A Question of Ethics
Just the Right Treatment
Edited By Peter Kiefer
Fall 2007
Introduction
The topic of outside employment is a fascinating ethical area. In our presentations around the country, Karl
Thoennes and I have found many who firmly believe most employment outside the court is acceptable as long as it
occurs outside of normal business hours. Ethics codes take a more restrictive view, though some leave the door ajar.
The American Judicature Society’s (AJS) Model Code for Non Judicial Employees, lays out criteria for acceptable
work outside the court, Section III: Conflicts of Interest, Subsection D states “Each full–time court employee's
position with the court system must be the employee's primary employment. Outside employment is acceptable as
long as the work [criteria paraphrased]:
1)
2)
3)
4)
5)
6)
7)
8)
Doesn’t regularly conduct business with the court system;
Doesn’t require the employee to have frequent contact with attorneys regularly appearing in court;
Allows the employee to work outside of normal working hours:
Is compatible with the employee's court duties;
Doesn’t require practicing law;
Doesn’t require disclosing confidential information;
Isn’t in the judicial, executive or legislative branches; and
Doesn’t adversely reflect on the integrity of the court.
The NACM code, though more succinct, leaves open the door. Article I Section F reads, “Members shall not
request or accept any compensation or fee beyond that received from their employer for work done in the course of
their public employment. However, members may engage in outside employment as long as it does not conflict
with the performance of their official responsibilities or violate this code.”
This ethical issue is becoming a more common concern. With our country’s ongoing economic struggle many court
employees now hold second jobs. In addition, problem–solving courts, as an example, require a broad range of
client services and are staffed by fiercely dedicated teams; the drive to satisfy client needs can be powerful. When
does outside work become incompatible with court work?
The Scenario
Kim is a probation officer deeply devoted to Drug Court and drug treatment. Unfortunately, her court currently
works with but a single drug treatment vendor: Rite Way Treatment. Despite soliciting extensively for proposals
last year, Rite Way was the only vendor to bid and was naturally selected to run the treatment program. Rite Way,
being a private vendor, is concerned over the bottom line; group sessions and services tend to be austere in favor of
turning a quarterly profit.
Kim, who has a degree in psychology and years of probation experience, arranges her own informal after hours
group sessions for probationers genuinely trying to kick the drug habit. The sessions become increasingly popular
and Kim inevitably starts charging for attendance to cover her expenses. She adds educational sessions and
development stages. She is careful not to direct any of her own probation caseload to her sessions, though some
start coming on their own and paying for the sessions anyway. Kim learns that Judge Patterson is pleased that he
now has a second viable treatment option, even if it isn’t officially sanctioned by the County. Kim realizes that the
Drug Court coordinator, (without asking Kim) is getting Judge Patterson to exempt some participants from the
contract vendor and directing referrals to Kim’s sessions.
Kim goes to Judge Patterson for advice since she is unsure if she has a conflict of interest. Patterson (delighted with
the progress reports he is getting) assures Kim that whatever concerns she has should be allayed with the knowledge
that her sessions are “truly saving lives”. Fortunately, Kim’s program is small enough that it floats below Rite
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Way’s “radar”, with the program already swamped with referrals. Interestingly, Kim never goes to her supervisor.
She sees herself on a practical level as working for Judge Patterson rather than her supervisor whom she rarely sees.
In addition, Kim adamantly contends that whatever she does on her off hours is “none of my supervisor’s business.”
Respondents
I was lucky enough to have Barry Randell, Director of Court Services for the City of Toronto, Canada; Frank
Maiocco, Trial Court Administrator with the Kitsap County Superior Court in Port Orchard, Washington; David B.
Lauver, Supervisor of Juvenile Probation and Parole for the Lancaster County Court of Common Pleas, Lancaster,
Pennsylvania, and Jason D. Stauffer, Program Director, Office of Coordinated Services for the Lancaster County,
Pennsylvania Adult Probation and Parole Services Lancaster County Court of Common Pleas 1 to respond to
questions about the scenario.
The Questions
Is Kim violating either the NACM or AJS codes?
All the respondents agreed that Kim was in violation since she was receiving additional income for her off–hours
services by virtue of her position as a probation officer. She also probably violated competitive procurement policies
and has put probation in a difficult position when the time comes to explain to Rite Way why the court has allowed
this arrangement to continue.
Barry Randell asked, “What happens if a probation condition is to stay off drugs and, as the counselor, Kim knows
the person to be in violation. If she is paid to provide counsel does she breach the client and return him to custody?
The conflict is obvious and her relationship with the judge does not override her relationship with her employer.”
Frank Maiocco thought Kim, “. . . should cease any further business with her own local Court/County,
notwithstanding the benefit it offers to the local Drug Court. Providing the same services for probationers or Drug
Courts in adjacent counties avoids much of the conflict, provided her business arrangement is established through a
competitive bid process, and does not place her in a position of performing both on– and off–hours services for the
same clients.”
