Despite years of debate, accepting gifts is still one of the most challenging topics in court ethics. Many stand adamantly against court personnel accepting gifts under any circumstances; others worry that taking such an unflinching stand harms employee morale and possibly upsets the local legal culture. The NACM Code (Canon 3.3) prohibits court professionals from soliciting, accepting, or dispensing gifts, favors, or loans for oneself or for someone else if it could influence the court. Recently, a couple of folks shared a slight variation on the theme of gifts proffered to court staff. What if the appropriate authority permits an action that otherwise might be prohibited? I share this variation in the scenario below.
Morgan was hired in September as the new court administrator and appointed clerk of a five-judge court in a suburban county. She was sure that her research on the judges and the court gave her an edge during the interview. She even complimented the interview panel on the court’s adoption of the NACM model ethics code.
Friday, December 22 started as a slow day, understandably as it was the start of the holiday season. Around 11:30 a.m. a Classy Catering van pulled up in front of the courthouse and out came catering students with warming plates of veal, lobster rolls, and little crab puffs.
At first Morgan thought the catering company had the wrong address or that the court was being pranked. The students found the employee break room and started arranging the spread as Morgan tracked down the apparent person in charge. Despite being told that the $723.98 invoice had been paid by Globex Industries (including a generous tip), Morgan ordered it all repacked and taken back to Classy Catering.
She was taken aback when Presiding Judge Alcorn called to ask how the clerk’s office staff were enjoying the crab puffs. Morgan recovered enough to explain that she ordered the food returned since accepting the food violated the court’s ethical code.
Judge Alcorn’s tone went from cordial to curt in a heartbeat. “Morgan, I appreciate your youthful enthusiasm, but our folks in the clerk’s office, and they’re your folks too, work hard year-round with little or no reward. God knows we don’t pay enough to make working here financially worthwhile. Globex pays for this lunch every year just as a way of saying thank you. Besides the lunch isn’t directed toward any specific individual, so it’s all good.”
“Your honor, I realize Globex says it’s just trying to thank our employees, but a banquet like this . . . any reasonable person would naturally assume that Globex was trying to buy favor with the court.”
“Look, Morgan, if you are worried about your reputation, I will take full responsibility. You’re completely off the hook.”
“But your honor, this is a blatant ethical violation and I feel compelled. . . .” Even as she uttered those words she remembered the research she did for the interview. Judge Alcorn used to be in-house counsel for Globex Industries before his appointment to the bench.
“Morgan, a piece of advice. Grab a Coke and a smile and learn to just zip your lip.”
After a long silence Morgan thanked the judge. She walked outside and invited the caterers back into the courthouse, much to the delight of the clerk’s office staff.
Commenting on the ethical implications of accepting gifts and appropriate authorizations are Julie A. Wise, assistant clerk of court for the Second Judicial District in Reno, Nevada; Shannon Branham, deputy court administrator for the Tempe Municipal Court in Arizona; Sarah Couture, court operations manager for the Fifth Judicial Circuit in Ocala, Florida; and Theresa Ewing, director of the Fort Worth Municipal Court in Fort Worth, Texas.
Have you ever had to deal with gifts given to court staff?
Sarah, Shannon, Julie, and Theresa have all had somewhat diverse experiences involving gift giving to court staff. Sarah shared that dealing with gifts offered to court staff is a perennial problem around the holiday season. “This past December a newer JA was visiting with former co-workers from the law firm that she and her judge had come from before the judge was appointed to the bench. As she was leaving she accepted a food item and when she returned to the courthouse the judge had her call me to see if she could in fact accept it. I explained to the JA the applicable judicial canons, that she could not accept the gift, and that she needed to return it to the law firm. She explained it was from a former client who sent the same food item every year. I explained that did not matter. She asked if she could place it in a common area for everyone to share and I explained that it would still be accepting the gift. The judge ordered the JA to return it to the law firm.”
Both Julie and Theresa noted that the holiday season is a time for giving gifts and showing appreciation. Julie remarked, “Similar to Morgan’s situation, each holiday season our District Court employees are presented with de minimis group gifts from attorneys, outside agencies, and the public. Most common are boxes of candy, notes of appreciation, and flowers sent to an entire group of employees working in a department. These small tokens of ‘thanks’ are placed in breakrooms, office lounge areas, and conference spaces for all court employees to enjoy.”
“Our court does not allow gifts directed to individuals. However, supporting employees and sharing positive feedback with them is important. Therefore, I like to provide happy customers with other options. For instance, I encourage folks to write a letter to the supervisor acknowledging the great customer service they received. This letter is shared with the employee and placed in their personnel file. Management also publicly recognizes employees for outstanding work. Sharing the results of a good customer satisfaction survey is also a helpful approach to maintaining good office morale.”
Julie further explained, “Of course, it is not always easy to determine when to accept a gift or politely reject it. To help navigate these tricky situations, court administration hosts an annual court-wide review of the Nevada Model Code of Conduct for Judicial Employees. This open forum welcomes employees to share their real-life situations, brainstorm solutions, and continue to evolve in their role.”
Theresa agreed that giving gifts to court staff is a reoccurring event during the holidays. “We consistently have companies send popcorn or cookies to the staff during this time of year. We have a standing policy that states if the gift is under $20 then we can accept it as long as it is distributed to all staff.”
