That “Caesar’s wife must be above suspicion” is a well-known, often spoken proverb. It means simply that an individual in the public forum must avoid attracting negative attention or scrutiny. This saw is employed as a criterion of ethical behavior or conduct above and beyond that required by law or even custom. It is a societal expectation. Sometimes the standard is characterized as avoiding even the appearance of impropriety or a conflict of interest.
Lawyers are subject to published canons of ethics in every state and national bar to which they belong. Judges and others associated with the practice of law, including legislators, are subject to similar codes of conduct. (Curiously, however, Supreme Court justices have no written code of ethics to govern their conduct.) In large part, adherence to ethical codes relies upon the cooperation of each individual to whom they may apply. Some violations can cost an attorney his license to practice, e.g., personal use of a client’s escrow funds or receipt of an overly generous gift by a legislator. For this same reason, public figures, especially elected ones, are generally required to file financial disclosures. But, then, there are the gray areas.
We face ethical (and sometimes moral) choices virtually every single day–whether to stop fully at a stop sign, or pad charitable deductions on tax forms. For the most part, such ethical dilemmas are wholly within the control of the individual and guided by conscience or scruples. On other occasions, such ethical choices are also governed by formal codes of conduct providing, insofar as possible, a more public guide to the individual.
In Hampton, Virginia, a motion has been filed in a criminal case contending that the dual roles of an assistant Commonwealth’s attorney (CA) who is also a state delegate creates a conflict of interest for the presiding judge. In particular, the CA/delegate serves on a House committee overseeing courts and judges. The alleged conflict of interest runs to the presiding judge. The legal motion alleges that the legislative role and prosecuting attorney duality could bias the judge.
But the dual roles of the legislator raise another, somewhat different conflict–that involving “incompatible offices” as Virginia state law describes it. In the Hampton court instance, both conflicts are present. Ruling on the motion may be a herculean test of ethical proportions for the judge. Recusal alone may not be a solution because the legislator’s committee oversight applies to all judges, including any recusal replacement. Nor does transfer to another jurisdiction relieve the potential conflict.
We face ethical (and sometimes moral) choices virtually every single day. . . . For the most part, such ethical dilemmas are wholly within the control of the individual and guided by conscience or scruples. On other occasions, such ethical choices are also governed by formal codes of conduct providing, insofar as possible, a more public guide to the individual.
As the motion before the court contends, the House Courts of Justice Committee on which the prosecutor serves not only staffs all judges across the Commonwealth of Virginia but also conducts periodic performance reviews and oversees the reelection of incumbent judges hoping to serve new terms. Drawing from this relationship, the motion before the Hampton judge further alleges that the prosecution’s presence in front of a judiciary that has such a clear and compelling reason to show deference to him, would erode confidence in the courts’ independence. In the world of jurisprudence, however, it is the presiding justice who will render a decision.
The legislator was first elected in 2016 in a special election and was employed at that time as an assistant Commonwealth’s attorney in Suffolk. He was reelected in 2017 and 2019. That summer of 2019, he was appointed as a prosecuting attorney in Hampton. Once seated in the legislature, he was appointed to the House Courts of Justice Committee, a 21-member panel that, as noted, helps select, evaluate, and reappoint state judges. A provision of the Commonwealth’s Constitution appears upon its plain language face to define the matter:
No person holding a salaried office under the government of the Commonwealth, and no judge of any court, attorney for the Commonwealth, sheriff, treasurer, assessor of taxes, commissioner of the revenue, collector of taxes, or clerk of any court shall be a member of either house of the General Assembly during his continuance in office. No person holding any office or post of profit or emolument under the United States government, or who is in the employment of such government, shall be eligible to either house. [VA Const. Art. IV.]
In a handbook, the National Conference of State Legislators (September 2020) discusses the dual role issue:
Some states allow legislators to hold multiple state or local offices if there is no risk of a conflict between the positions’ responsibilities. A conflict may exist if the dual roles would result in a dilution of the checks and balances between different offices or branches of government. Often, such conflicting roles are referred to as “incompatible offices.”
Virginia’s outlook on the matter of incompatible offices presents some room to work around the conflicts. In 2009, the Commonwealth’s Division of Legislative Services opined as follows:
Can I serve as a temporary assistant Commonwealth’s attorney when the General Assembly is not in session? Answer: Yes. Article IV, Section 4, of the Constitution prohibits an attorney for the Commonwealth from serving in the General Assembly but does not by its terms prohibit a member serving as an assistant Commonwealth’s attorney on a temporary basis while the General Assembly is not in session. A 2002 Attorney General’s opinion expressly overruled prior opinions extending the dual office-holding prohibitions of Article IV, Section 4, and Article VII, Section 6, to deputies of the officers named.
Virginia is reasonably clear that an individual may not serve simultaneously in two elected offices but may serve in an appointed and elected office. However, the 2009 opinion applied to a “temporary” appointed position on a temporary basis. It appears on any reading of the applicable material that the Hampton matter remains open for some resolution.
The rule of law may be bent by ethical zigging and zagging at the same time as a defendant’s fate is to be decided. Were the defendant, or plaintiff for that matter, a relative of the Hampton prosecutor, would not the ethical conflict be more clear? No party in a legal action is anonymous; ethical considerations bind all.