Under the former Ohio Code of Judicial Conduct, could a part-time juvenile court referee continue to serve as the President of, and run for re-election to, his local Board of Education, and was he required to file an annual financial disclosure statement?

Currency note

The Board's status list flags this opinion as Withdrawn by Board action on December 5, 1997 due to O.A.G. Opinions 277 (1907), 141 (1909), 512 (1910), 120 (1965), and 86-004 (1986). The opinion was issued under the former Ohio Code of Judicial Conduct, which was superseded by the current Ohio Code of Judicial Conduct effective March 1, 2009. Treat this page as historical context, not current guidance. Verify against current rules and any applicable Ohio Attorney General incompatible-offices analysis before acting.

Plain-English summary

A part-time juvenile court referee who served as the President of his local Board of Education and wished to run for re-election asked whether continued service on the Board was consistent with the former Code, and whether he was required to file an annual Financial Disclosure Statement under Canon 6. The Board began by treating the part-time referee as a part-time judge for Code purposes.

On the Board of Education service, the Board read former Canon 5B(1) and (2) as the governing provisions. Canon 5B permitted a judge to participate in civic and charitable activities that did not adversely affect impartiality or interfere with judicial duties, including service as an officer, director, trustee, or non-legal advisor of an educational organization not conducted for the economic or political advantage of its members. Canon 5B(1) barred service when the organization was likely to appear in proceedings before the judge or was regularly engaged in adversary proceedings, and Canon 5B(2) required disqualification in any case affecting the organization.

Applying the rule, the Board concluded that the referee could not preside in cases involving the Board of Education. The referee had already agreed with his appointing judge not to do so. The Board cited Canon 2's appearance-of-impropriety requirement as also applicable.

On financial disclosure, the Board read Compliance Section A(1) as requiring the part-time referee to file an annual Financial Disclosure Statement.

Common questions

Q: Could the referee serve on the Board of Education?

A: Yes, subject to Canon 5B(1) and (2). The referee could not preside in cases involving the Board of Education, had to disqualify from any case in which the decision could affect the Board, and had to avoid the appearance of impropriety.

Q: Was the part-time referee required to file an annual Financial Disclosure Statement?

A: Yes, under former Compliance Section A(1).

Q: Why was the opinion withdrawn?

A: The Board's status list states the opinion was withdrawn by Board action on December 5, 1997 in light of Ohio Attorney General Opinions 277 (1907), 141 (1909), 512 (1910), 120 (1965), and 86-004 (1986). The 1987 opinion does not analyze the incompatible-offices doctrine those opinions addressed.

Citations and references

Rules of Judicial Conduct:

• Former Canon 2, Canon 5B(1), and Canon 5B(2), Ohio Code of Judicial Conduct (1973, 1984)
• Former Compliance Section A(1), Ohio Code of Judicial Conduct (1982)

Other authorities (cited as basis for withdrawal in status list):

• Ohio Attorney General Opinions 277 (1907), 141 (1909), 512 (1910), 120 (1965), 86-004 (1986)

See also

• Ohio BPC Opinion 1987-014: Part-Time Referees Practicing Law
• Ohio BPC Opinion 1987-003: Judge on Foundation Board

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/03/Op-87-032.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 87-032

[Withdrawn- by Board on Dec. 5, 1997 due to O.A.G. Ops. 277 (1907), 141 (1909), 512 (1910), 120 (1965), 86-004 (1986)]

SYLLABUS: A part-time referee is considered a part-time judge for purposes of the Code of Judicial Conduct and may serve as a member or officer of a local Board of Education, PROVIDED such activity does not reflect adversely upon his impartiality or interfere with the performance of his judicial duties. A part-time referee should not serve as a member or officer of a local Board of Education if it is likely that said Board will be engaged in proceedings that would ordinarily come before him or will be regularly engaged in adversary proceedings in any court. Additionally, a part-time referee should disqualify himself in any case in which his decision could affect any organization which he serves as either an officer or member of its Board and he should avoid even the appearance of impropriety in all his activities.

TO: Mark Huberman, Esq.

FROM: The Board of Commissioners on Grievances and Discipline of the Judiciary

DATE: June 22, 1987

We have before us your request for our opinion on whether, as a part-time juvenile court referee, you may continue to serve on the local Board of Education. In your request letter you indicate that currently you are the President of your local Board of Education and wish to run for re-election to the Board in November. In addition, you wish to know whether you are required to file an annual Financial Disclosure Statement under Canon 6 of the Code of Judicial Conduct.

In regard to your first question, it is our opinion that you may serve on the local Board of Education as long as you act within the limitations set forth in Canon 5(B) which states in part:

A judge may participate in civic and charitable activities that do not reflect adversely upon his impartiality or interfere with the performance of his judicial duties. A judge may serve as an officer, director, trustee, or non-legal advisor of an educational, religious, charitable, fraternal, or civic organization not conducted for the economic or political advantage of its members, subject to the following limitations:

(1) A judge should not serve if it is likely that the organization will be engaged in proceedings that would ordinarily come before him or will be regularly engaged in adversary proceedings in any court.

(2) A judge should disqualify himself in any case in which the decision could affect any organization which he serves as either an officer or member of the board.

Code of Judicial Conduct Canon 5B(1) & (2) (1984).

As a part-time referee serving on the local Board of Education, you may not preside in cases involving the Board of Education. As a juvenile court referee it is unlikely you will be involved in such cases and, according to your letter, you have already agreed not to do so with the judge who appointed you. Furthermore, under Canon 2 you should avoid impropriety and the appearance of impropriety in all your activities. Code of Judicial Conduct Canon 2 (1973).

In regard to your second question, as a part-time referee, you are required to file a Financial Disclosure Statement. Code of Judicial Conduct Compliance Section A(1) (1982).

In conclusion, it is our opinion, and you are so advised, that you may ethically remain on the local Board of Education so long as you comply with the aforementioned standards and limitations set forth in the Code of Judicial Conduct.

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 & Discipline
of the Judiciary