Restrictions on political activity of District Court assistant clerk who is a candidate for clerk-magistrate of Superior Court; leave of absence, bail responsibilities.

March 16, 2000

Opinion 2000-2

Dear

This is in response to your letter of February 10,2000 requesting an opinion of the Advisory Committee concerning your candidacy for the position of Clerk-Magistrate of the Superior Court. Presently you serve as an Assistant Clerk at District Court. Before undertaking any further political activity you have requested that four questions be answered.

First, you would like to know what restrictions on your daily activities as an Assistant Clerk would be necessary once you declare your candidacy. The answer is found in two previous opinions (95-5 and 95-8), copies of which are attached. In Opinion numbered 95-5 this Committee stated the following which would apply to you:

"We draw your attention to the following provisions of the Code. Under Canon 3 a Clerk-Magistrate is required to devote the entire time during normal court hours to the duties of the office. Canon 4 requires a Clerk-Magistrate to perform the duties of the office impartially and in a manner 'that promotes public confidence in the integrity and impartiality of the judicial branch.' In addition to being impartial, a Clerk-Magistrate must also convey the appearance of impartiality. (See Canon 4(A).) Also, Canon 5(A) prohibits a Clerk-Magistrate from engaging 'in activities which might detract from the dignity of the office of Clerk-Magistrate or interfere with the performance of the duties of the office."'

With respect to questions 2 and 3, it is the Committee's opinion that inquiries regarding the need for and type of any leave of absence are within the domain of the Chief Justice for Administration and Management. See Personnel Policies and Procedures Manual, 8.802. Our role is limited to providing advice on the implications that the Code of Professional Responsibility would have on your candidacy. Decisions as to the need for a leave of absence seem to us to be management decisions beyond the mandate of this Committee, depending in part on factors relating to the office of the prospective. For purposes of compliance with the Code, your adherence to the advice set forth above would be sufficient.

As to question 4 concerning your bail responsibilities, if you do not take a leave of absence and your duties as assistant clerk encompass bail responsibilities, then you must fulfill your duties in accordance with the advice set forth above so long as you maintain your position as an assistant clerk. You may wish to consult the Bail Administrator for advice on administrative and scheduling issues concerning bail.