Opinion  Opinion 2024-1

Date:	04/01/2024
Organization:	Massachusetts Supreme Judicial Court

Ethical Opinions for Clerks of the Courts

Running for the Register of Probate without leave of absence.

Dear ____________,

This is in response to your email to the Advisory Committee on Ethical Opinions for Clerks of the Courts (“the Committee”) dated March 8, 2024, regarding obtaining a waiver of the requirement to take a leave of absence while you run for the position of Register of Probate for _____________ County.

You are currently holding the appointed position of Temporary Register of Probate  for _____________ County,______________ ________, ____ upon the retirement of the former Register, _____________, who was elected to the position of ______________________ County. You state that you will be running for the position to fill the rest of former Register ___________ term.

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.

Canon 1 of the Code of Professional Responsibility for Clerks of the Courts defines the word “Clerk Magistrate” as meaning “anyone serving in the position of Clerk Magistrate, Register…”. Canon 1 further states that “The words ‘elected Clerk Magistrate’ shall also include a person who is appointed to complete the term of an elected Clerk Magistrate.” Therefore, although you have been appointed to the position of Temporary Register of Probate, you were appointed to complete former elected Register Michael Carey’s term, and as such, you are, for the purposes of Canon 6, an elected Register. 

Canon 6 of the Code of Professional Responsibility for Clerks of the Courts addresses circumstances in which a Register shall refrain from political activity and elected office. However, Canon 6 specifically exempts elected Registers. Therefore, it is the opinion of the Committee that, as an elected Register, (by virtue of having been appointed to fill the term of an elected Register), you are exempt from the prohibitions contained in Canon 6. 

“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 Register is required to devote the entire time during normal court hours to the duties of the office. Canon 4 requires a Register 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 Register must also convey the appearance of impartiality. (See Canon 4(A)). Also, Canon 5(A) prohibits a Register 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.

In accordance with the Canons cited above, you are prohibited from campaigning on court time or on site at the courts, you cannot use court resources for your campaign, and you must spend your work hours solely on your duties as Temporary Register.

Further, 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, 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