Opinion  Opinion 90-1

Date:	09/28/1990
Organization:	Massachusetts Supreme Judicial Court

Ethical Opinions for Clerks of the Courts

Membership in political committees.

Dear Clerk:

In your letter to the Committee dated March 1, 1990, you seek the Committee's opinion on a series of questions pertaining to political activity. You state that the facts relevant to your inquiry are as follows: You have been a member of the Hampshire County Democratic Committee in a non-leadership capacity for several years. On you were elected as an uncommitted delegate to the Democratic State Convention. On you were elected a member of the Democratic Committee for the Town of . You note that these events all occurred prior to the February 9, 1990 adoption of the Code of Conduct for Court Clerks.

The adoption of the Code of Conduct has caused you to seek the Committee's opinion on the following questions:

"A) (1) Does the wording of Canon 6 that a "Clerk-Magistrate . . . . shall refrain from political activity" prevent me from being a member of the Democratic Committee(s)? (2) Is it limited to a leadership or office holder position? (3) Am I prohibited from making monetary political contributions to a candidate or organization? (4) Am I prohibited from attending political fundraisers? (5) Does the Code differentiate between state and local candidates? *The numbering of the questions is this Committee's.

B) If the Democratic Committee(s) vote to endorse a candidate (or organization) is abstention by me sufficient compliance with section (2) of Canon 6?

C) Am I prohibited from seeking new dues paying members to join the Democratic Committee(s) by virtue of the wording of section (3) of Canon 6?"

D) A further question was posed concerning your attendance as an elected delegate at the state Democratic convention June 1-2, 1990, which was disposed of directly by the Supreme Judicial Court and is therefore moot.

Canon 6 of the Code of Professional Responsibility for Clerks of Court provides:

"Canon 6 Political Activity and Elective Office. A Clerk-Magistrate, other than an elected Clerk-Magistrate shall refrain from political activity and, in particular, shall not:

(1) act as a leader or hold any office in a political organization;

(2) make speeches for a political organization or candidate or publicly endorse a candidate for public office;

(3) solicit funds for a political organization or candidate;

(4) hold or seek an elective office if there is a substantial likelihood that matters involving that office will come before the Clerk-Magistrate or the court in which the Clerk-Magistrate serves. An appointed Clerk-Magistrate may become a candidate for an elected Clerk-Magistrate position. An appointed Clerk-Magistrate who holds elective office at the time of the adoption of this Code may continue to serve consecutive terms in that office.

With respect to question (A)(1) the Committee concludes that your elected membership on the Democratic Town Committees is prohibited by the general prohibition on political activity contained in Canon 6. In addition, the Committee finds that your election to the town and county committees falls within the specific language of Canon 6(1) which prohibits a Clerk-Magistrate from holding "any office in a political organization." Since the democratic party committees frequently publicly endorse candidates for public office, the language of Canon 6(2) may also be applicable. The Committee discussed whether your holding office on the committees prior to adoption of the Code entitled you to the exemption contained in Canon 6(4). The Committee concluded that this exemption does not apply where the office involved is one in a political organization and therefore proscribed by Canon 6(1). Also, the Committee notes that you were granted a waiver by the Supreme Judicial Court to serve as a delegate to the Democratic State Convention. If the Court found that your holding this elective office of convention delegate prior to adoption of the Code made the exemption in Canon 6(4) applicable, a waiver by the Court would not have been necessary. With respect to question A(2), as our response to question A(1) indicates, the Canon's prohibition is not limited to a leadership or office holder position.

In response to question A(3), the Committee concludes that you are not prohibited from making monetary contributions to a political candidate or organization.

With respect to question A(4), a Clerk-Magistrate is prohibited by Canon 6 from soliciting funds, making speeches or publicly endorsing a candidate. Attendance by a Clerk-Magistrate at a political fund raiser is subject to these restrictions. Attendance at dances, testimonial dinners, or other social events that are the primary function where some fundraising may occur has to be weighed by each Clerk-Magistrate on the merits of the occasion and the potential message that the Clerk-Magistrate's attendance will broadcast.

With respect to question A(5), the Committee finds that the Code does not differentiate between state and local candidates.

The Committee's answer to question A(1) makes it unnecessary for the Committee to address question (B).

With respect to question (C) the Committee finds that under Canon 6(3) you are specifically prohibited from seeking new dues paying members to join the Democratic Committees.

The waiver granted by the Court makes it unnecessary for the Committee to respond to question D.