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Opinion 86

The Commission has been asked for an opinion as to whether Opinion No. 68, which says that judges should not appoint their spouses as their personal secretaries, requires the immediate termination of a spouse who when appointed was qualified on the basis of merit rather than nepotism and remains so qualified. Canon 1 states that judges must avoid impropriety and the appearance of impropriety, and the subsequent appointment of a spouse after the issuance of Opinion No. 68 on February 22, 1985, would be per se inappropriate but, in the case of appointments made prior to the issuance of this Opinion, while a strong inference would arise that the employment was the result of the relationship rather than merit and ability, this inference would be rebuttable and such employment need not be terminated so long as the continued employment can be affirmatively shown to be justified on the basis of ability rather than relationship.

[Pertinent Code of Judicial Conduct provisions: Rules 1.2(B), 2.4(B), 2.5, 2.11. Cross reference to other relevant opinions for review: #14, #68.]

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