Shannon said that during her tenure with the Superior Court of Arizona, she was rarely exposed to situations of gifts being presented to staff outside of the occasional donut drop that was always graciously declined. “I would venture to say that this is not a phenomenon by any means, but a reflection of the culture that has been put in place by the court leadership; from the bench to the executive staff. When a community is made aware of the ethical positioning of the court as it relates to the acceptance of gifts, it can assist with minimizing gift offerings of any nature.”
Do we make “too much” out of accepting gifts?
Shannon warned that if it is possible that a court could appear to be “on the take,” the practice needs to be avoided. “The acceptance of gifts on its own does not necessarily undermine the integrity of the judiciary; however, when it is done in a way to say, ‘thank you’ as indicated in this scenario, as well as demonstrated to be in excess of the ordinary social hospitality as described in the Arizona Code of Judicial Administration, it should be avoided.”
Theresa warned that if a court accepts gifts of any value, it presents an opportunity for criticism of the court and its practices. “In Fort Worth Municipal Court, we are in a unique situation in that the clerk staff actually works for the executive branch of government. I have been told by many staff since arriving that the code of conduct does not apply to them until I give them a copy. It has been enlightening to see them embrace this new way of thinking.”
Julie pointed out that as judicial employees, we have a responsibility to avoid activities that would call into question our ability to carry out the duties of the office. “This is a high expectation requiring constant reflection, consideration, and dialogue. Unfortunately, the right answer isn’t always obvious. If clear boundaries are set, accepting de minimis group gifts can be a nice way to acknowledge appreciation for the great service provided by a department.” Boundaries can be set by asking questions such as:
- Would accepting the gift call into question the integrity and independence of the judiciary?
- Would accepting the gift interfere with performing the duties of the court?
- Does accepting the gift create a real or perceived conflict of interest?
- Is the gift for an individual or group?
- Would accepting the gift be contrary to a court rule, policy, or legal requirement?
Sarah agreed that accepting gifts is a significant issue. “In our society today, it is all about perception. It is vital for the courts to be perceived in a positive light so we can help to ensure our overall mission of justice for all. The public is not going to believe they are receiving the justice they are entitled to if they believe the court can be bought off with gifts.”
Does Judge Alcorn’s directive to accept the food relieve Morgan of her responsibility?
All the respondents felt that Morgan still had a responsibility. Sarah thought that Morgan was clearly aware of the ethical violation, and even though Judge Alcorn is a higher authority, he cannot disregard the ethical canons to which judges are held.
“The court administrator is responsible for the administration of court rules, policies, and mandatory directives,” said Julie. “This includes responsibility for employee performance. Unfortunately, these duties sometimes directly conflict with the direction of a presiding judge. It is important the presiding judge and court administrator maintain open communication, set clear expectations, and demonstrate behavior instilling trust and confidence in the court system.”
Shannon also thought that the judge’s directive did not fully remove Morgan’s responsibility to prevent the appearance of impropriety nor did it remove her from the possibility of being out of compliance with a local code or canon. “It is the responsibility of every member of the court team to preserve the appearance of impartiality.”
Theresa advised that when a court administrator is directed to do something that he or she knows is unethical, one should stand their ground. Contrary to what Judge Alcorn said, Morgan was ultimately the one who told the vendor they could bring the food back into the courthouse. “If Judge Alcorn truly wanted to shield his administrator, he would have given her the rest of the day off and accepted the food himself. Telling Morgan to ‘Grab a Coke and a smile and learn to just zip your lip’ should be a hint of things to come.”
Should Morgan have handled this incident differently?
Theresa admitted that as a new administrator, it is difficult to understand the value of having hard conversations both up and down the chain of command. “While most administrators are at the will of the Chief or Presiding Judge, you were hired because they valued your experience and knowledge. Morgan should schedule a time when she can sit with Judge Alcorn and see if they can set a policy that both of them can stand behind. If they cannot come to agreement, Morgan should start looking to find an organization that better fits her ethical standards.”
Sarah underscored the advice Theresa gave in response to question three. Morgan should have stood her ground and explained to the judge that she was trying to protect him and the court. “She should not have invited the caterer back in. Instead, she should have returned back to her office and documented the incident appropriately so that if Judge Alcorn then invited the caterers back in she had it documented what occurred.”
Shannon suggested that if Morgan was not specifically instructed to invite the caterers back into the building, perhaps she should have allowed them to leave the premises upon her initial request. “Morgan should take an opportunity to not only review national guidelines, but also her state’s local policies to assist her in clearly understanding what is expected of her and those around her in the judicial environment. She may also find resources such as a local judicial ethical advisory board or committee that is available to provide possible suggestions and guidance in these situations.”
Julie also believed that by remaining silent and permitting the caterers back into the courthouse, Morgan approved of the behavior she saw as unethical. “Court leadership is challenging, but must be executed with certainty, perseverance, and gumption. Moving forward, Morgan should revisit the court’s ethical code with her employees as well as the bench. Preparing the court to address these conflicts is a good next step. As court employees, it is important that any code of ethics is accessible to all employees, reinforced by court leaders, and modeled through our actions.”
Thanks again to Sarah Couture, Julie Wise, Theresa Ewing, and Shannon Branham for their insights involving the challenges in dealing with gifts to court staff. Be sure to visit the NACM ethics web page to see previous ethics columns and to download educational ethics modules your court or state association could use to present ethics training in your state. If you have an ethical issue you would like to discuss, or if you have comments on this or any of the previous columns, please contact me at firstname.lastname@example.org.
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 email@example.com.