Solicitation of funds to run for position of Clerk of Courts.

March 29, 1994

Opinion 94-3

Dear Clerk:

You wrote the Advisory Committee on Ethical Opinions on February 18, 1994; your letter requested the Committee's opinion on the following five questions:

"Must I take a leave of absence to run for the position of Clerk of Courts if the present Clerk does not retire prior to the expiration of her term, in light of the balancing test set forth in Williams v. Mason, et al., CA 91-30218-F, United States District Court for the District of Massachusetts, or would it violate the conflict of interest provisions of M.G.L. c.268A or Canons of Ethics promulgated for Clerks?"

"If it is found that I must take a leave of absence, from what date must that leave take effect?"

"Should my candidacy be unopposed, and I must take a leave of absence, may I return to work after the State primary, or must I wait until after the state election date?"

"May I utilize my due vacation days until their expiration prior to the actual "Leave" status taking effect so that I am able to have a source of income?"

"When, and under what circumstances may funds be solicited for my campaign?"

After a review of the questions it is the Committee's opinion that the only one we are able to comment on is number 5:"When, and under what circumstances may funds be solicited for my campaign?" Canon 6 of the Code of Professional Responsibility for Clerks of Courts specifically states:

"A Clerk-Magistrate, other than an elected Clerk-Magistrate, shall refrain from political activity and, in particular, shall not:

(3) solicit funds for a political organization or candidate;"

Paragraph (4) of that Canon also states that an "appointed Clerk-Magistrate may become a candidate for an elected Clerk-Magistrate position. . . ." While Canon 6(3) broadly prohibits a clerk-magistrate from solicitation of funds for a political organization or candidate, the Committee takes note of the provisions of Mass. Gen. Laws. c.55, §13, which provide, inter alia, that "the soliciting of . . . money . . . by a non-elected political committee organized to promote the candidacy for public office of a person so employed for compensation by the commonwealth . . . shall not be deemed to be a direct or indirect solicitation . . . by such person. . . ." In light of these provisions, it is the committee's opinion that the solicitation of funds for your candidacy by such a committee would not violate Canon 6(3).

The other four questions that you have raised in your letter are governed by other authorities and do not fall within the purview of the Committee. The Trial Court Personnel Manual and the Massachusetts General Laws may be relevant in answering those questions.