State of Washington

Ethics Advisory Committee

Question

May a child of a judicial officer be employed on a temporary basis in the elected county clerk’s office in the court in which the judicial officer sits?

The court has eight full-time judges and two full-time court commissioners. The child applied for employment, and was hired, as extra help for the summer. The county clerk has hired extra help at various times of the year for several years. The child’s duties are clerical in nature, varied, and include refiling, copying and document retention. The child does not perform in-court clerk’s duties. The child does not have contact with the parent judicial officer in any employment capacity.

The child was hired by the independently elected county clerk over whom the judicial officer has no supervisory control. The elected county clerk is not an at-will employee of the court’s judicial officers. The elected county clerk is free to select, and has selected, any employee applicant the county clerk chooses to select.

Answer

CJC Canon 2 provides that a judicial officer should avoid impropriety and the appearance of impropriety and act in a manner that promotes public confidence in the judiciary. Canon 3 addresses judicial duties and the standard that they be performed impartially and diligently. Canon 3(B) discusses the administrative responsibilities of judges and requires them in part to facilitate the performance of the administrative responsibilities of court officials, to require staff and court personnel subject to their direction and control observe the same standards of fidelity and diligence that apply to the judicial officer, and that the exercise of appointments should be on the basis of merit, avoiding nepotism and favoritism.

In addition to the provisions set forth in the Code of Judicial Conduct, the duties and authority of presiding judges are set out in GR 29. That court rule provides in part at section (f)(5) that the presiding judge supervises the daily operation of the court including all personnel assigned to perform court functions. The commentary to that section recognizes in some superior courts, the clerk’s office may be under the direction of a separate elected official and in those cases directs the presiding judge to communicate to the county clerk concerns regarding the performance of statutory court duties by county clerk personnel.

Previous ethics opinions have addressed several distinct fact situations where a relative of a judicial officer is employed in a judicial office in the same court as the judicial officer sits. The first is Opinion 95-2 in which it was opined that a judicial officer should not preside over proceedings in which the judicial officer’s spouse has prepared presentence reports or other reports for the court because in those cases the judicial officer’s impartiality is called into question. The second is Opinion 99-12 addresses a situation in which a judicial officer is married to a deputy court administrator who is supervised by a court administrator who is supervised by the city manager. In that case, the deputy court administrator was employed in the court clerk’s office prior to marriage to the judicial officer and the court developed a protocol regarding employment and supervision of immediate family members. That protocol provides that no judge may act as presiding judge if a family relationship exists between the judge and court staff and the presiding judge is the sole liaison between the judges and court administration. The third is Opinion 05-6 in which it was opined that the child of a judicial officer may not be hired by a court director who reports to the court’s judicial officers.

This question presents a different question than was discussed in Opinion 05-6, which involved a court director over which the judicial officers had supervisory control. Because in this inquiry the child of the judicial officer was hired and is supervised by an independently elected county clerk, the child may be employed in that office under the conditions set out in the question.

Opinions 95-2 and 99-12 did not address hiring of a relative of a judge but rather addressed the operation of the clerk’s office in light of the fact that an employee of the court clerk’s office is a relative of a judge. Opinion 95-2 opined the judge, who has a spouse employed as a probation officer, should not preside over any case in which the spouse has prepared presentence or other reports. In Opinion 99-12, the relative was an employee of the court administrator’s office before the marriage to the judicial officer. To rectify any appearance of impropriety or partiality because of the employment of the judge’s relative, the court developed a protocol that included the judicial officer/relative may not serve as the court’s presiding judge if that position has supervision over the court administrator’s office or the court director.

It is appropriate to distinguish between hiring a new employee when that new employee is a relative of a judicial officer and is supervised by someone who reports to the judicial officers and permitting an employee to remain employed after a relative of the employee becomes a member of the court where the relative is employed or there is a change in status relative to the court employee and the judicial officer after court employment has taken place. In the latter cases, the judicial officer is not appointing the relative to any position because they held the position before the judicial officer came on the bench or the relationship status changed subsequent to the hiring of the court employee. Even though the judicial relative/employee was hired before the judicial officer/relative became a member of the court, precautions should be taken to preserve the public confidence in the integrity and impartiality of the judiciary.

Development of a protocol to ensure that the judicial officer has no supervisory authority relative to the court employee/relative and the supervisor of that employee will guard against an appearance of partiality. Among the things that a court may want to include in such a protocol are the following:

• The employee will have not contact with the judicial officer/relative in any employment capacity.

• The judicial officer may not serve as the presiding judge, if in that capacity he or she, would have supervisory authority over court clerk personnel including the employee/relative.

• Judicial officers, court employees and other affected persons are advised of the supervisory and reporting relationships in the clerk’s, administrator’s or court director’s office.

• The presiding judge should develop a protocol for hiring employees in those courts in which the court administrator or court director are judicial employees who report to the presiding judge based upon merit avoiding favoritism and nepotism.

• In courts where the clerk’s office is under the direction of a separate elected official, the presiding judge should strongly encourage the county clerk to develop a hiring process for court clerk office employees which promotes public confidence that employees are hired on the basis of merit avoiding favoritism and nepotism.

• In the absence of a clear hiring process based on merit, the judicial officer should discourage family members residing in the judicial officer’s household and others with whom the judicial officer shares a close personal relationship from seeking employment in the county clerk’s office.

Opinion 05-09

11/10/2005