David Lauver, and Jason Stauffer noted that Kim could be in compliance if she were facilitating the groups as part
of her assigned duties and with her supervisor’s knowledge. “In our respective departments, both juvenile and adult
probation officers routinely conduct group sessions during regular business hours and after hours. Although some of
these group sessions are considered part of the employee’s regular job duties, some court employees actually receive
additional payment from the Court. The difference between our groups and Kim’s ‘business venture’ is that our
groups are officially sanctioned by the Court.”
“Additionally, management keeps a careful watch on them to assure that conflicts of interest do not arise
considering that the facilitators could also potentially provide probation supervision to participants of the group.
Plus, remuneration is not going directly from the client to the Court employee. Even if Kim’s groups were made
legitimate in this manner, we would question whether her actions constitute a breach of a contractual obligation.
Most jurisdictions have detailed procedures that must be followed when a service is bid. By knowingly accepting
officially sanctioned referrals, she is actively participating in the violation of that contract and bidding procedures.”
David, Jason, and Frank noted that it is unclear if Kim was violating the NACM code. David and Jason said,
“Although one could argue that she violates the NACM code because her group sessions are part of her court
employment, since the referrals are made by the Judge, it’s just as easy to argue that she is not technically violating
the letter of that policy.”
Do we need to revise the codes to include this type of situation?
David and Jason see the difficulty of an ethics code envisioning every possible situation. “The beauty of a wellcrafted ethics policy is that it is written in general enough terms to encompass a wide variety of situations. We
would not recommend specifying this situation in any ethics policy. Doing so unnecessarily lengthens the policy (as
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My thanks to Mark Dalton, District Court Administrator for the Court of Common Pleas Lancaster, Pennsylvania for helping
coordinate David Lauver and Jason Stauffer’s responses.
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other specific scenarios would undoubtedly be deemed necessary in the future) and would possibly produce the
effect of narrowing the scope of any well-crafted, generalized principle as individuals interpreting the policy may be
inclined to focus on the concrete item.”
To Barry, the existing codes clearly envision conflicts such as the one depicted. Frank disagreed believing that
ethics codes are based on a traditional view of judicial systems and have not addressed concepts such as Drug
Courts. He commented, “With the evolution of problem–solving courts, the growth of innovative and highlyeffective diversion programs, and the expansion of new, potentially–overlapping, quasi–judicial skill sets entering
the court arena, a more definitive ‘conflict of interest’ provision is necessary.”
Can you propose a “bright line” employees can follow?
Frank’s proposed “bright line” is that, “. . . employees engaged in the provision of off–hours services are prohibited
from contracting with or engaging in business with any Court or judicial entity in which they regularly work.”
Barry’s proposed bright line simply put, “If the work you do away from the office brings you into contact with those
your primary employment does, then there is likely a concern. Talk with your manager and get advice.”
David and Jason suggest that Court employees run all outside employment by their supervisors. “Although not
really a ‘bright line’ all staff should look to the bottom line goals of general jurisdiction trial courts: assuring that
people have equal access to justice, building and maintaining the public’s trust and confidence, and doing so with
integrity and accountability. Outside employment should be appropriate so long as it does not conflict with these
goals or the goals of any respective specialized units within the Court.”
Doesn’t Kim’s good work justify any technical violation of the ethics codes? Since Kim is on her own time,
what possible harm could she be doing?
Barry thought the added services are beneficial. “If so, then consider resigning as a probation officer, compete for
the Drug Court work and, if successful, begin your new career.”
Frank saw that although what Kim is accomplishing is laudable, it does not justify her continuing business
relationship with her own court. “In fact, as long as the potential for her perceived conflict of interest is possible,
Kim’s efforts may result in more bad than good in the long run. A single complaint by one probationer could
potentially undo everything that she has successfully accomplished. Similarly, as Kim’s efforts meet with greater
success and her business grows, Rite Way may balk at the nature of her relationship with the Court, leading to an
open challenge of the Court’s procurement practices and jeopardizing the Court’s reputation, particularly in the use
of unsanctioned treatment services.”
David and Jason said that if her supervisor agrees, then she could continue as a part of her Drug Court job
responsibilities but not accept any fees. “By having the groups become part of her regular job the ethical issue does
not exist unless, of course, our speculation on the contractual and bidding procedure violations hold true. If this is
the case, then Kim would need to cease immediately since the Rite Way provider could bring legal action against the
court that would be too easily viewed as scandalous court corruption by the general public. Rather than focusing on
her own perceived ‘goodness,’ she should focus on the mission and goals of the court and her department.”
My thanks again to Barry Randell, Frank Maiocco, David Lauver and Jason Stauffer for their insightful comments
on off–hours jobs and conflicts of interest. These excellent responses plainly show the increasing importance of this
topic that needs to be reviewed with wages growing tight and the demand for court services expanding. If you have
an ethical issue you would like to discuss, or if you have comments on this scenario, please contact me at
pkiefer@superiorcourt.maricopa.gov.
I also invite you to visit Karl Thoennes’ court ethics website
http://www.courtethics.org., where Karl has assembled a variety of ethical codes.
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