Can a judge serve as an appointed member of a government board like the Children's Trust Fund Board or a Family and Children First Council?

Currency note

This opinion was issued in 2002 under the former Ohio Code of Judicial Conduct, which the Board flagged as superseded by the Ohio Code of Judicial Conduct effective March 1, 2009. The Canon 4 governmental-service provision discussed here has been renumbered and revised in the current Code. Treat this page as historical context, not current guidance. Verify against the current Ohio Code of Judicial Conduct before relying on any specific rule mentioned here.

Plain-English summary

The Board addressed whether a judge may serve as an appointed member of two governmental bodies. Under Canon 4(C)(2) of the former Ohio Code of Judicial Conduct, the Board concluded that a judge should not serve as an appointed member of the Ohio Children's Trust Fund Board. It reasoned that the Children's Trust Fund Board is a government entity directly concerned with issues of fact or policy on matters other than the improvement of the law, the legal system, or the administration of justice.

The Board reached the same conclusion for a County Family and Children First Council. It reasoned that the council is likewise a government entity directly concerned with issues of fact or policy on matters other than the improvement of the law, the legal system, or the administration of justice, which Canon 4(C)(2) places outside the permitted scope of a judge's governmental service.

The Board added a method point: in determining whether it is proper to serve on a government committee, commission, or position, a judge must not base the decision on whether a statute specifies a judge's participation. Instead, the judge must consider his or her restrictions under the Ohio Code of Judicial Conduct.

Common questions

Q: Could an Ohio judge serve on the Ohio Children's Trust Fund Board?

A: No. The opinion concluded that under Canon 4(C)(2) a judge should not serve as an appointed member, because the board is a government entity concerned with matters other than the improvement of the law or the administration of justice.

Q: Could a judge serve on a County Family and Children First Council?

A: No. The opinion reached the same conclusion under Canon 4(C)(2), for the same reason.

Q: Does it matter that a statute calls for a judge to serve on the body?

A: No. The opinion stated that a judge must not base the decision on whether a statute specifies judicial participation, and must instead apply the restrictions in the Code of Judicial Conduct.

Background and rules framework

The opinion interprets Canon 4(C)(2) of the former Ohio Code of Judicial Conduct, which limited a judge's appointment to governmental committees or commissions to those concerned with the improvement of the law, the legal system, or the administration of justice, read together with Canon 2 (avoiding impropriety and its appearance). This governmental-service restriction corresponds, in renumbered form, to the extrajudicial-activities provisions of the current Ohio Code of Judicial Conduct.

Citations and references

Rules of Judicial Conduct:

• Former Ohio Code of Judicial Conduct Canon 4(C)(2), Canon 2(A), Canon 2(B)

See also

• Ohio BPC Op. 1987-013: Judge on a Governmental Task Force Under Canon 5G
• Ohio BPC Op. 1989-003: Judge on a College Board of Trustees
• Ohio BPC Op. 1999-001: Judge/Magistrate as Trustee of a County Community College

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-02-009.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 2320, COLUMBUS, OH 43215-6104
(614) 644-5800 (888) 664-8345 FAX: (614) 644-5804
www.sconet.state.oh.us
OFFICE OF SECRETARY
OPINION 2002-9
Issued August 9, 2002

[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.]

SYLLABUS: Under Canon 4(C)(2) of the Ohio Code of Judicial Conduct, a judge
should not serve as an appointed member of the Ohio Children’s Trust Fund Board. The
Ohio Children’s Trust Fund Board is a government entity that is directly concerned with
issues of fact or policy on matters other than the improvement of the law, the legal
system, or the administration of justice.

Under Canon 4(C)(2) of the Ohio Code of Judicial Conduct, a judge should not serve as
an appointed member of a County Family and Children First Council. A County Family
and Children First Council is a government entity that is directly concerned with issues of
facts or policy on matters other than the improvement of the law, the legal system, or the
administration of justice.

In determining whether it is proper to serve on a government committee, commission, or
position, a judge must not base his or her decision on whether there is a statute specifying
a judge’s participation. A judge must consider his or her restrictions under the Ohio
Code of Judicial Conduct.

Since, under Canon 4(C)(2) of the Ohio Code of Judicial Conduct, a judge should not
serve on either the Ohio Children’s Trust Fund or the County Family and Children First
Council, this opinion does not address whether simultaneous service on both would
violate Ohio Ethics Law.

Before accepting any governmental appointment, a judge must consider whether the
position constitutes an office of profit or trust under the authority of this state, or of the
United States. This Board has no advisory authority as to what constitutes an office of
profit or trust under the authority of this state or of the United States; that authority lies
with the Office of the Attorney General of Ohio.

