Can a common pleas judge serve on the judicial corrections board of a community-based correctional facility?

Currency note

The Board withdrew this opinion on April 10, 2015; it is retained here for research only and is not current guidance. The opinion was issued in 2003 under the former Ohio Code of Judicial Conduct, which the Board flagged as superseded by the Ohio Code of Judicial Conduct effective March 1, 2009.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. Verify against the current Ohio Code of Judicial Conduct and any superseding guidance before relying on any specific rule mentioned here.

Plain-English summary

The Board addressed whether common pleas court judges may serve on the judicial corrections boards that oversee community-based correctional facilities and programs. Applying Canon 4(C)(2) together with Canon 2(A) and Canon 2(B) of the former Ohio Code of Judicial Conduct, the Board concluded that judges should not serve on those boards.

The analysis followed the Board's framework for judicial service on governmental bodies: Canon 4(C)(2) bars appointment to a governmental committee, commission, or 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, and Canon 2 requires a judge to avoid impropriety and the appearance of impropriety. A judicial corrections board for a community-based correctional facility fell on the prohibited side of that line.

Common questions

Q: Can a common pleas judge sit on a community-based correctional facility's corrections board?

A: No, under this opinion. It concluded that judges should not serve on those boards under Canon 4(C)(2), Canon 2(B), and Canon 2(A). The Board withdrew the opinion in 2015.

Q: What rule drove the result?

A: Per the opinion, Canon 4(C)(2) limits a judge's governmental appointments to bodies concerned with the improvement of the law, the legal system, or the administration of justice, and a corrections board did not qualify.

Background and rules framework

The opinion interprets Canon 4(C)(2) (limits on a judge's governmental appointments) with Canon 2(A) and Canon 2(B) (avoiding impropriety and its appearance; service to law-related organizations) of the former Ohio Code of Judicial Conduct. These extrajudicial-activity provisions are addressed, renumbered and revised, in the current Code. The Board withdrew the opinion in 2015.

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. 2003-004: Whether Community-Based Correctional Facility Staff Are Judicial Employees Under Ohio Ethics Law
• Ohio BPC Op. 2002-009: A Judge Serving on the Children's Trust Fund Board or a Family and Children First Council
• Ohio BPC Op. 1987-013: Judge on a Governmental Task Force Under Canon 5G

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-03-009.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 2003-9
Issued December 5, 2003

                   [Withdrawn by the Board on April 10, 2015]

[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), Canon 2(B) and Canon 2(A) of the Ohio Code of
Judicial Conduct, common pleas court judges should not serve on judicial corrections
boards for community-based correctional facilities and programs

OPINION: This opinion addresses a question regarding common pleas court judges
serving on judicial corrections boards.

   Is it proper under the Ohio Code of Judicial Conduct for common pleas
   court judges to serve on judicial corrections boards for community-based
   correctional facilities and programs?

Statutory duties regarding community-based correctional facilities and programs have
fallen upon the shoulders of Ohio common pleas court judges. Pursuant to Ohio law,
common pleas court judges are to serve as Judicial Corrections Boards to administer
county or district community-based correctional facilities and programs. Ohio Rev. Code
Ann. §2301.51(A)(1) and (2) (West Supp 2003).

The required involvement of judges is extensive, ranging from proposing to establishing
and operating a community-based correctional facility and program. The initial role of
the common pleas court judges is to formulate a proposal for a community-based
correctional facility and program. Ohio Rev. Code Ann. §2301.51(A)(1) and (2) (West
Supp. 2003). Next, the judges are to submit a proposal to the division of parole and
community services of the department of rehabilitation and correction for its approval.
Ohio Rev. Code Ann. §2301.51(B)(1) and (2) (West Supp. 2003). Then upon approval of
the proposal, the judges are to serve as the Judicial Corrections Board to establish and
operate the facility and program. Ohio Rev. Code Ann. §2301.51(C) (West Supp. 2003).

In determining whether it is proper to serve on a governmental 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. In addition, a judge must consider the constitutional and
statutory prohibitions on holding any other office of profit or trust. The Ohio
Constitution states: “Judges shall receive no fees or perquisites, nor hold any other office

Op. 2003-9 2

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

Op. 2003-9 3

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. 2003) [municipal court judges]; Ohio Rev. Code Ann. §
1907.16(B) (West Supp. 2003) [county court judges]. 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. Ohio Rev. Code Ann. § 109.12 (West 2002). This Board’s renders advice
regarding the application of the Ohio Code of Judicial Conduct. See Gov.Bar R. V §
2(C).

