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Ethical Opinions for Clerks of the Courts
This letter is in response to your letter to the committee requesting an opinion relative to your being a candidate for elected public office without taking a leave of absence. The Trial Court Personnel Policies and Procedures Manual (the "Manual") requires an employee who becomes a candidate for elected public office and wishes to continue employment without taking a leave of absence to request and receive approval from the Court Administrator. Where applicable, such requests must be accompanied by an opinion from this committee concerning the existence of any conflict of interest affecting the employee's action.You note in your letter that Canon 6 of the Code exempts elected Clerk-Magistrates from its prohibitions on political activity. However, as we have stated in the past, "although with respect to political activity, Canon 6 distinguishes between an elected and an appointed Clerk Magistrate, the Code's provisions regarding impartiality and the appearance of impartiality apply to both elected and appointed Clerk Magistrates. See Canon 1 of the Code which stresses that the purpose of the Code is to 'contribute to the preservation of public confidence in the integrity, impartiality, and independence of the courts' and Canon 4's requirement that a Clerk-Magistrate 'should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judicial branch of government"'. Opinion 2007-1 Because these and other Canons apply to you and your candidacy, the committee has considered your request.
You are the elected Clerk of Court in ____County and a candidate for the Office of District Attomey in the same county. You state that a required leave of absence would have an adverse impact on the operation of the Court and be a hardship to you and your family. You have removed yourself from serving as special magistrate presiding over criminal matters, opened a campaign headquarters and hired personnel to perform all activities relating to the campaign. As we have in response to previous requests regarding the need for a leave of absence, the committee has reviewed your request with a view towards identifying the ethical considerations that may be implicated when a Clerk-Magistrate runs for elective office. Because the office you seek is outside the Judicial Branch but plays a critical role in the justice system, your situation presents issues that have not arisen in connection with prior inquiries.
The fact that you are a candidate for District Attorney in the same county where you are the elected Clerk presents concerns regarding potential conflicts of interest and the appearance of impartiality, the fundamental principles underlying all the provisions of the Code. Canon 4 (B) of the Code, Personal Affairs, provides that:
"A Clerk-Magistrate shall conduct personal affairs in such a way as not to cause public disrespect for the court and the judicial system. A Clerk-Magistrate shall not engage in activities nor incur obligations which would tend to detract from the dignity of the Clerk-Magistrate's office or interfere or appear to interfere with official duty. A Clerk-Magistrate shall not engage in outside activities which would cast doubt on his or her capacity to decide impartially any issue that may come before the Clerk-Magistrate in any official capacity."
Similarly, Canon 5, Outside Activities, prohibits a Clerk-Magistrate from engaging in activities which might "interfere with the performance of the duties of the office."
The committee discussed whether the measures you have taken to remove yourself from performing the duties of a Clerk-Magistrate in criminal cases are sufficient to ensure the appearance of impartiality. A majority of the committee is of the opinion that the fact that you are no longer performing the duties of a magistrate in criminal cases is not sufficient to ensure the appearance of impartiality. The fact that your campaign has required you to withdraw from your role and duties as magistrate in itself is problematic under the Canons which prohibit activities that interfere with official duty. Your request does not indicate who is currently performing those duties. It is the view of a majority of the committee that if an employee whom you supervise has assumed those duties, issues affecting the appearance of impartiality remain.
In the past, the committee has found that where a Clerk's involvement in a matter created the appearance of partiality, it was reasonable to conclude that the conflict extended to employees who were under the Clerk's direct supervision. See Opinion 2004-3, finding that Canon 4 required a proceeding involving the Clerk's spouse to be conducted by an assistant clerk who was not under the Clerk's supervision or control. (See also 2007-1 "We considered whether it would be advisable to delegate the administration of all such cases (present and future) to the First Assistant Clerk or another Assistant Clerk. Because the Assistant Clerks are subject to your supervision, such delegation may not cure the problem.")
In Opinion 97-2, the committee advised an elected Clerk that the Clerk's endorsement of a candidate for the position of Register of Probate would be in conflict with the Code. Because the opponent of the candidate had frequent contacts with the Clerk's Office, the committee found that the endorsement could present an appearance of partiality contrary to the requirements of Canon 4. A majority of the committee has similar concerns about your situation. Your campaign opponent or employees of your opponent have frequent contacts with the Clerk's Office which you head. You are ultimately responsible for all of the work of the Clerk's Office. Thus, even if you are not personally involved in decisions relating to scheduling, bail and other matters in criminal cases, the public could reasonably perceive that you have overall responsibility for those matters. As the committee has often stated, the appearance of impartiality is as important as actual impartiality in promoting public trust and confidence in the courts.
In sum, because you are the official head of the office where your opponent and the employees of your opponent regularly appear, the provisions of the Code governing the appearance of impartiality and public confidence in the impartiality of the courts are implicated in your candidacy for the Office of District Attorney. For that reason, your situation raises different ethical issues than previous requests regarding campaigns for offices within the Judicial Branch. For the same reason, your candidacy has different implications under the Code from that of a Register of Probate who is running for the Office of District Attorney.
As stated at the outset, our review of your request has been limited to consideration of the implications under the Code of your continuing to hold the Office of Clerk while campaigning for the Office of District Attorney in the same county. Our concerns are with the need for public confidence in the impartiality of the courts. We express no opinion as to whether there are alternative assignments in other counties or within the Judicial Branch that would not implicate the provisions of the Code.
We recognize your good .intentions to perform your duties ethically and professionally, and we recognize the value of the extensive work you perform for the courts on various programs and committees. We note, however, that "the Canons are designed to operate prophylactically. The Rules do not await an actual impropriety nor do they depend upon recusal to solve conflicts where the situation is one which 'might reasonably create' them. A determination that they apply does not presume any lack of integrity by the Clerk." 2007-1
Christine P. Burak, Esq.
Secretary, Advisory Committee on Ethical Opinions