OPINION: This opinion addresses appointments of judges to serve on governmental
committees, commissions, or other governmental positions.

   Is it proper for a judge in a juvenile division of a common pleas court to
   serve on both the Ohio Children’s Trust Fund Board, and the County
   Family and Children’s First Council when appointed to these
   governmental entities?

Op. 2002-9 2

Because the question raises both ethical and legal issues, the opinion has three parts: 1)
The Ohio Code of Judicial Conduct; 2) The Ohio Ethics Law 3) The Ohio Constitution
and Statutes. Throughout this opinion the Board refers to the Ohio Children’s Trust Fund
Board as the “Children’s Board.” The Board refers to the County Family and Children’s
First Council as the “County Council.”

Part One: The Ohio Code of Judicial Conduct

Extra-judicial governmental appointments are restricted by Canon 4(C)(2) of the Ohio
Code of Judicial Conduct. A judge shall not accept appointments to serve on
governmental committees, commissions, or positions unless the committee, commission,
or position is concerned with issues of fact or policy on the law, the legal system, or the
administration of justice.

   Canon 4(C)(2) A judge shall not accept appointment to a governmental
   committee or commission or other governmental 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 may represent a country, state, or locality on ceremonial
   occasions or in connection with historical, educational or cultural
   activities.

Under Canon 4(C)(2), the general rule is that judges may not accept appointments to
government committees, commissions, or positions. The exception to the rule is that a
judge may accept appointments to government committees, commissions, or positions
concerned with issues of fact or policy on the improvement of the law, the legal system,
or the administration of justice.

The Canon 4(C)(2) restriction on governmental appointments furthers judicial economy
by preventing over involvement in matters that take time away from judicial service and
buffers judges from involvement in political matters that may cast doubt upon the
impartiality and independence of the judiciary.

   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.

E. Wayne Thode, Reporter’s Notes to Code of Judicial Conduct 26 (1973).
Op. 2002-9 3

Canon 2 adds additional restraints. Canon 2(B) states, in part, that “[a] judge may serve
as an officer, director, trustee, or non-legal advisor of an organization or governmental
agency devoted to the improvement of the law, the legal system, or the administration of
justice.” Canon 2(B)(1) bars a judge from serving if it is likely that the organization will
be engaged in either “(a) proceedings that ordinarily would come before the judge” or
“(b) adversary proceedings with frequency in the court of which the judge is a member or
in any court subject to the appellate jurisdiction of the court of which the judge is a
member.” Canon 2(A) adds additional restrictions: “A judge may engage in activities to
improve the law, the legal system, and the administration of justice, provided those
activities do not cast doubt on the judge’s capacity to act impartially as a judge, demean
the judicial office, or interfere with the proper performance of judicial duties.”

Reading Canon 4(C)(2) together with Canon 2(A) and (B), a three-part test emerges for
determining whether it is proper under the Ohio Code of Judicial Conduct for a judge to
accept an appointment to serve on a governmental committee, commission, or in a
governmental position.

   1. Would a judge’s participation cast doubt on the judge’s ability to act
      impartially, demean the judicial office, or interfere with performance
      of judicial duties?

   2. Is it likely that the governmental entity will be engaged in proceedings
      that ordinarily would come before the judge or be engaged in
      adversary proceedings with frequency in the court of which the judge
      is a member or in any court subject to the appellate jurisdiction of the
      court of which the judge is a member?

   3. Is the governmental entity 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’s participation on either the Children’s Board or the County Council would not
cast doubt on the judge’s ability to act impartially, demean the judicial office, or interfere
with performance of judicial duties. Thus, one part of the test is satisfied. It is unlikely
that the Children’s Board or the County Council governmental entity would be engaged
in proceedings that ordinarily would come before the judge or be engaged in adversary
proceedings with frequency in the court of which the judge is a member or in any court
subject to the appellate jurisdiction of the court of which the judge is a member. Thus, a
second part of the test is satisfied.

A third part of the test—whether the Children’s Board and the County Council are
government entities that are concerned with the law the legal system, or the
administration of justice—is the more difficult determination. Whether a governmental
committee, commission, or position is concerned with issues of fact or policy on the
improvement of the law, the legal system, or the administration of justice is a daunting
question. A recent essay, examining advisory opinions across the country “concludes
Op. 2002-9 4

that judicial involvement on issue-related governmental commissions is neither
absolutely prohibited nor unconditionally permitted but depends on a wide variety of
factors including the composition, agenda, and responsibilities of the particular
commission.” Cynthia Gray, American Judicature Society, State Justice Institute, Ethics
and Judges’ Evolving Roles Off the Bench: Serving on Governmental Commissions 1
(2002).