Pertinent rules within the Ohio Code of Judicial Conduct are as follows:

   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.

   Canon 2(B) 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
   or of an educational, religious, charitable, fraternal, or civic organization
   not conducted for profit, subject to the following limitations and the other
   requirements of this Code.

           (1) A judge shall not serve as an officer, director, trustee, or non-
               legal advisor if it is likely that the organization will be
               engaged in either of the following:

                   (a) Proceedings that ordinarily would come before the
                       judge;

                   (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.

           (2) [Omitted].

   Canon 2(A) 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.

Op. 2003-9 4

Based on the requirements of Canons 4(C)(2), Canon 2(B) and Canon 2(A), the Board
has described a three-part test 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. See Ohio SupCt., Bd Comm’rs
on Grievances and Discipline, Op. 2002-9 (2002). The three-part test is as follows:

   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 “Yes” answer to any of the three questions indicates the appointment to serve on a
governmental committee, commission, or in a governmental position is improper under
the ethical rules.

Before addressing each question, the Board reviews the duties of a judicial corrections
board and the minimum standards for proposing, establishing, and operating a
community-based correctional facility and program that must be satisfied.

The duties of the judicial corrections board are set forth in section 2301.55 of the Ohio
Revised Code.

   (A)   If a judicial corrections board establishes one or more community-
         based correctional facilities and programs or district community-
         based correctional facilities and programs, all of the following
         apply, for each facility and program so established:

          (1) The judicial corrections board shall appoint and fix the
              compensation of the director of the facility and program and
              other professional, technical, and clerical employees who are
              necessary to properly maintain and operate the facility and
              program.

              The director, under the supervision of the judicial corrections
              board and subject to the rules of the judicial corrections board
              that are prescribed under division (B) of this section, shall
              control, manage, operate, and have general charge of the

Op. 2003-9 5

              facility and program, and shall have the custody of its
              property, files, and records.

          (2) The judicial corrections board may enter into contracts with
              the board of county commissioners of the county in which the
              facility and program is located or, in the case of a district
              facility and program, with the county commissioners of any
              county included in the district, whereby the county is to
              provide buildings, goods, and services to the facility and
              program.

          (3) The judicial corrections board shall adopt rules for the
              sentencing or other commitment or admission pursuant to law
              of persons to, and the operation of, the facility and program.
              The rules shall provide procedures that conform to sections
              2301.51 to 2301.56, 5120.10, 5120.111, and 5120.112 of the
              Revised Code. The rules adopted under this division shall be
              entered upon the journal of the court of each member court of
              a district.

   (B)   A judicial corrections board that establishes one or more
         community-based correctional facilities and programs or district
         community-based correctional facilities and programs may accept
         any gift, donation, devise, or bequest of real or personal property
         made to it by any person, or any grant or appropriation made to it by
         any federal, state, or local governmental unit or agency, and use the
         gift, donation, devise, bequest, grant, or appropriation in any
         manner that is consistent with any conditions of the gift, donation,
         devise, bequest, grant, or appropriation, and that it considers to be in
         the interests of the facility and program. The judicial corrections
         board may sell, lease, convey, or otherwise transfer any real or
         personal property that it accepts pursuant to this division following
         the procedures specified in sections 307.09, 307.10, and 307.12 of
         the Revised Code.

   (C)   A judicial corrections board that establishes one or more
         community-based correctional facilities and programs or district
         community-based correctional facilities and programs shall provide
         the citizens advisory board of the facilities and programs with the
         staff assistance that the citizens advisory board requires to perform
         the duties imposed by section 2301.54 of the Revised Code

Ohio Rev. Code Ann. §2301.55 (West Supp. 2003).

Pursuant to R.C. 2301.52, the proposal submitted by the common pleas court judges must
satisfy minimum standards.

