Opinion  Opinion 2024-7

Date:	07/02/2024
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 opinion is in response to your inquiry dated June 4, 2024 where you wrote that you are an Assistant Clerk Magistrate in the Superior _____Court Department and have become a candidate for the position of Clerk of the ______ County Court.  You indicated that as a candidate you will not campaign or do any work involving the campaign during normal court hours.  The Court Administrator has asked you to seek an opinion from this Committee regarding your candidacy for office and whether you can be granted an exemption from the leave requirement contained in the Trial Court Personnel Policies and Procedures Manual.

The Committee views its role as being limited to providing advice on how the Code of Professional Responsibility would affect your candidacy.  See Opinion 2024-5.  Canon 3 requires that a Clerk-Magistrate devote the entire time during normal court hours to the duties of the office.  Canon 4 requires a Clerk-Magistrate to act impartially and to promote “public confidence in the integrity and impartiality of the judicial branch” and Canon 4(A) requires that a Clerk-Magistrate convey the appearance of impartiality.  (See Canon 4(A)).  Canon 5(A) prohibits a Clerk-Magistrate from activities that “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.

As the Committee stated in Opinion 2023-5, how these principles apply to your situation will depend on the details of the campaign, such as the identities of the other candidates and whether this is a contested race.  In addition, if an attorney or member of the public were to donate to your campaign and then appear before you, this could give rise to the appearance of partiality in violation of Canon 4(A) or detract from the dignity of the office of Clerk-Magistrate in violation of Canon 5(A).   

The Committee has consistently stated its view that inquiries regarding leaves 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.

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 also may bear on your situation.

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