Their Primary Job Is the Court, But Do Your Employees Have a Say?
Courts, like many other government entities, are notorious for offering low pay that is offset by the promise of good health insurance and retirement. Still, many court employees find it difficult to make ends meet, so they hold down second jobs. The Model Code (Canon 1.6) states that we as court professionals should use our official position solely for its intended purpose and that we should not use our position to secure unwarranted privileges or exemptions for ourselves or others. It goes on to say (Canon 3.1) that the court is our primary employment; we should avoid outside employment and concurrent business activities that might reflect poorly on the judicial branch and on our own professionalism. When does holding down a second job impugn the dignity of the court? When does a second job reflect poorly on our professionalism?
Scenario
Arthur is the court administrator of a five-judge, general-jurisdiction trial court, which takes up one half of the second floor of a sprawling, multiagency county-government facility. Up to now, the economic comeback has missed his state. Low wages have forced many staffers to find second jobs to support their families.
Derrick, a senior clerk in the family department, is a typical example of a struggling staffer. In his off hours, Derrick sells home goods and cosmetics as a dealer for a national, multilevel marketing company. He also aggressively recruits his customers to work as dealers for him. Careful to use only his lunch breaks, he holds “get-togethers” in the county break room to both sell and recruit. He chose the county break room because it is not under court control.
Derrick uses his vacations to attend dealer conferences, and he also uses his tablet computer to log into remote company-sponsored training sessions. His training has taught him to establish a social-media presence on applications such as Twitter, Twitch, Facebook, Snapchat, WhatsApp, WeChat-Moments, Instagram, and Pinterest, to name a few.
Arthur intensely dislikes Derrick’s lunchtime “get-togethers”; he thinks they distract staff from their primary job—the court. Arthur also thinks Derrick’s second job is nothing more than a pyramid scheme and recruiting unsuspecting county workers to be dealers right in the county break room impugns the dignity of the court.
Arthur asks Rocky, the county manager, to ban Derrick’s “get-togethers” from the break room, but Rocky refuses. Rocky thinks the sessions are a pleasant distraction, especially during the cold winter months. Besides, Rocky uses the skin cream that Derrick sells.
Arthur is also convinced that Derrick uses work time to deliver purchased products to other employees. His only proof is that Derrick has a lot of the products stored in an out-of-the-way section of his office.
Finally, Arthur is sure that Derrick uses his tablet computer to work his social-media presence, although Arthur can’t prove it. Arthur asked the court’s IT guy to check Derrick’s tablet during work hours. Since the court uses the county’s server, trapping, recording, and tracking an individual’s computer access is complicated. Arthur eventually withdraws the request since he was starting to feel like a cyber stalker.
With little to go on besides his assumptions, Arthur gives Derrick an ultimatum: Either stop the selling and recruiting in the county break room or face dismissal. Derrick protests that he only conducts his business during lunch or on breaks and always in the break room. His argument is “lunchtime is my time; it’s not the court’s time.”
Arthur counters, “You and your pyramid scheme entice other employees away from their work; you and your ‘get-togethers’ are an unneeded distraction, and it lowers productivity. The court is your first job; you should be reminding other employees that the court is their primary job too, instead of getting them to join your pyramid. When you are in the courthouse, your time is court time.”
The Respondents
Here to comment on the scenario are Tiffany Hammill, human resources manager for the Twelfth Judicial Circuit in Sarasota, Florida; Christopher R. Hansard, director of the Judicial Services Division at the Georgia Administrative Office of the Courts in Atlanta; Ashley Callan, court administrator for the superior court in Spokane, Washington; and Amanda Beebe-Bay, deputy clerk for the trial courts in Juneau, Alaska.
The Questions
Do you think court employees holding second jobs is getting more common?
Tiffany Hamill, Amanda Beebe-Bay, and Ashley Callan all agreed that pay raises, which have not kept pace with the increased cost of living, have made it more common for employees to work two jobs. Tiffany said it is particularly common for employees to take direct sales jobs like the one described in this scenario. “Even with the economic recovery we’ve seen in recent years, court salaries still seem to lag behind the salaries of employees in the other two branches of government.”
Ashley agreed that public-sector employee salaries have not kept up with increases in the cost of living in many areas. “This has caused an increased number of court employees to obtain a second or third source of income.”
Tiffany gave the example of the Florida legislature not regularly granting salary increases, which would allow state employees’ salaries to keep up with the cost of living. “Furthermore, advances in technology have made it easier for individuals to work remotely at their own convenience or utilize their social-media platforms to create their own revenue streams.”
Should courts react to the increase in employees holding down second jobs?
Christopher Hansard thought courts should find out why and if it is what we suspect (low pay), then either increase pay or accept that people may need second jobs. The second job, however, cannot interfere with one’s court work.
Ashley recommended that courts constantly advocate to funding authorities for increases in salary ranges for all employees—especially entry-level positions. “As minimum wage increases, hourly wages should increase at the same rate. This would make second streams of income less necessary for court employees.”
Tiffany also warned that the court is obliged to intervene when it sees anything that could potentially distract from the court’s mission or create the impression of a conflict of interest, bias, or impropriety. “I think creating clear expectations in writing makes it much easier to identify what we’ve already defined as a conflict and intervene, if and when we see it. It also enables employees to understand what we see as a potential conflict so they can know before they take on a particular side job whether it’s likely to cause a conflict with their position with the court.”
Do you think Derrick has a duty to devote all his work time to the court?