Ethics opinions from other states, while not addressing the Children’s Board or County
Council, are helpful in elucidating general factors to consider when determining whether
governmental committees, commissions, or positions are concerned with the law, the
legal system, or the administration of justice. A Utah advisory committee advises that
“the work of a governmental commission or committee must have a direct and primary
connection to the legal system in order for service to be appropriate. . . . It is not enough
that the committee be concerned with justice in the broader sense.” Utah Informal Op.
98-11 (1998). An Indiana advisory commission states that “[a] governmental committee
concerned with the improvement of the law, the legal system, or the administration of
justice, in which participation need not be approved by the court, is one whose concern
with the legal system is direct and exclusive.” Indiana Commission on Judicial
Qualifications, Op. 2-01. [Indiana’s rule 4(C)(2) allows a judge to obtain consent from
the Indiana Supreme Court to participate on a government committee, commission, or
position that is not concerned with the improvement of the law, the legal system, or the
administration of justice. Ohio’s rules have no such provision.]

Involvement with the law in some vague way is not sufficient to warrant a judge’s
participation. If it were, the exception to Canon 4(C)(2) would become the rule itself.
Canon 4(C)(2) requires a direct concern with the improvement of the law, the legal
system, and the administration of justice, not just a tangential relationship in which there
is involvement with the law in some way. To determine whether the Children’s Board
and the County Council are governmental entities directly concerned with issues of fact
or policy on matters regarding the improvement of the law, the legal system, or the
administration of justice, the Board must review the nature and purpose of these entities.

The Ohio Children’s Trust Fund Board (Children’s Board)

The Ohio Children’s Trust Fund Board [Children’s Board] is created within the
department of job and family services pursuant to Section 3109.15 of the Ohio Revised
Code. The Children’s Board consists of fifteen members, eight of whom are to be public
members appointed by the governor. The directors of alcohol and drug addiction
services, health, job and family services are members of the Board. The statute requires
that public members “shall be persons with demonstrated knowledge in programs for
children, shall be representative of the demographic composition of this state, and, to the
extent practicable shall be representative of the following categories: the educational
community; the legal community; the social work community; the medical community;
the voluntary sector; and professional providers of child abuse and child neglect
services.” Ohio Rev. Code Ann. § 3109.15 (West 2000) [emphasis added]. The statute
states that judges are not subject to a statutory requirement of attendance at three-fifths of
Op. 2002-9 5

the meetings during a two-year period. This indicates that the legislature contemplated
judges serving as public members from the legal community.

The powers and duties of the Children’s Board set forth in Sections 3109.16 and 3109.17
of the Ohio Revised Code. One duty is to apply for and accept federal and other funds
for the purpose of funding child abuse and child neglect prevention programs. Ohio Rev.
Code Ann. § 3109.16 (West 2000). Another duty is to establish a biennial state plan for
comprehensive child abuse and child neglect prevention. Ohio Rev. Code Ann. §
3109.17(A) (West 2000). Specific duties in carrying out the state plan include:

      ensuring that opportunity exists for assistance through child abuse and
       neglect prevention programs to persons throughout the state of various
       backgrounds;

      notifying each child abuse and child neglect prevention advisory board
       of the amount estimated to be block granted to that board;

      developing criteria for county or district comprehensive allocation
       plans and for determining the plans’ effectiveness;

        reviewing county or district comprehensive allocation plans;

      making a block grant to each child abuse and child neglect prevention
       advisory board for funding child abuse and child neglect prevention
       programs;

      providing for the monitoring of expenditures from the trust fund and of
       programs that receive the money;

      establishing reporting requirements for advisory boards;

      collaborating with and facilitating information exchange with persons
       and entities for the purpose of child abuse and child neglect
       prevention;

      providing for education of the public and professionals for the purpose
       of child abuse and child neglect prevention;

      preparing a fiscal report regarding the expenditure of money from the
       fund, performing duties with regard to a wellness block grant program.

Ohio Rev. Code Ann. § 3109.17 (B), (C), (D) (West 2000).
Op. 2002-9 6

County Family and Children First Council (County Council)

A County Family and Children First Council [County Council] is established in each
county by the board of county commissioners pursuant to Section 121.37(B)(1) of the
Ohio Revised Code for the purpose of assisting families and children. Ohio Rev. Code
Ann. § 121.37(B)(1) (West 2002). [In the county from which this request originates a
group called the Children’s Cabinet assumes the functions of the County Family and
Children First Council. For clarity, this opinion focuses upon the judge’s membership on
a County Council, rather than the Children’s Cabinet group. In doing so, the opinion has
greater applicability to judges in other Ohio counties.]

