Ohio Board Advisory Opinion Op 89-001

The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 3370, COLUMBUS, OH 43215-6105
(614) 644-5800 FAX: (614) 644-5804
OFFICE OF SECRETARY
OPINION 89-001
Issued February 17, 1989
[Former CJC Opinion-provides advice under the former Ohio Code of Judicial Conduct which is superseded by the
Ohio Code of Judicial Conduct, eff. 3/1/2009.]
[Not Current- subsequent rule amendments to Canons 1 through 6, Ohio Code of Judicial Conduct, eff. May 1, 1997]
SYLLABUS: Retention of a long-term employee of the court when that employee is now married
to the judge of that specific court may raise the question of nepotism but is not per se nepotism
under Canon 3B(4) of the Code of Judicial Conduct. The question of nepotism should not arise
where a judge appoints the spouse of a current court employee to a court position provided the
appointment is based on the spouse's qualifications and not his or her relationship to the court
employee.
OPINION: We have before us two separate, yet related, requests for advisory opinions. The first
request concerns the retention of a long-term employee of the court when that employee is now
married to the judge of that specific court. The second request concerns the ethical propriety of a
judge appointing the spouse of a current court employee to a court position.
Both of the requesting parties are concerned with Canon 3B(4) of the Code of Judicial
Conduct. That Canon states that a judge "should exercise his power of appointment only on the
basis of merit, eliminating nepotism and favoritism." (emphasis added) Code of Judicial Conduct,
Canon 3B(4).
Although the Code only refers to the "power of appointment," any presence of nepotism or
favoritism in the courts would necessarily lower the reputation of the court in the eyes of the public.
In fact, the Special Committee on Standards of Judicial Conduct, which drafted the current Code of
Judicial Conduct, specifically addressed a broader concern. In the Reporter's Notes to the Code it
states,
[s]ubsection (4) [of Canon 3B] is concerned with two important
powers exercised by many judges, the power of appointment and of
compensation of appointees. Reports indicate that in some
jurisdictions these are "spoils system" decisions. The Committee has
made it clear in the text and Commentary that it does not subscribe

Op. 89-001 2
to the practice of judicial patronage. This is another point at which
the failure of a few judges to comply with the appropriate standard
can cause a lowering of the public's esteem for the entire judicial
system. Thode, Reporter's Notes to the Code of Judicial Conduct, 60
(1973).
Based on the preceding comments it would seem that the requesting parties were warranted in their
concern. Upholding the integrity and independence of the judiciary is a primary concern to both
the judicial and legal communities. Code of Judicial Conduct, Canon 1.
In the first case presented, you ask whether it is ethically proper to keep a long-time court employee
on the payroll when that employee is now married to the judge of that specific court. It is the
opinion of this Board that such a situation may create the appearance of impropriety but is not, in
itself, a violation of the Code of Judicial Conduct.
The second request, relating to the propriety of a judge appointing a well-qualified spouse of
another court employee to a court position is easily answered. As long as the appointment is based
on the qualifications of the person, and not his or her relationship to the court or its employees,
there can be no question of nepotism.
In conclusion, it is our opinion and you are so advised that having the judge's spouse as an
employee with the judge's court may create the appearance of impropriety but is not per se
nepotism. Having two court employees who are related is not improper provided the employees
were selected on the basis of qualifications and not their relationship to other court employees.
This is an informal, non-binding advisory opinion based upon the facts presented and limited
to questions arising under the Code of Judicial Conduct.