AO No. 2016-5 — Adoption of New Antinepotism Policy and Rescission of AO No. 1996-11

[Entered December 7, 2016; effective January 1, 2017, except as otherwise provided.]

On order of the Court, notice of the proposed new antinepotism order and an opportunity for comment in writing and at a public hearing having been provided, and consideration having been given to the comments received, Administrative Order No. 2016-5 is adopted and replaces Administrative Order No. 1996-11, which is rescinded, effective January 1, 2017.

Administrative Order No. 2016-5

Antinepotism Order

1. Policy. All courts in Michigan are committed to make all business decisions – including decisions regarding employment, contracting with vendors, and selecting interns – on the basis of qualifications and merit, and to avoid circumstances in which the appearance of impropriety or possibility of favoritism exist. On the basis of this policy, the following situations are prohibited:

(a) A superior-subordinate relationship existing at or developing after the time of employment between any related employees;

(b) A related chief judge and a court administrator working in the same court, regardless of whether there is a superior-subordinate relationship;

(c) Except as waived under this order, a related judge and court employee working in the same court.

All other relatives of court personnel who meet established requirements for job vacancies, court contract, or internship opportunities based on their qualifications and performance are eligible for judiciary employment, contracts, or internships in the same court.  But advocacy of one relative on behalf of the other is prohibited in all circumstances.

2. Definitions. For purposes of this order, the following definitions apply:

(a) “Relative” includes spouse, child, parent, brother, sister, grandparent, grandchild, first cousin, uncle, aunt, niece, nephew, brother-in-law, sister-in-law, daughter-in-law, son-in-law, mother-in-law, and father-in-law, whether natural, adopted, step or foster. The term also includes same-sex or different-sex individuals who have a relationship of a romantic, intimate, committed, or dating nature, which relationship arises after the effective date of this policy. The definition of relative does not include two related judges who are elected to or appointed to serve in the same court.

(b) “Court Administrator” includes the highest level of administrator, clerk, or director of the court who functions under the general direction of the chief justice or chief judge, including but not limited to state court administrator, circuit court administrator, friend of the court, probate court administrator, juvenile court administrator, probate register and district court administrator/clerk.

(c) A “superior-subordinate relationship” is one in which one employee is the direct supervisor of the other employee.

(d) An intern is a student or trainee who works for the court, with or without pay, to gain work experience.  

(e) A vendor is an individual or someone appearing on behalf of a corporation or other entity that offers to provide or provides goods or services to the court.

3. Application. This policy applies to all applicants for employment, as well as all full-time and part-time employees, temporary employees, and contractual employees, including independent contractors, interns, vendors, and personal service contracts.  

4. Affected Employees. No person shall be transferred, promoted, or rehired following separation in a position that would create a nepotic relationship in violation of this policy.

5. Collective Bargaining Agreements. After the date this order enters, chief judges and court administrators are prohibited from entering into collective bargaining agreements inconsistent with this policy.

6. Conflicts; Waiver. The chief judge of a court shall resolve any employment situations that conflict with or would conflict with this policy, unless the conflict involves a relative of the chief judge. In such a situation, the State Court Administrator shall resolve the issue.

In making a hiring decision, a chief judge (or the State Court Administrator, if the chief judge of a court is a relative of the prospective employee) may waive the prohibition in Paragraph 1(c) if the following requirements are met:

(a) The position for which the waiver is sought must have been announced or advertised to the public in the same manner and for the same duration as other vacancies within the court.

(b) The prospective employee’s judge relative cannot have participated in any way in the selection process.

(c) Other qualified applicants must have been considered.

(d) Selection of a candidate who is related to a judge must have been based on merit and qualifications, including evidence that the candidate meets the minimum requirements for the position.

(e) The chief judge (or the State Court Administrator, if applicable) completes and files with the State Court Administrative Office a form approved by the State Court Administrative Office in which the chief judge affirms that the court has followed this procedure.

If an employee is employed by a court and a relative of the employee subsequently becomes a judge in that court, the prohibition does not apply as long as the judge is not in a superior-subordinate position with the employee and as long as the employee retains the current employment status. If the employee seeks a different position, a court may seek a waiver only if it complies with the waiver procedure outlined above.

In making a decision about a waiver, the chief judge or State Court Administrator must determine whether the requirements listed above have been met, and whether such employment would create an appearance of impropriety or possibility of favoritism.

A decision rendered by a chief judge or the State Court Administrator under this order is not appealable or otherwise subject to review.

7. Chief Judge Appointments. Nothing in this policy prohibits the Supreme Court from selecting any judge as a chief judge of a court. If such selection occurs, and such selection creates a nepotic relationship, the putative chief judge shall provide to the Court, and the Court shall approve, an alternative means by which the relative of the chief judge shall be supervised.

8. No new rights created. Adoption of this policy creates no new rights for employees or prospective employees.

9. Grandfather clause. This policy shall not apply to any person who is an employee of a court on the date this order enters. However, from the date this order enters, no person may be transferred, promoted, or enter into a nepotic relationship in violation of this policy, except as provided herein.