The membership of each County Council is set forth by statute to include “[t]he county’s
juvenile judge senior in service or another judge of the juvenile court designated by the
administrative judge or, where there is no administrative judge by the judge senior in
service.” Ohio Rev. Code Ann. § 121.37(B)(1)(g) (West 2002). A County Council must
also include as members: three individuals whose families are or have received services;
the director of the board of alcohol, drug addition, and mental health services or a
designee; the heath commissioner or a designee; the director of the county department of
job and family services; the executive director of the county agency responsible for the
administration of children services pursuant to section 5153.15 of the Revised Code; the
superintendent of the county board of mental retardation and developmental disabilities;
the superintendents of school districts; a representative of a municipal corporation;
president of the board of county commissioners or designee; a representative of the
regional office of the department of youth services; a representative of the county’s head
start agencies; a representative of the county’s early intervention collaborative established
pursuant to the federal early intervention program; a representative of a local nonprofit
entity that funds advocates, or provides service to children and families. Ohio Rev. Code
Ann. § 121.37(B)(1)(a) through (o) (West 2002). In addition, the county commissioners
“may invite any local public or private agency or group that funds, advocates, or provides
services to children and families to have a representative become a permanent or
temporary member of its county council.” Ohio Rev. Code Ann. § 121.37(B)(1)(West
2002).

The statutory duties of the County Council include the following:

 making referrals to the Ohio Family and Children’s First Cabinet Council
(an entity created by R.C.121.37(A)(1) whose duties include entering into
contracts with and administering grants to county family and children first
councils of children for whom the county council cannot provide adequate
services);

 developing a process to evaluate and prioritize services, filling service
gaps when possible, and inventing new approaches to achieve better
results for families and children;
Op. 2002-9 7

 participating in developing a countywide system for infants and toddlers
with developmental disabilities or delays and their families, as established
pursuant to federal grants received and administered by the department of
health for early intervention services;

 maintaining an accountability system to monitor progress of a county
council in achieving results for families and children and establishing a
mechanism to receive input from the families receiving services.

Ohio Rev. Code Ann. § 121.37(B)(2) (West 2002).

In addition, a County Council may be designated by the county commissioners to serve
as a child abuse and child neglect prevention advisory board. Ohio Rev. Code Ann. §
3109.18(A)(1) (West 2000). The duties of each child abuse and child neglect prevention
advisory board is to develop a comprehensive allocation plan for the purpose of
preventing child abuse and child neglect and submit the plan to the children’s trust fund
board; notify potential applicants about the availability of funds from the trust fund
review applications; make grants to child abuse and child neglect prevention programs;
establish reporting requirements for grant recipients; assist the Children’s Trust Fund
Board in monitoring programs that receive money; make an annual report to the
children’s trust fund board. Ohio Rev. Code Ann. § 3109.18(F), (G), (J) (West 2000).

Also, the County Council has statutory responsibilities under divisions (C), (D), (E), and
(F) of Section 121.37 of the Ohio Revised Code, to develop a “county service
coordination mechanism” and a “comprehensive joint service plan” for children and their
families, including children who are abused, neglected, dependent, unruly, or delinquent
children and under the jurisdiction of the juvenile court and children whose parents or
custodians are voluntarily seeking services. Ohio Rev. Code § 121.37 (C), (D), (E), (F)
(West 2002). The county service coordination mechanism must include a procedure for
assessing the needs of any child, including children who are abused, neglected,
dependent, unruly, or delinquent children and under the jurisdiction of the juvenile court
and children whose parents or custodians are voluntarily seeking services; and a
procedure for assessing the service needs of the child’s family. The county service
coordination mechanism must include a procedure for developing a comprehensive joint
service plan. The comprehensive joint service plan must do two things: 1) designate
service responsibilities among various state and local agencies that provide services to
children and their families, including children who are abused, neglected, dependent,
unruly, or delinquent children and under the jurisdiction of the juvenile court and children
whose parents or custodians are voluntarily seeking services and 2) include a service
coordination process for dealing with a child who is alleged to be an unruly child which
includes methods to divert a child from the juvenile court system. Ohio Rev. Code Ann.
§ 121.37(C), (D), (F) (West 2002). There is a statutory requirement that a juvenile judge
participate in developing the county service coordination mechanism for children and
families of any child who is an abused, neglected, dependent, unruly, or delinquent child
and under the jurisdiction of the juvenile court or a child whose parent or custodian is
voluntarily seeking services. Ohio Rev. Code Ann. § 121.37(C) (West 2002).
Op. 2002-9 8

In this Board’s view, the Children’ Board is not a governmental entity that has a direct
concern with the improvement of the law, the legal system, or the administration of
justice. Direct concerns of the Children’s Board are to obtain funds for child abuse and
child neglect programs, establish a state plan for comprehensive child abuse and child
neglect prevention, and make block grants to child abuse and child neglect advisory
boards.

