Can a part-time municipal court judge appoint their own son or daughter to serve as acting judge during a vacation?

Currency note

This opinion was issued in 2004 under the former Ohio Code of Judicial Conduct, which the Board flagged as superseded by the Ohio Code of Judicial Conduct effective March 1, 2009.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 nepotism and impropriety provisions discussed here have been renumbered and revised in the current Code, and the Ohio Ethics Law statutes it cites may have been amended. Treat this page as historical context, not current guidance. Verify against the current Ohio Code of Judicial Conduct and current statutes before relying on any specific rule mentioned here.

Plain-English summary

The Board addressed whether a part-time municipal court judge may appoint his or her son or daughter to serve as acting judge while the judge is on vacation. The Board concluded that the appointment is improper under both the Ohio Code of Judicial Conduct and Ohio Ethics Law.

Under the Code of Judicial Conduct, an appointment of a relative within the third degree of consanguinity to serve as acting judge may appear as an act of nepotism, even though the appointee is qualified to receive the appointment. Under Ohio Ethics Law, the appointment is improper because the appointee is a member of the judge's family who, if appointed as acting judge, would have a prohibited pecuniary interest in a public contract.

Common questions

Q: Can a part-time judge name their child as acting judge during a vacation?

A: No. The opinion concluded the appointment is improper under both the Code of Judicial Conduct and Ohio Ethics Law.

Q: Does it matter that the son or daughter is qualified to serve?

A: No. Per the opinion, even a qualified appointee creates the appearance of nepotism under the Code, and a family member would have a prohibited pecuniary interest in a public contract under Ohio Ethics Law.

Background and rules framework

The opinion applies the former Ohio Code of Judicial Conduct's provisions on impropriety and the appearance of impropriety (Canon 2) and on appointments and nepotism (Canon 3(C)(4)), together with Ohio Ethics Law (R.C. 2921.42, unlawful interest in a public contract). These provisions are addressed, renumbered and revised, in the current Code, and the statutes may have changed since 2004.

Citations and references

Rules of Judicial Conduct:

• Former Ohio Code of Judicial Conduct Canon 2; Canon 3(C)(4)

Statutes:

• Ohio Rev. Code 2921.42 (unlawful interest in a public contract)

See also

• Ohio BPC Op. 1988-005: Acting Judge Disqualification: Appointing Judge's Relative
• Ohio BPC Op. 1989-001: Court Nepotism: Judge's Spouse as Employee
• Ohio BPC Op. 1987-049: Acting Judge and the Code of Judicial Conduct

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-04-010.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
65 SOUTH FRONT STREET, 5TH FLOOR, COLUMBUS, OH 43215-3431
(614) 387-9370 (888) 664-8345 FAX: (614) 387-9379
www.sconet.state.oh.us
OFFICE OF SECRETARY
OPINION 2004-10
Issued October 8, 2004

[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: It is improper under both the Ohio Code of Judicial Conduct and
Ohio Ethics Law for a part-time municipal court judge to appoint his or her son
or daughter as acting judge to serve during the judge’s vacation. Under the Ohio
Code of Judicial Conduct, an appointment by a judge of a relative within the third
degree of consanguinity to serve as acting judge may appear as an act of
nepotism, even though the appointee is qualified to receive the appointment.
Under Ohio Ethics Law, such appointment is improper because the appointee is a
member of the judge’s family who if appointed as acting judge would have a
prohibited pecuniary interest in a public contract.

OPINION: This opinion addresses a judge’s appointment of a relative to serve
as acting judge of a municipal court.

   Is it proper for a part-time municipal court judge to appoint his son
   or daughter as acting judge to serve during the judge’s vacation?

By law, a judge of a municipal court that has only one judge may appoint a
substitute to serve when the judge is temporarily absent, incapacitated, or
otherwise unavailable. See Ohio Rev. Code Ann. § 1901.10(A)(2) (West Supp.
2004). The appointee, who must have the qualifications required by Ohio
Revised Code section 1901.06, is an “acting judge” and has the jurisdiction and
powers conferred upon the municipal court judge. Id.

By ethical standards, a judge must make appointments within the bounds of both
the Ohio Code of Judicial Conduct and Ohio Ethics Law. The Board of
Commissioners on Grievances and Discipline is the appropriate body to render
advice as to the application of these disciplinary rules and ethics laws. See
Gov.Bar R. V(2)(C) and Ohio Rev. Code Ann. §§ 102.01 (F)(2), 102.08 (West
2002).

Ohio Code of Judicial Conduct

Under Canon 3(C)(4), a judge must avoid nepotism. Judges must not make
unnecessary appointments. Judges are to make appointments impartially based
on merit.

Op. 2004-10 2

  Canon 3(C)(4) A judge shall not make unnecessary appointments.
  A judge shall exercise the power of appointment impartially and on
  the basis of merit. A judge shall avoid favoritism and nepotism. A
  judge shall not approve compensation of appointees beyond the fair
  value of services rendered.

Under Canon 4(A), “[a] judge shall not allow family, social, political, or other
relationships to influence the judge’s judicial conduct or judgment.”

Canon 3(C)(4) and Canon 4(A) effectuate the broad mandates of Canon 3 that
“[a] judge shall perform the duties of judicial office impartially and diligently”
and Canon 4 that “[a] judge shall avoid impropriety and the appearance of
impropriety in all of the judge’s activities.”

Nepotism is defined as “[b]estowal of official favors on one’s relatives, esp. in
hiring.” Black’s Law Dictionary 1066 (8th ed. 2004).

