Running for office of Clerk without leave of absence from Acting Clerk position

May 18, 2012

Opinion 2012-4

Dear Acting Clerk:

This is in response to your letter dated May 2, 2012.  You have been appointed Acting Clerk of Courts for  ___________ County upon the retirement of the elected Clerk. In anticipation of running for the position of Clerk, you are seeking an opinion from this Committee as required by the Trial Court Personnel Policies and Procedures Manual.   You would like to run for the office without taking a leave of absence because a required leave would be a hardship to the community and to the court. Section 8.02 F of the Manual states that requests to the Chief Justice for Administration and Management for approval to run for office without taking a leave of absence must be accompanied by an opinion from the Advisory Committee on Ethical Opinions for Clerks of the Courts regarding the existence of any conflict of interest.

As we have stated in previous opinions, 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. To that end, we repeat 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.' " Opinions 2008-1 , 2012-3 .