Running for Register of Probate without taking unpaid leave.

August 3, 1995

Opinion 95-5

Dear:

This is in response to your letter dated May 8, 1995 requesting the opinion of the Advisory Committee. You are the first assistant register of the Division of the Probate and Family Court. In your letter, you request the opinion of the Advisory Committee as to whether you could run for the position of Register of Probate without having to take an unpaid leave of absence.

You provided the Committee with the following facts. You have held the position of first assistant register since 1989. Aside from the Register, you are the only employee in the office. You would consider running for the office of Register if the current Register does not seek reelection in 1996. In your opinion, since there are only 2 persons in the office, it would create a hardship if you were required to take an unpaid leave of absence for the approximately seven or eight months of the campaign season. You note that in your county "there is no hard campaigning that takes place, nor any soliciting of campaign funds, in most instances not even a campaign ad is placed in the local newspaper". You refer the Committee to Section 13.08 "Leave for Political Office" and its provisions for requesting approval of the Chief Justice for Administration and Management to continue employment without taking an unpaid leave of absence.

We begin by noting that on several occasions in the past this Committee has been presented with requests regarding the need to take a leave of absence during a campaign for office. With respect to each of those requests, the Committee has deferred to the management authority of the Chief Justice for Administration and Management (CJAM) and his interpretation of the controlling provisions of the Trial Court Personnel Policies and Procedures Manual. This Committee has recently become aware that the Trial Court has revised its policy mandating that a leave of absence be taken by employees who become candidates for elective office. Although the revised policy has not yet been incorporated in the Personnel Manual, we are informed by labor counsel for the Trial Court that the provisions of the Collective Bargaining Agreement between the Trial Court and Local 6, O.P.E.I.U. concerning leave for political office will also be applied in the case of non union employees.

The provisions of the Collective Bargaining Agreement concerning leave for political absence, contained in Section 13.08 which you included with your request to the Committee, allow an employee to request prior approval of the CJAM to continue employment without taking an unpaid leave of absence. An employee's request to the CJAM "shall be accompanied by an opinion from the State Ethics Commission and, if applicable, the Advisory Committee on Ethical Opinions for Clerks of the Courts, concerning the existence of any conflict of interest affecting the employee's action."

By this provision of the collective bargaining agreement, which will also be applied in the case of nonunion employees, the CJAM appears to seek the input of this Committee with respect to the need for a leave of absence when an employee covered by the Code of Professional Responsibility for Clerks of the Courts runs for elective office. In light of this new responsibility, we will review requests regarding leaves of absence with a view towards identifying the ethical considerations that may be implicated when a Clerk-Magistrate runs for elective office.

Under Canon 6 of the Code of Professional Responsibility, an "appointed Clerk-Magistrate may become a candidate for an elected Clerk-Magistrate position." This canon clearly allows an appointed Clerk to run for elective office. It would appear then, that at least for those appointed Clerk-Magistrates running for the position of elected Clerk, some types of political activity are permissible under the Code. At the time the Code was adopted, however, the Trial Court personnel policy required that a leave of absence be taken by employees who became candidates for elected office. Therefore, the provision in Canon 6 that allows an appointed Clerk to run for the position of elected Clerk is not necessarily dispositive of the issue of whether continued employment by a Clerk-Magistrate during a campaign for elected office creates a conflict with other canons of the Code. Depending on the circumstances and facts of each situation, other canons may suggest that taking a leave of absence while running for office would be advisable.

After reviewing the facts relating to your request, the members are of the opinion that, provided that you abide by the provisions of the canons discussed below, your continued employment while running for office does not violate the Code.

Should you run for the position of Register, 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."

We emphasize that our opinion is based on the facts presented in your letter. If the current Register were to seek reelection or other circumstances in the office were to change our opinion may also be different. On the facts you have provided, however, it is the opinion of the Committee that your continuing to work while running for the position of Register would not create a conflict of interest under the Code.