To eliminate Canon 3(C)(4) concerns regarding nepotism, the appointment of a
relative within the third degree of relationship of a judge or a judge’s spouse is
prohibited. See Ohio Sup.Ct., Bd. Commrs. Grievances & Discipline, Op. 93-4
(1993).

The degrees of relationship computed by the rules of civil law are as follows:
parents and children are within the first degree; grandparents, grandchildren,
brothers, and sisters are within the second degree; uncles, aunts, nephews, nieces
and great-grandparents are within the third degree; first cousins, great-uncles,
great-aunts, and great-great-grandparents are within the fourth degree; great-
great uncles, great-great-aunts, children of a cousin (first cousins once removed),
and the children of a great-uncle or a great-aunt are within the fifth degree;
second cousins are within the sixth degree. See 23 Am. Jur. 2d Descent &
Distribution § 55 (1983).

Thus, the Board advises that it is improper under the Ohio Code of Judicial
Conduct for a part-time municipal court judge to appoint his or her son or
daughter as acting judge to serve during the judge’s vacation. An appointment by
a judge of a relative within the third degree of consanguinity to serve as acting
judge may appear as an act of nepotism, even if the appointee is qualified to
receive the appointment.

Ohio Ethics Law

Judges are “public officials,” subject to Section 2921.42(A). See Ohio Rev. Code
Ann § 2921.01(A) (West Supp. 2004). The prohibition within R.C. 2921.42(A) is
pertinent to this inquiry.

Op. 2004-10 3

   R.C. 2921.42 (A) No public official shall knowingly do any of the
   following:

          (1) Authorize, or employ the authority or influence of his
              [her] office to secure authorization of any public contract
              in which he [she], a member of his [her] family, or any of
              his [her] business associates has an interest.

Ohio Revised Code Ann. § 2921.42(A) (West 1997).

Under Ohio Ethics Law, it is improper for a judge to use the authority or
influence of the judicial office to secure the authorization of a public contract for
a family member.

A “public contract” includes “employment of an individual by the state, any of its
political subdivisions, or any agency or instrumentality of either.” Ohio Rev.
Code Ann. § 2921.42(G)(1) (West 1997). A “public contract” includes an
appointment by a judge to acquire an individual’s services to carry out the court’s
duties. See Ohio Sup.Ct., Bd. Commrs. Grievances & Discipline, Op. 93-4 (1993).
See, also, Ohio Sup.Ct., Bd. Commrs. Grievances & Discipline, Op. 93-2 (1993)
(“[T]he appointment of an attorney to serve as fiduciary of an estate, as guardian
and or attorney for the mentally incompetent, or as court appointed counsel for
an indigent in juvenile court is a ‘public contract’ as the term is used in section
2921.42 since the court is acquiring services pursuant to its duties.”)

A “family member,” for purposes of Section 2921.42(A), “includes, but is not
limited to: 1) grandparents; 2) parents; 3) spouse; 4) children, whether
dependent or not; 5) grandchildren; 6) brothers and sisters; or 7) any person
related by blood or marriage and residing in the same household.” See Ohio
Sup.Ct., Commrs. Grievances & Discipline, Op. 93-4(1993), 93-2(1993), Ohio
Ethics Commission, Op. 80-001 (1980).

An “interest” is a definite, direct interest that may be either pecuniary or
fiduciary. Compensation for serving as an “acting judge” is a pecuniary interest.
See Ohio Sup.Ct., Bd. Commrs. Grievances & Discipline, Op. 93-4 (1993)
(Compensation to a court appointed attorney/member of the judge’s family for
representing an indigent party is an “interest.”)

Thus, the Board advises that it is improper under Ohio Ethics Law for a part-time
municipal court judge to appoint his or her son or daughter as acting judge to
serve during the judge’s vacation. The appointment is improper because the
appointee is a member of the judge’s family who if appointed as acting judge
would have a prohibited pecuniary interest in a public contract.

Related Opinions

Op. 2004-10 4

In Opinion 93-4, the Board advised that it is improper under both the Ohio Code
of Judicial Conduct and Ohio Ethics Law for a judge to appoint an attorney to
represent indigent parties indicted by the grand jury, when the attorney is related
to the judge or the judges’ spouse within the third degree of consanguinity. The
Board noted that occasional exceptions might apply under extraordinary
circumstances in sparsely populated jurisdictions with few attorneys. Ohio
Sup.Ct., Bd. Commrs. Grievances & Discipline, Op. 93-4.

For an opinion addressing concerns regarding favoritism in appointments by
judges, see Ohio Sup.Ct., Bd. Commrs. Grievances & Discipline, Op. 93-2 (1993).

For an opinion by the Ohio Ethics Commission advising upon the employment of
relatives see Ohio Ethics Comm., Op.90-010 (1990) advising that “Division (A)(1)
of Section 2921.42 of the Revised Code prohibits a city director of service and
safety from authorizing or otherwise using the authority or influence of his office
to secure the employment of his son by the fire department of the city in which he
serves even if: (a) the son has scored the highest on an examination which was
administered by a municipal civil service commission to screen potential
applicants; (b) the son has been recommended for employment by the city fire
chief; and (c) the director has not participated in interviewing the three eligible
candidates.”

Conclusion

It is improper under both the Ohio Code of Judicial Conduct and Ohio Ethics Law
for a part-time municipal court judge to appoint his or her son or daughter as
acting judge to serve during the judge’s vacation. Under the Ohio Code of
Judicial Conduct, an appointment by a judge of a relative within the third degree
of consanguinity to serve as acting judge may appear as an act of nepotism, even
though the appointee is qualified to receive the appointment. Under Ohio Ethics
Law, such appointment is improper because the appointee is a member of the
judge’s family who if appointed as acting judge would have a prohibited
pecuniary interest in a public contract.

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.