Thus, the Board advises that under Canon 4(C)(2) of the Ohio Code of Judicial Conduct a
judge should not serve as an appointed member of the Ohio Children’s Trust Fund Board.
The Ohio Children’s Trust Fund Board is a government entity that is directly concerned
with issues of fact or policy on matters other than the improvement of the law, the legal
system, or the administration of justice.

In this Board’s view, the County Council is a governmental entity that has a direct
concern with fact or policy on matters other than the improvement of the law, the legal
system, or the administration of justice. One concern of the County Council is to assist
abused, neglected, dependent, unruly, or delinquent children who are under the
jurisdiction of the juvenile court and develop methods of diversion from the juvenile
court of children alleged to be unruly. However, the County Council has broader societal
concerns such as participating in a countywide system for infants and toddlers with
developmental disabilities or delays; evaluating and prioritizing services for families and
children; filling service gaps; serving as the child abuse and child neglect prevention
advisory board. While these are worthy concerns, they are not direct concerns with fact
or policy on matters related to the law, the legal system, or the administration of justice.

Thus, the Board advises that under Canon 4(C)(2) of the Ohio Code of Judicial Conduct,
a judge should not serve as an appointed member of a County Family and Children First
Council. A County Family and Children First Council is a government entity that is
directly concerned with issues of fact or policy on matters other than the improvement of
the law, the legal system, or the administration of justice.

In determining whether it is proper to serve on any government committee, commission,
or position, a judge must not base his or her decision on whether there is a statute
specifying a judge’s participation. A judge must consider his or her restrictions under the
Ohio Code of Judicial Conduct.

Part Two: The Ohio Ethics Law

Simultaneous service on both the Children’s Board and County Council raises concerns
under Ohio Ethics Law (Chapter 102 and Sections 2921.42 and 2921.43 of the Ohio
Revised Code). The issues are as follows. Would a judge who simultaneously serves on
both the Children’s Board and County Council have a prohibited interest under R.C.
2921.42(A)(1) and (4) in the public contract (the grants) between the Children’s Board
and the County Council and would the judge have a prohibited conflict of interest under
Sections 102.03 (D) and (E)?
Op. 2002-9 9

Since, under Canon 4(C)(2) of the Ohio Code of Judicial Conduct, a judge should not
serve on the Ohio Children’s Trust Fund or the County Family and Children First
Council, this opinion does not address whether simultaneous service on both would
violate Ohio Ethics Law.

Part Three: The Ohio Constitution and Ohio Laws

The Ohio Constitution states: “Judges shall receive no fees or perquisites, nor hold any
other office of profit or trust, under the authority of this state, or of the United States.”
Oh. Const. Article IV § 6(B). Ohio statutes echo the prohibition on holding any other
office of profit or trust. Ohio Rev Code Ann. § 141.04(D) (West 2002) [supreme court
justices, court of appeals judges, court of common pleas judges, probate court judges];
Ohio Rev Code Ann. § 1901.11(D) (West Supp. 2002) [municipal court judges]; Ohio
Rev Code Ann. § 1907.16(B) (West Supp. 2002) [county court judges].

Before accepting a governmental appointment, a judge must consider whether the
position constitutes an office of profit or trust under the authority of this state, or of the
United States. This Board has no advisory authority as to what constitutes an office of
profit or trust under the authority of this state or of the United States; that authority lies
with the Office of the Attorney General of Ohio.

Advisory Opinions of the Board of Commissioners on Grievances and Discipline are
informal, nonbinding opinions in response to prospective or hypothetical questions
regarding the application of the Supreme Court Rules for the Government of the
Bar of Ohio, the Supreme Court Rules for the Government of the Judiciary, the
Code of Professional Responsibility, the Code of Judicial Conduct, and the
Attorney’s Oath of Office. Pursuant to Section 102.08 of the Ohio Revised Code, the
requester may reasonably rely on the opinion as it applies to Ohio Ethics Law and
related statutes.