Ashley and Tiffany believed that Derrick has a right to do what he wants on his lunch break and if he was using the county break room, the court should not interfere. Ashley said, “I believe the intent of Canon 3.1 is to direct court employees to not engage in other employment opportunities that reflect poorly on our professionalism—not discourage employees from providing for their families. I can think of several jobs that would reflect poorly on a court employee’s professionalism, but selling home goods and cosmetics is not one of them.”
Tiffany said she was not interested in regulating employee behavior during their breaks. “That being said, I don’t think a shared break room is the appropriate location to conduct these types of get-togethers or sales pitches. I’d talk to Rocky, the county manager, about ensuring that all of our employees have the same opportunity to use county facilities for the same purposes and ask if he would be inclined to allow a similar presentation by an employee who wasn’t as entertaining as Derrick, selling a product Rocky wasn’t interested in purchasing.”
Tiffany went on to point out that if Arthur found Derrick’s approach aggressive, it is possible that other employees also might. Staff have a right to take their breaks without feeling targeted as a potential customer. She suggested that there might be a meeting room in a public area where Derrick could hold his get-togethers. This could permit only those interested in participating to attend. “Our court has an electronic bulletin board on our Intranet site where employees can advertise these types of products in a passive way that doesn’t put disinterested employees in a position where they have to reject a sales pitch.”
Lunch is not work time, in Amanda’s view, so Derrick should be able to spend it however he would like. “If you are not on the clock you should be free to spend your time as you see fit.”
Christopher said that he tries not to interfere with lunch time, and generally people should be allowed to do what they want. “But they do not have a right to use public resources (rooms or equipment) to conduct their personal for-profit business.”
Is it ethical for Arthur to declare that Derrick’s time in the county building must be devoted to the court?
Neither Amanda nor Ashley thought it was appropriate for Arthur to tell Derrick what he should do with his lunch breaks. Amanda said, “If he [Derrick] chooses to spend his lunch break in the county building it is still his lunch break and his time, not the court’s time.”
Ashley felt, “As long as an employee is not engaging in unprofessional behavior while inside the county building there is no disciplinary action to be taken.”
Christopher did not see ethics entering into the discussion. “Employees are often allowed to conduct little bits of personal business at their workplace all the time. We need to make dentist appointments, talk to our spouses, etc. The issue is that Derrick is operating a for-profit business. This causes complications because employees and the public could become confused about where his business ends and the court’s begins. The dignity of the court may be impugned. This isn’t an ethical issue so much as a simple appropriate use of work resources.”
Tiffany did not think it was realistic to expect that all of one’s time in the courthouse should be devoted to the court. “When there’s other county business being conducted in the same building, I think it’s impossible to maintain that expectation. Our employees have lives outside of work, and we as supervisors and leaders need to recognize that they’re human beings who may have to attend to personal matters during work time, which is usually Monday–Friday, 8:00 a.m. – 5:00 p.m. I wouldn’t expect an employee to take a 15-minute break to leave the courthouse to call a plumber, banker, or repairman in order to make an appointment that would otherwise take him away from work for two minutes. As a supervisor, it’s inefficient; as an employee, it’s dehumanizing.”
Has Derrick’s business impugned the dignity of the court?
In Amanda’s opinion, the only way Derrick could impugn the dignity of the court would be if he was trying to run his business while also representing the court; for example, if he was running his business from the front counter or in a courtroom. “Using a break room is not the same as a courtroom or clerk’s office where the court’s work is done.”
Ashley believed the court’s dignity is still intact in this situation. “As long as Derrick is selling his home goods and cosmetics on his own time and not pressuring other employees to purchase goods, he is maintaining the professionalism expected of a court employee. When Arthur learned of Derrick’s side business, he should have counseled Derrick and reminded him to keep all activity confined to his breaks.”
Tiffany thought that Arthur owes it to Derrick, the court, and himself to have an honest conversation about how he (Arthur) views Derrick’s side work. Arthur needs to help Derrick understand what is expected of him during his work hours, and what can and cannot be done with work equipment. “It sounds like Arthur has made a lot of assumptions about Derrick’s behavior (i.e., using his work tablet to support his social-media presence and using work time to deliver products) that aren’t necessarily true, based on his personal opinion of Derrick’s product and approach. Once Arthur has a conversation with Derrick about his perception and expectations for the use of court time and equipment, Arthur needs to decide whether he believes Derrick when he says he’s not behaving inappropriately and go from there. If Derrick is a senior clerk and has supervisory authority over other employees, I would want to further discuss his approach with the employees who report to him and ensure that he is not directing his sales pitches at them.”
Tiffany went on to say that if she were in Arthur’s position and heard that Derrick’s employees felt pressured, that would definitely reflect poorly on Derrick’s professionalism, his judgment, and the overall dignity of the court.
Our growing but still fragile economy has made this phenomenon a common concern. Court employees struggle to make ends meet, and questions like this may become routine. Thanks again to Ashley Callan, Amanda Beebe-Bay, Christopher Hansard, and Tiffany Hammill for their thoughts on this timely topic.
Be sure to visit the NACM ethics web page at http://nacmnet.org/ethics. You can view the new revised NACM Code of Conduct, previous ethics columns, and educational ethics modules that your court or state association could use to present ethics training.
Want to Be a Respondent?
Would you like be a respondent on an upcoming ethics column? Do you have an ethical issue you think would make for an interesting column? Do you know someone who would like to be a respondent? Email me at ethics@nacmnet.org. I will reach out with an invitation.
ABOUT THE AUTHOR
Peter C. Kiefer has spent over four decades working for the courts in Oregon, California, and Arizona, as well as on rule-of-law projects in Liberia, Moldova, and Beirut. Contact him at kieferpeter@hotmail.com.
