Opinion  Opinion 2020-2

Date:	02/12/2020
Organization:	Massachusetts Supreme Judicial Court

Ethical Opinions for Clerks of the Courts

A Case Coordinator/Deputy Assistant Register would like to run for the position of Register of Probate while continuing employment in the same court.

Dear __________,

This is in response to your letter of January 30, 2020 in which you request an opinion on whether you may run for the position of Register of Probate without taking an unpaid leave of absence. You are a Case Coordinator/Deputy Assistant Register in the _________ Division of the Probate and Family Court. You write that the Register will not be seeking reelection in 2021 and you would like to run for the position while continuing your employment. You note that 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 response to similar requests in the past, the Committee generally views its role 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.  See Opinions 2000-3, 2006-3, 2008-1.

In Opinion No. 2000-2 we 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, it is the Committee's view that your adherence to the advice set forth above would be sufficient.  We remind you that our opinion relates only to the Code of Professional Responsibility for Clerk of the Courts. Trial Court personnel policies, and other statutes or rules, e.g. Regulations of the Office of Campaign and Political Finance, may bear on your situation.  

Christine P. Burak, Esq.
Secretary, Advisory Committee on Ethical Opinions