Op. 2003-9 6

  Each proposal for a community-based correctional facility and program or
  a district community-based correctional facility and program shall provide
  for or contain at least the following:

         (A) The designation of a physical facility that will be used for the
             confinement of persons sentenced to the facility and program
             by a court pursuant to section 2929.16 or 2929.17 of the
             Revised Code or persons otherwise committed or admitted
             pursuant to law to the facility and program. The designate
             facility shall satisfy all of the following:

                (1) Be a secure facility that contains lockups and other
                    measures sufficient to ensure the safety of the
                    surrounding community;

                (2) Provide living space and accommodations that are
                    suitable and adequate for the housing upon release,
                    sentencing, or other commitment or admission of the
                    following number of persons:

                          (a) For a facility that became operational prior to
                              July 1, 1993, at least twenty, but not more
                              than two hundred, persons;

                          (b) For a facility that becomes operational on or
                              after July 1, 1993, at least fifty, but not more
                              than two hundred, persons.

                (3) Be constructed or modified, and maintained and
                    operated, so that it complies with the rules adopted
                    pursuant to Chapter 119. of the Revised Code by the
                    division of parole and community services in the
                    department of rehabilitation and correction for
                    community-based correctional facilities and programs
                    and district community-based correctional facilities
                    and programs.

         (B) The designation of a general treatment program that will be
             applied individually to each person sentenced to the facility
             and program by a court pursuant to section 2929.16 or
             2929.17 of the Revised Code or otherwise committed or
             admitted pursuant to law to the facility and program. The
             designated general treatment program shall not be limited to,
             but at a minimum shall include, provisions to ensure that:

Op. 2003-9 7

                (1) Each person sentenced by a court or otherwise
                    committed or admitted to a facility is provided an
                    orientation period of at least thirty days, during which
                    period the person is not permitted to leave the facility
                    and is evaluated in relation to the person’s placement
                    in rehabilitative programs;

                (2) Each person sentenced by a court or otherwise
                    committed or admitted to a facility is placed in a
                    release program whereby the person will be released
                    temporarily for the purpose of employment in a
                    manner consistent with the applicable work-release
                    program established under section 5147.28 of the
                    Revised Code, for vocational training, or for other
                    educational or rehabilitative programs;

                (3) All suitable community resources that are available are
                    utilized in the treatment of each person sentenced by a
                    court or otherwise committed or admitted to the
                    facility.

         (C) Provisions to ensure that the facility and program will be
             staffed and operated by persons who satisfy the minimum
             educational and experience requirements that are prescribed
             by rule by the department of rehabilitation and correction;

         (D) Provisions for an intake officer to screen each felony offender
             who is sentenced by the court or courts that the facility and
             program serve and to make recommendations to the
             sentencing court concerning the admission or referral of each
             felony offender to the facility and program within fourteen
             days after notification of sentencing;

         (E) Written screening standards that are to be used by an intake
             officer in screening an offender under the provisions
             described in division (D) of this section and that at a
             minimum include provisions to ensure that the intake officer
             will not make a recommendation to a sentencing court in
             support of the sentencing of a person to the facility and
             program if the person is ineligible for placement in the facility
             and program under rules adopted by the facility’s and
             program’s judicial corrections board;

         (F) A statement that a good faith effort will be made to ensure
             that the persons who staff and operate the facility and
             program proportionately represent the racial, ethnic, and

Op. 2003-9 8

                cultural diversity of the persons released, sentenced, or
                otherwise committed or admitted to the facility and program.

Ohio Rev. Code Ann. §2301.52 (West Supp. 2003).

First prong of test: 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?

Based upon the duties of a judicial correction board and the minimum standards that a
community-based correctional facility and program must satisfy, it is the Board’s view
that a judge’s participation on a Judicial Corrections Board casts doubt on impartiality,
demeans the judicial office, and interferes with performance of judicial duties.

The far ranging duties imposed upon common pleas judges are a drain upon judicial
economy. Judges cannot fulfill the duties from the bench. Fulfillment of the statutory
duties interferes with the performance of judicial duties. The judges must make
employment decisions as to the director and employees of the facility and their
compensation. The judges must contract with the county commissioners for buildings,
goods, and services. The judges must adopt rules for sentencing, commitment, or
admission pursuant to law. The judges must adopt rules for operating the facility and
program. The judges must accept gifts, donations, devises, or bequests of real or person
property and use them in a manner consistent with any conditions imposed and in the
interest of the facility, and in so doing may be involved in the sale of real or personal
property. The judges must accept grants or appropriations by federal, state, or local
government units or agencies and use them in the interest of the facility. The judges must
provide staff assistance to the citizens advisory board. The judges must operate a physical
facility that confines persons. The physical facility must be a secure facility that contains
lockups and other measures to ensure safety of the community. The physical facility
must be constructed, maintained, and operated in compliance with the rules of the
division of parole and community services in the department of rehabilitation and
correction. The judges must designate a treatment program to be applied to each person
sentenced or otherwise committed or admitted. The judges must ensure that the persons
who staff and operate the facility and program meet minimum education and experience
requirements as prescribed by rule by the department of rehabilitation and correction.
The judges must provide for an intake officer to screen each felony offender sentenced by
the court and the judges must provide written screening standards. The judges must
make a good faith effort to ensure racial, ethnic, and cultural diversity in the persons who
staff and operate the facility and program. See Ohio Rev. Code Ann. §2301.52 (West
Supp. 2003) and §2301.55 (West Supp. 2003).

