Is it nepotism for a court to keep a long-time employee who married the court's judge, or for a judge to appoint the qualified spouse of a current court employee?

Currency note

This opinion was issued in 1989 under Ohio's former Code of Judicial Conduct, which was superseded by the Ohio Code of Judicial Conduct effective March 1, 2009; the Board also flags amendments to Canons 1 through 6 (effective May 1, 1997). Treat this page as historical context, not current guidance. Verify against the current Ohio Code of Judicial Conduct (including its rules on appointments and avoiding nepotism) before relying on any specific rule mentioned here.

Plain-English summary

The Board addressed two related requests. The first asked whether it was proper to keep a long-term court employee on the payroll after that employee married the judge of that specific court. The second asked whether a judge could appoint the spouse of a current court employee to a court position.

Both turned on Canon 3B(4), which provides that a judge should exercise the power of appointment only on the basis of merit, eliminating nepotism and favoritism. The Board observed that, although the Canon refers to the power of appointment, any nepotism or favoritism would lower the court's reputation, and it cited the Reporter's Notes describing concern with appointment and compensation powers and judicial patronage, along with Canon 1's concern for the integrity and independence of the judiciary. On the first question, the Board concluded that keeping the judge's spouse on the court payroll may create the appearance of impropriety but is not, in itself, a violation of the Code. On the second, it concluded that appointing the qualified spouse of another court employee raises no nepotism question as long as the appointment is based on qualifications, not the relationship.

Common questions

Q: Can a court keep an employee who later married the court's judge?

A: The Board concluded that doing so may create the appearance of impropriety but is not per se nepotism or a violation of the Code under Canon 3B(4).

Q: Can a judge hire the spouse of a current court employee?

A: Yes, on merit. The Board concluded there is no nepotism question where the appointment is based on the person's qualifications and not on the relationship to the court or its employees.

Background and rules framework

The opinion applies Ohio's former Code of Judicial Conduct, Canon 3B(4) (merit-based appointments, eliminating nepotism and favoritism) and Canon 1 (integrity and independence of the judiciary). Ohio later replaced this framework with the current Ohio Code of Judicial Conduct.

Citations and references

Rules of Judicial Conduct:

• Former Code of Judicial Conduct, Canon 3B(4) (Ohio), power of appointment
• Former Code of Judicial Conduct, Canon 1 (Ohio), integrity and independence of the judiciary

Other authorities cited:

• Thode, Reporter's Notes to the Code of Judicial Conduct, 60 (1973): concern with appointment and compensation powers and judicial patronage

See also

• Ohio BPC Opinion 1988-036: Full-Time Referee Preparing Wills for Relatives
• Ohio BPC Opinion 1988-034: Campaign Activity by a Retired Judge Not Eligible for Recall

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/03/Op-89-001.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 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 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.