Opinion  Opinion 2024-5

Date:	04/29/2024
Organization:	Massachusetts Supreme Judicial Court

Ethical Opinions for Clerks of the Courts

Running for the position of Clerk of Courts without leave of absence.

Dear Assistant Clerk Magistrate,

This is in response to your email to the Advisory Committee on Ethical Opinions for Clerks of the Courts (“the Committee”) dated April 17, 2024, regarding obtaining a waiver of the requirement to take a leave of absence while you run for the position of Clerk of Courts for _______ County.  You are an appointed Assistant Clerk Magistrate at the _____________ Court. The current Clerk will be retiring this year and you will be running for election to that position. You would like to continue your employment without having to take a leave of absence. You request an opinion on any requirements to take an unpaid leave of absence to pursue your candidacy. 

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.

The Committee has 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.

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. You will need to weigh whether donations to your campaign from an attorney or member of the public who appears before you or seeks assistance from you could give rise to the appearance of partiality in violation or detract from the dignity of the office of Clerk-Magistrate.   

The Committee restates its view that inquiries regarding the need for any leave of absence are within the domain of the Court Administrator. "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." See Opinion 2023-5.

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