Some rules of conduct are worth repeating. This is one of them. Generally, it is not a good idea for a judge to hire a family member or friend as a court employee or to appoint them to an administrative position. There are a number of practical reasons for this view, including that the Indiana Code of Judicial Conduct requires judges to make hiring and appointment decisions in a fair and impartial manner.
Specifically, Rule 2.13(A) of the Code of Judicial Conduct provides that a judge:
- shall exercise the power of appointment impartially and on the basis of merit; and
- shall avoid nepotism, favoritism, and unnecessary appointments.
Appointees of a judge include assigned counsel, referees, commissioners, special masters, receivers, special advocates, guardians, and other court personnel. Jud. Cond. R. 2.13, Comm. 1. “Nepotism” is defined in the Code of Judicial Conduct as “the appointment or hiring of any relative within the third degree of relationship of either the judge or the judge’s spouse or domestic partner, or the spouse or domestic partner of such relative.” Jud. Cond. R. 2.13, Comm. 2. Persons within the third degree of relationship include great-grandparents, grandparents, parents, uncles, aunts, siblings, children, grandchildren, great-grandchildren, and nieces and nephews. Jud. Cond. Terminology.
Most judges are aware of these restrictions and readily avoid hiring or appointing relatives and friends. However, from time to time, even the most ethically-cautious judge may find herself faced with the situation of wanting to hire a relative or friend because that person is well-suited for an available position. In limited circumstances (and I cannot stress the word “limited” enough), the Code of Judicial Conduct allows for a judge to hire or appoint a relative.
To decide whether hiring or appointing a relative or friend may be justifiable under the circumstances, a judge first should examine Advisory Opinion #2-98 (Note: in Advisory Opinion #2-98, Canon 3C(4) is now Rule 2.13 and Canon 2B is now Rule 2.4, available on the Court’s website at courts.IN.gov/jud-qual) and ask himself the following questions:
- What is the degree, extent, or depth of the relationship of the prospective employee to the judge?
- Is the position considered relatively lucrative?
- Is the position permanent or temporary, full-time or part-time?
- What is the amount of day-to-day supervision and contact the judge would have with the prospective employee?
- Was the position announced or advertised in the same manner as other vacancies within the court?
- Were other qualified applicants considered?
Close familial or social relationships between a judge and a prospective employee are more likely to lead the public to believe that factors other than merit influenced the employment decision. In these situations, not only does the judge risk damaging the public’s trust by hiring the individual, but he also risks a spill-over effect, as the public also may question the judge’s impartiality to decide cases, given their mistrust of his administrative decision-making. For these reasons, the Commission on Judicial Qualifications repeatedly has advised judges in the past that employment or appointment of a spouse likely will never be appropriate.
Similarly, the more lucrative the position, the more likely that the public will be uneasy if a judge employs or appoints a relative. In contrast, a temporary position is less likely to draw concern.
A judge should announce or advertise the position and consider other qualified applicants. If a judge has not complied with either of these prongs yet hires the relative or friend, he is opening himself to public criticism and a possible ethics investigation.
After the judge has advertised the position, considered other applicants, and carefully evaluated the other factors above, she should re-examine the qualifications of the family member (or friend). If the judge still believes that the relative (or close friend) is uniquely qualified for the position, then the judge should consult with Commission staff and consider requesting a written advisory opinion from the Commission about the propriety of hiring the individual.
Assuming that the Commission agrees that hiring the individual is acceptable, the judge should take one last step before making the final hiring or appointment decision: consider the worst case scenario. What if the employment relationship does not work out? How will that affect the judge’s family/social/work/community relationships? What if other employees do not get along with the prospective employee and those employees need to complain about that person’s performance or actions? What if the judge has to take disciplinary action against the employee? A judge would be wise to consider the potential negative consequences of hiring a relative or friend, as the failure to do so can have disastrous results.
Ultimately, here are the three best pieces of advice I can offer to a judge who is considering whether to hire a relative or friend. First, be honest with yourself. Is the individual really the best person for the job or are you motivated to hire them for other reasons? Second, make a list of all the reasons you believe this person is more qualified than all other applicants. Would your reasons withstand the scrutiny of an objective observer? And, finally, proceed with extreme caution. After all, as Aldous Huxley once noted, “Hell isn’t merely paved with good intentions, it is walled and roofed with them.”
