You have requested the advice of this Committee regarding your ability to order supervised visitation at a center that is owned and run by two children of one of your court's Family Service Officers. That officer is not an owner of the center and is not compensated by it. She did train some of the staff. Although there is another center, it is geographically remote from part of your court's jurisdiction and often has a long waiting list. The (nearby) center serves an important need and it would be appropriate to send some cases there. You and your colleagues are concerned about the effect of Rule 2(B) of the Canons of Judicial Ethics.
Canon 2 is headed, "A Judge Should Avoid Impropriety and the Appearance of Impropriety in all His Activities." Subsection (A) states: "A judge . . . should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." Subsection (B) further provides that a judge "should not lend the prestige of his office to advance the private interests of others . . . ." Canon 3(B)(4) provides: "A judge . . . should exercise his power of appointment only on the basis of merit, avoiding nepotism and favoritism."
We stated our belief in Opinion 89-5 that Canon 2(B) "must be read in the context of the purposes of Canon 2 to prevent improper conduct -- i.e., conduct that reflects improper use of the judicial office or that a reasonable member of the public might believe reflects such improper use." We advised that the Canon would be violated if a judge sought reimbursement from the Commonwealth for renting an apartment from the spouse of a colleague while on assignment away from home when the apartment was not generally available for rent. We stated explicitly that we did not "mean to suggest that the appointment of a judge's spouse or child as a master, receiver, or bar advocate on the same basis that other lawyers receive such appointments would violate Canon 2. There would be a Canon 2 problem only in an out-of-the-ordinary situation, such as that presented by excessive appointments given to such a spouse."
We relied in Opinion 89-5 on the Supreme Judicial Court's opinion in Matter of Bonin, 375 Mass. 680 (1978), in which it found a violation of Canon 2 and Canon 3(B) when Chief Justice Bonin appointed as a secretary the sister of a friend for whom Bonin had done extensive legal work in the past and who had spent substantial monies on Bonin's behalf at the time he was appointed a judge. We stated that Bonin indicates the "reach of Canon 2 to situations in which a judge exercises administrative discretion regarding the Commonwealth's money in a way that suggests favoritism to a private party."
Shortly thereafter, however, we advised in Opinion 89-6 that there was no violation of Canon 2(B) when a judge appointed a lawyer as counsel in juvenile matters when the lawyer's spouse was a full time faculty member of (a law school) and the judge had just become a trustee of that institution. The judge had previously appointed the lawyer as counsel and had no other professional, business, or social relationship with either the lawyer or the spouse. Finally, in Opinion 89-7, we dealt with an inquiry about the propriety of a judge of the Probate and Family Court's appointing the spouse of a colleague on the court as a guardian. We concluded:
"Probate and Family Court judges appoint many guardians and the guardians do not work for the judge. Absent extraordinary conditions, such as excessive appointments, the committee believes that as a general rule appointment of the spouse of a colleague as a guardian on the same basis that other attorneys are appointed does not per se involve favoritism, nepotism, or the forbidden use of the prestige of the judicial office to advance the private interests of others. It should therefore not be precluded automatically . . . . We do believe, however, that each time a judge considers an appointment of a relative of a colleague, the judge should consider the particular circumstances of his or her relations with the colleague in making a determination whether the prohibitions of Canon 2 and Canon 3(B)(4) apply."
The provisions of the Code of Judicial Conduct and our advisory opinions interpreting it mark the boundaries of your inquiry. Opinions 89-6 and 89-7 are close to yours, for we think that similar considerations apply when the children of court officers are the beneficiaries of a proposed appointment. But there is a further difficulty presented by your request. Judges appoint many lawyers and guardians and thus we were able to say that when there was a good reason to appoint the relative of a fellow judge, that was permissible so long as the appointment was made on the same basis as appointments of other lawyers and guardians and so long as such appointments were not excessive. But there are apparently only two visitation centers that are feasible for referral, and in some instances the (nearby) visitation center is more appropriate because of factors of proximity and waiting list delays. It is therefore not possible to comply with a general admonition that supervised visitation orders for the center be entered on the same basis as orders to other centers. Indeed, it is possible that the center was established and the site chosen in substantial part because of the potential for business from the court.
Because the center appears to be one of only two resources, we do not believe that the Canons of Judicial Ethics should preclude the court from considering it as a supervised visitation center. But the possible appearance of favoritism is high. We believe that the judges of the Probate and Family Court should be concerned each time they consider ordering supervised visitation there that the use of the center is particularly appropriate in that case.
The judges should also make a point of keeping themselves informed as to the availability in the future of other resources that may also be used to share the responsibility in a manner that promotes even-handed treatment.