Service on Board of Nonprofit Organizations
February 24, 2016
You are a judge of the trial court and have asked a series of questions concerning whether your service on the Board of Trustees of a non-profit private school attended by your children is consistent with the 2016 Code of Judicial Conduct ("Code"). Based on the facts included in your request for advice, the Committee on Judicial Ethics advises you as follows.
Rule 3.1 and 3.7 are most relevant to your questions. Rule 3.1 of the Code encourages judges to participate in educational, religious, charitable, fraternal, or civic extrajudicial activities not conducted for profit, even when the activities do not involve the law, because such participation helps integrate judges into their communities. Rule 3.1, Comment . Rule 3.1 cautions, however, that a judge's extrajudicial activities must not be reasonably likely to interfere with the proper performance of judicial duties or lead to the recurrent disqualification of the judge, and must not appear to a reasonable person to be coercive or to undermine the judge's independence, integrity, and impartiality.
Rule 3.7 describes some of the types of participation that are permitted, so long as there is no violation of Rule 3.1. For example, Rule 3.7(A)(5) provides that a judge may serve as a trustee of the non-profit organization unless it is likely that the organization(1) will be engaged in proceedings that would ordinarily come before the judge, or (ii) will frequently be engaged in adversary proceedings in the court of which the judge is a member or in any court subject to the appellate jurisdiction of the court of which the judge is a member. Rule 3.7 also identifies certain restrictions placed on a judge's involvement, for example, service on a fundraising or investment committee. See Rule 3.7(A)(3) and (4).
With these rules in mind, we turn to your questions:
1. May I serve on the Board of Trustees? Your service is consistent with Rule 3.7 of the Code, so long as it is not likely that that school will be engaged in proceedings that would ordinarily come before you or will frequently be engaged in adversary proceedings in the court of which you are a member. While you may participate in the Board's internal discussions related to fundraising, you may not otherwise participate in fundraising from within or outside of the school community (except from members of your family or judges over whom you have no supervisory authority) or the management or investment of funds. You must regularly reexamine the activities of the Board to determine if your service would lead to your recurrent disqualification or otherwise interfere with the proper performance of your judicial duties. Additionally, your responsibility to prevent the abuse of judicial office may in some circumstances obligate you to caution school personnel against using your status as a judge to enhance the school's financial, recruitment, or other interests. See Rule 1.3.
2. May I serve as clerk to the Board of Trustees? You describe the role of clerk as soliciting agenda items from the Board president, head of school, the school's business manager, and the director of development; assembling the agenda; keeping an accurate record of all proceedings of the Board; and drafting minutes. You may serve as clerk, consistent with the cautions described above.
3. May I serve on the Board's diversity committee? Yes, consistent with the cautions described above.
4. You also inquire about certain school activities, apart from your service on the Board. You serve as an admissions ambassador for the school, which requires you to attend admissions open houses and independent school information sessions to provide prospective applicants with information about the school. Your service as an admissions ambassador is consistent with the Code so long as neither you nor the school use or attempt to use your position as a judge to recruit applicants or to gain preferential treatment for any applicant. See Rule 1.3.
5. You also participate in the school's annual fair by visiting booths selling food, tickets, or other items to collect the money earned from attendees' purchases. After you collect the money, you deliver it to the appropriate school office. This non-coercive involvement in a school's fundraising activity is consistent with Rule 3.7(C), which permits a judge to participate in a child's normal, daily activities, including volunteering at a school-sponsored event intended to raise money for school activities.
You may serve on the board and participate in school activities consistent with Rules 3.1 and 3.7 of the Code. You have an ongoing obligation to reassess your own involvement in light of changing circumstances.
(1) This opinion relies on the facts you have provided to the Committee on Judicial Ethics. We have not undertaken an independent investigation of this information. If material facts have been omitted or misrepresented, this opinion is without force and effect.