Opinion  Opinion 2023-5

Date:	10/12/2023
Organization:	Massachusetts Supreme Judicial Court

Ethical Opinions for Clerks of the Courts

Appointed Clerk Magistrate running for an elected Clerk Magistrate position in a different county while continuing employment.

Dear Clerk Magistrate __________________,

This is in response to your email to the Advisory Committee on Ethical Opinions for Clerks of the Courts (“the Committee”) dated September 11, 2023, regarding obtaining a waiver of the requirement to take a leave of absence while you run for the position of Clerk Magistrate in ________ County. You are an appointed Clerk Magistrate of the __________ District Court in Middlesex County and intend to run for the position of _______ County Clerk. You explained that you will not engage in campaigning nor do any kind of other work involving the campaign during the time when you are responsible for performing your duties as a Clerk Magistrate in the _____________ District Court.

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. 

We have stated in previous opinions in response to similar inquiries that we view the role of this Committee as limited to providing advice on the implications that the Code of Professional Responsibility would have on your candidacy.  As you note in your request to the Committee, Canon 6 of the Code states that an appointed clerk may become a candidate for an elected Clerk Magistrate position. “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.” Opinion 2000-6.  For purposes of compliance with the Code, we repeat general advice that was provided on prior occasions. 

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, 2020-2.

How these general principles apply to your situation will depend on the details of the campaign, such as the identities of the other candidates or potential candidates, the nature of the campaign, whether there is a likelihood that those who contribute to your campaign will be appearing in the _________ District Court and possible other factors which cannot be known at this time. The Committee does see a potential for conflict of interest.  For example, your campaign will be raising money for your election. An attorney or member of the public who has donated to your campaign could appear before you for a Magistrate’s hearing.  In this scenario, even if you recuse yourself, as Clerk Magistrate, you supervise the other Assistant Clerk Magistrates. This could give rise to the appearance of partiality in violation of Canon 4 (A) and could detract from the dignity of the office of Clerk Magistrate in violation of Canon 5(A).

It is possible that other ethical considerations under the Code may arise as the campaign goes forward. Furthermore, we remind you that our opinion relates only to the Code of Professional Responsibility for Clerk of the Courts. Trial Court Personnel Policies and Procedures Manual, the State Ethics Commission, Regulations of the Office of Campaign and Political Finance, and other statutes and rules may bear on your situation.

Sincerely,
Christine P. Burak, Esq.
Secretary, Advisory Committee on Ethical Opinions for Clerks of the Courts