Continuing employment as assistant clerk if candidate for position of clerk

May 3, 2006

Opinion 2006-3

Dear Assistant Clerk:

This is in response to your letter in which you request an opinion on whether there would be a conflict of interest in your continuing your employment as an assistant clerk if you become a candidate for the position of Clerk of Court for Criminal Business in the court where you work. You note that the previous elected Clerk Magistrate resigned his post. You state that there are no other candidates within the Trial Court and possibly one candidate from outside the Trial Court. Section 8.802(F) of the Trial Court Personnel Policies and Procedures Manual requires that you request the opinion of this Committee.

As we have stated in Opinion Nos. 2000-2 ; 2000-3 ; 2000-6 , we view the role of this Committee as limited to providing advice on the implications that the Code of Professional Responsibility would have on your candidacy. In this regard, we restate the advice we have given on prior occasions.

"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.'" Opinion 95-5 .

In Opinion Nos. 2000-2 and 3 we further stated our opinion that inquiries regarding the need for any leave of absence are within the domain of the Chief Justice for Administration and Management. "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 candidate, the office where the position is in contest, and the nature of the campaign. For purposes of compliance with the Code, your adherence to the advice set forth above would be sufficient."