The Ethics Advisory Committee has been asked for its opinion on this question: Whether a Juvenile court probation officer can ethically serve as a probation officer in the same geographic location as the officer's spouse who is a prosecutor with the County Attorney's office.

It is the committee's opinion that the answer is yes unless the probation officer's spouse is appearing as the attorney of record in the same case that the probation officer is assigned to or the probation officer's diligence or impartiality might be reasonably questioned because of a personal bias or prejudice or the receipt of independent information acquired through the marital relationship.

The Public Officers and Employees' Ethics Act sets forth standards of conduct for officers and employees of the State of Utah and its political subdivisions in areas where there are actual or potential conflicts of interest between their public duties and their private interests. Utah Code Ann. 67-16-1 et. seq. It is the belief of the committee that none of the provisions contained in the Act provide any specific guidance as to whether a juvenile court probation officer can ethically serve in the same geographic location as the officer's spouse who is a prosecutor with the County Attorney's Office. However, because juvenile court probation officers are employees of the court and under the broad supervisory authority of the juvenile court judges, the Code of Judicial Conduct provides some guidance.

Canon 3Brequires a judge to diligently discharge administrative responsibilities, maintain professional competence in judicial administration, and facilitate the performance of the administrative responsibilities of other judges and court officials. The Canon also provides that a judge should require staff and court officials subject to judicial direction and control to observe relevant ethical standards of fidelity and diligence. Under this provision, a juvenile court judge has the responsibility to ensure that court staff and officials observe appropriate ethical standards.

The applicable ethical standard is contained in Canon 3C(l)(d) which provides that disqualification of a judge must be entered in any proceeding where the judge or the judge's spouse is a party to the proceeding, acting as a lawyer in the proceeding, has an interest in the proceeding that could be substantially affected by the outcome of the proceeding, or is likely to be a material witness in the proceeding. It is the committees opinion that Canon 3 establishes the relevant ethical standard for probation officers under these circumstances and that the Code would not prohibit a probation officer from serving in the same geographic location as the officer's spouse who is a prosecutor. However, the Code would require the probation officer to disqualify himself or herself in any proceeding where the probation officer's spouse was appearing as an attorney in the case. This practice would avoid any appearance of impropriety and the concern that the probation officer's impartiality might be reasonably questioned.

In addition, Canon 3C(l)(a) requires a judge to enter a disqualification in a proceeding if the judge has a personal bias or prejudice concerning a party or an issue, or has personal knowledge of disputed evidentiary facts concerning the proceeding. It is the committee's opinion that if a probation officer's diligence or impartiality might be reasonably questioned because of a personal bias or prejudice or the receipt of independent information acquired through the marital relationship, the probation officer should disqualify himself or herself from serving as a probation officer in that case.