Under the former Ohio Code of Judicial Conduct, could a common pleas judge serve on a county hazardous-materials task force whose purpose was to make recommendations on the county's ability to respond to hazardous materials incidents and spills?
Ohio BPC Opinion 87-013: Judge on Governmental Hazardous Materials Task Force
Short answer: The Board concluded that, under Canon 5G of the former Ohio Code of Judicial Conduct, a common pleas judge should not serve on a county hazardous-materials task force, because Canon 5G prohibited a judge from accepting a governmental committee appointment concerned with issues of fact or policy on matters other than the improvement of the law, the legal system, or the administration of justice, and the concern was sharper given that the judge might preside over cases involving county landfills.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the Ohio Board of Professional Conduct's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.
Currency note
The Board's status list flags this opinion as a Former CJC Opinion providing advice under the former Ohio Code of Judicial Conduct, which was superseded by the current Ohio Code of Judicial Conduct effective March 1, 2009. The status list also notes subsequent rule amendments to Canons 1 through 6 effective May 1, 1997. Treat this page as historical context, not current guidance. Do not rely on the former Canon 5G reference as a current Ohio rule. Verify against current rules before acting.
Plain-English summary
A common pleas judge in Clermont County asked whether membership on the Clermont County Hazardous Materials Task Force, a body charged with reviewing and recommending on the county's ability to respond to hazardous materials incidents and spills, would violate the former Ohio Code of Judicial Conduct. The Board read Canon 5G as controlling. Canon 5G provided that a judge should not accept appointment to a governmental committee, commission, or other position concerned with issues of fact or policy on matters other than the improvement of the law, the legal system, or the administration of justice; ceremonial occasions and historical, educational, and cultural activities were carved out.
The Board reproduced the Canon 5G commentary, which warned that the appropriateness of conferring extra-judicial assignments on judges must be reassessed in light of the demands of crowded dockets and the need to protect courts from involvement in controversial extra-judicial matters. The Reporter's Notes identified the rationale for Canon 5G as preventing "time and prestige of the judiciary [from being] expended on the resolution of non-judicial public issues" (Thode, Reporter's Notes 90 (1973)).
The Board cited McKay, The Judiciary and Non-Judicial Activities, 5 L. & Contemp. Prob. 9, 25 (1970), for the proposition that participation by judges in resolving highly visible and sensitive public issues entrusted to public commissions could lend credence to claims that the courts were part of the political process. On the specific facts, the Board concluded that the judge should not serve on the Task Force, particularly because the judge might preside over cases involving county landfills.
Common questions
Q: What did Canon 5G prohibit?
A: Canon 5G prohibited judges from accepting appointment to a governmental committee, commission, or other position concerned with issues of fact or policy on matters other than improvement of the law, the legal system, or administration of justice. Ceremonial occasions and historical, educational, and cultural activities were carved out.
Q: Did the Board find the hazardous-materials task force fell within the law-improvement carve-out?
A: No. The Board read the task force's mandate (reviewing and recommending on the county's ability to respond to hazardous materials incidents and spills) as a non-judicial public-policy issue rather than improvement of the law, the legal system, or the administration of justice.
Q: Did the prospect of related cases coming before the judge sharpen the conflict?
A: Yes. The Board noted that the conflict was particularly clear because the judge might preside over cases involving county landfills.
Citations and references
Rules of Judicial Conduct:
- Former Canon 5G, Ohio Code of Judicial Conduct (1973)
Other authorities:
- E.W. Thode, Reporter's Notes to Code of Judicial Conduct, 90 (1973)
- McKay, The Judiciary and Non-Judicial Activities, 5 L. & Contemp. Prob. 9 (1970)
See also
- Ohio BPC Opinion 1987-003: Judge on Foundation Board
- Ohio BPC Opinion 1987-009: Retired Judge on Restoration Committee
Source
- Landing page: https://ohioadvop.org/advisory-opinion-index/
- Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/03/Op-87-013.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
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 87-013
[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: Under Canon 5G of the Code of Judicial Conduct, a judge should not accept appointment to a governmental committee that is concerned with issues of fact or policy other than the improvement of the law, the legal system, or the administration of justice.
TO: Judge Robert P. Ringland, Clermont County Court of Common Pleas
FROM: The Board of Commissioners on Grievances and Discipline of the Judiciary
DATE: June 22, 1987
We have before us your request for an informal advisory opinion on whether your membership on the Clermont County Hazardous Materials Task Force would violate the Code of Judicial Conduct (the "Code"). In your request letter, you state that the purpose of the committee is to review and make recommendations relative to hazardous material and the ability of the county to respond to incidents and spills.
As you point out in your request letter, Canon 5G is applicable to your situation. Canon 5G states:
A judge should not accept appointment to a governmental committee, commission, or other position that is concerned with issues of fact or policy on matters other than the improvement of the law, the legal system, or the administration of justice. A judge, however, may represent his country, state, or locality on ceremonial occasions or in connection with historical, educational, and cultural activities.
Code of Judicial Conduct, Canon 5G (1973).
The commentary to Canon 5G provides some insight to the limitations on extra-judicial assignments as set forth in the Canon. The commentary states:
Valuable services have been rendered in the past to the states and the nation by judges appointed by the executive to undertake important extra-judicial assignments. The appropriateness of conferring these assignments on judges must be reassessed, however, in light of the demands on judicial manpower created by today's crowded dockets and the need to protect the courts from involvement in extra-judicial matters that may prove to be controversial. Judges should not be expected or permitted to accept governmental appointments that could interfere with the effectiveness and independence of the judiciary.
Code of Judicial Conduct, Canon 5G Commentary (1973).
The rationale for the adoption of Canon 5G was that the "time and prestige of the judiciary should not be expended on the resolution of non-judicial public issues." E. W. Thode, Reporter's Notes to Code of Judicial Conduct, 90 (1973).
In an article on this issue, Dean McKay commented in part that:
[w]henever issues that are highly visible and sensitive are entrusted to a public commission for resolution or recommendation, the results are unlikely to satisfy all the critics, perhaps none. Participation in such a process by members of the judiciary is less likely to settle a troublesome public issue than to lend credence to the all-too-common charge that the courts are part of the political process . . .
McKay, The Judiciary and Non-judicial Activities, 5 Law & Contemp. Prob. 9, 25 (1970).
Given the language of Canon 5(G), its commentary, the reasoning behind the adoption of Canon 5G, and Dean McKay's comments, we are of the opinion that you should not serve on the Countywide Hazardous Materials Task Force. This is especially true in light of the fact that you may be presiding over a case involving county landfills.
Therefore, it is the opinion of the Board of Commissioners on Grievances and Discipline of the Judiciary, and you are so advised, that membership on the Countywide Hazardous Materials Task Force would be in violation of Canon 5G of the Code, as adopted by the Supreme Court of Ohio.
This opinion is advisory in nature, is based upon the facts as presented and is limited to questions arising under the Code of Judicial Conduct.
James W. Mason, Esq.
Secretary, Board of Commissioners
on Grievances and Discipline