A judge’s participation on a judicial corrections board casts doubt upon the judge’s
impartiality and in so doing demeans the judicial office. The appearance of impartiality
is questioned when a judge has responsibility to seek funding for a community-based
correctional facility and program from a party that appears before the judge. A judicial
corrections board applies to the division of parole and community services of the
Department of Rehabilitation and Corrections for state financial assistance in renovating,

Op. 2003-9 9

maintaining, and operating the facilities and programs. Ohio Rev. Code Ann. §2301.56
(West 2003). At the same time an application for funding by a judicial corrections board
is pending or when issues involving funding arise, the Ohio Department of Rehabilitation
and Corrections may be defendants in litigation, such as inmate actions, employee
actions, or union actions, pending before a common pleas court.

The appearance of impartiality is questioned when a judge on a judicial corrections board
is required to enter the required financial assistance agreement with the director of
rehabilitation and correction and the deputy director of the division of parole and
community services. The financial assistance agreement specifies as a term and
condition that a facility and program will attempt to accept and treat at least fifteen per
cent of the eligible adult felony offenders sentenced in the county or counties it serves
during the period it receives state financial assistance. Ohio Rev. Code Ann. §5120.112
(C)(8) (West 2001).

The appearance of impartiality is questioned when a judge on a judicial corrections board
applies for funding from the division of parole and community service of the Ohio
Department of Rehabilitation because that funding is tied to the number of persons
committed or referred. The amount of state financial assistance is based upon a set fee to
be paid to an applicant per person committed or referred in the year of application. Ohio
Rev. Code Ann. § 5120.112(B) (West 2001). Because judges must make sentencing
decisions, a judge’s involvement in applying for funding tied to the number of persons
committed or referred casts doubt on impartiality.

The appearance of impartiality is questioned when a judge on a judicial corrections board
has responsibility for adopting policies regulating offenders in community-based
correctional facilities and programs and responsibility for presiding over matters that may
involve those offenders and the regulations.

The appearance of impartiality is questioned when a judge is involved in employment
matters involving the director and employees of a community-based correctional facility
and presides over matters in which the judicial corrections board, the director, and or the
employees are litigants or witnesses.

Second prong of test: 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?

It is likely that a judicial corrections board, or a community-based correctional facility, or
its director and employees may be engaged in adversary proceedings in a common pleas
court. Lawsuits might be filed against judicial corrections boards or community-based
correctional facilities and their directors by employees of community-based correctional
facilities and programs or by offenders who have been sentenced to a facility. Employees
may be involved as witnesses in proceedings involving offenders.

Op. 2003-9 10

Third prong of test: 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?

The duties of a judicial corrections board concern issues of fact or policy on matters other
than the improvement of the law, the legal system, or the administration of justice. A
judicial corrections board faces employment issues, business issues, financial issues,
contractual issues in operating a facility and program. A judicial corrections board
supervises the director of a community-based correctional facility and program who
controls, manages, operates and has general charge of the facility and program. Ohio
Rev. Code Ann. §2301.55 (West 2003). In short, judges serving on judicial corrections
boards are running correctional facilities and programs. Operating a correctional facility
and its programs requires judges to engage in business, financial, and employment
decisions involving issues of fact and policy that are beyond the law, the legal system,
and the administration of justice and that detract from judicial duties.

In closing, this Board advises that under the Canon 4(C)(2), Canon 2(B) and Canon 2(A)
of the Ohio Code of Judicial Conduct, common pleas court judges should not serve on
judicial corrections boards for community-based correctional facilities and programs.

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.