responsibilities and ensure that participation by a court clerk does not occur.