Judges can’t write recommendation letters for executive branch nominees, panel says

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Maryland judges may not write letters of recommendation for gubernatorial nominees who are being considered to serve as secretaries of executive branch agencies, the state Judicial Ethics Committee said in a new published opinion.

The four-page opinion comes as the Senate’s Executive Nominations Committee is poised Monday to consider a second round of Cabinet-level nominees named by Gov. Wes Moore.

Maryland’s Judicial Ethics Committee published the opinion following a request from a judge who was contacted by “individuals recently nominated by the Governor to be the secretaries for two state agencies.”

The opinion does not identify the judge or the nominees. The judge “knows the people professionally, having worked with them for many years prior to his/her tenure on the bench and in a limited capacity as a judge,” according to the opinion.

The judge declined an invitation to address the Senate Executive Nominating Committee but sought ethical advice on whether a letter of recommendation would be appropriate.

The ethics panel concluded that judges cannot write letters of recommendation under those circumstances. Members of executive branch agencies often appear in court for a variety of reasons, and a judge writing a letter of recommendation for the potential secretary of a state-level department could undermine litigants’ confidence that they will be treated fairly.

“… Seeking a recommendation from the judiciary for an executive branch position may well undermine a reasonable person’s confidence by appearing to be too closely associated with members of the executive branch as well as implying that the judiciary is involved in the hiring or appointment process of government officials,” the committee wrote.

In general, judges are allowed to provide letters of recommendation if they follow certain guidelines. Judges can offer references or recommendations based on their personal knowledge of an individual’s qualifications for a particular role, the committee wrote.

But they may not “participate in [extrajudicial] activities that would appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality” under the Maryland Code of Judicial Conduct. Writing a letter of recommendation for an executive nominee could cause litigants to question a judge’s impartiality, the committee concluded.

The committee also examined similar requests in other states. Ethics panels in Kentucky and New Jersey have previously cautioned judges against offering letters of recommendation related to public-sector work.

Maryland judges are also prohibited from appearing voluntarily before an executive or legislative body for a public hearing, except to discuss matters related to “the law, the legal system or the administration of justice.”

“As the requestor properly determined, appearing in person before the Senate Executive Nominating Committee would be prohibited because the matter does not concern the law, legal systems, or the administration of justice, except in the most tangential way,” the ethics committee wrote. “The same would apply to a letter of recommendation because it would be, for all effects and every practical way, a voluntary appearance at a public hearing.”

Maryland Appellate Court Judge Kathryn Grill Graeff chairs the 15-member ethics committee, which consists of seven sitting judges, four former judges, a circuit court clerk, a judicial appointee and two people who are neither lawyers nor employed by the Maryland Judiciary.