Opinion 95-8

December 1, 1995

Opinion 95-8

Dear:

          This is in response to your letter of October 26, 1995 requesting the opinion of the Advisory Committee concerning any conflict of interest which you might have in running for the position of Register of Probate in County.

          You are currently the First Assistant Register for the Probate and Family Court in County. You have held that position since July, 1987. You have been employed in the Register's Office since 1972. You are considering running for the position of Register of Probate if the incumbent Register decides not to seek re-election. In addition to you and the Register, there is currently one other employee, a deputy assistant register, working in the Register's Office. You have informed a member of this Committee that, to your knowledge, the deputy assistant has no intention of running for the position of Register.

          In opinion #95-5, this Committee first discussed its role under the new Trial Court policy allowing waiver of the requirement that a leave of absence be taken by Trial Court employees running for elective office. In that opinion, we stated that 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. We noted that each request must be reviewed on its facts.

          After considering your request, the members of the Committee are of the opinion that, based on the facts of which we are aware, your continued employment while running for the position of Register does not violate the Code, provided that you comply with the provisions of the Canons cited below. We find your situation similar to that described in opinion #95-5, which also involved a small office with a first assistant register considering running for the position of Register if the incumbent chose not to seek reelection.

          We remind you of 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.'" Advisory Opinion #95-5.

          We emphasize that our opinion is based on the facts you have provided. If the incumbent Register were to seek reelection, or the deputy assistant register were also to run for the office, our opinion may be different.