Participating in Parent Advisory Council for Special Education

December 17, 2002

CJE Opinion No. 2002-18

You have sought the opinion of this committee as to whether serving as an officer of your town's parent advisory council on special education is proscribed by the Code of Judicial Conduct. Each town's parent advisory council on special education is established pursuant to G. L. c. 71B, § 3, which states in part that:

"The school committee of any city, town, or school district shall establish a parent advisory council on special education. Membership shall be offered to all parents of children with disabilities and other interested parties. The parent advisory council duties shall include but not be limited to: advising the school committee on matters that pertain to the education and safety of students with disabilities; meeting regularly with school officials to participate in the planning, development, and evaluation of the school committee's special education programs. The parent advisory council shall establish by-laws regarding officers and operational procedures. In the course of its duties under this section, the parent advisory council shall receive assistance from the school committee without charge, upon reasonable notice and subject to the availability of staff and resources."

The Code of Massachusetts Regulations further provides that, "[t]he [school] district shall conduct, in cooperation with the parent advisory council, at least one workshop annually within the school district on the rights of students and their parents and guardians under state and federal special education laws." 603 Code Mass. Regs. § 28.07 (4).

The bylaws of your town's advisory council call for the election of council officers. Recently, several officers have resigned, and the director of the special education department of your town's school system has encouraged you and other interested parents to submit their names for election to the positions of president, treasurer, or secretary. You were among those parents invited because you have a child with special education needs and have been working with the special education department staff for several years on your child's behalf. The special education department must create an Individual Education Plan ("IEP") for each child who has special education needs. On occasion, parents of such children will hire attorneys, educational consultants, or both, to assist them in developing or challenging an IEP. Sometimes, parents seek placement outside of a school system which may entail substantial cost to the town. This process can be adversarial and sometimes leads to litigation.

Your letter indicates that one of your concerns in considering the issue of serving as an officer is that there is a perception that factions within the advisory council and the special education department have been at odds in the past. The issue over funding of special education has been controversial and the subject of public debate, particularly when the issue of allocation of community resources arises.

In response, two provisions within the Code of Judicial Conduct are particularly applicable to your inquiry.

1. Canon 5 (B) provides that a "judge may participate in civic and charitable activities that do not reflect adversely upon his impartiality or interfere with the performance of his judicial duties. A judge may serve as an officer, director, trustee, or nonlegal advisor of an educational, religious, charitable, fraternal, or civic organization not conducted for the economic or political advantage of its members," provided that it is not likely that the organization will be engaged in proceedings that would ordinarily come before the judge, it is not likely that the organization will be regularly engaged in adversary proceedings in any court, and the judge does not solicit funds for the organization or give the organization investment advice.

We conclude that your participation on the parent advisory council would not cast doubt on your ability to act impartially, demean the judicial office, or interfere with the performance of your judicial duties. We also conclude that it is unlikely that the parent advisory council as an entity would be engaged in proceedings that ordinarily would come before you or be engaged in adversary proceedings with frequency in any other court in the Commonwealth. While IEPs can arise as ancillary issues in child custody, CHINS, and care and protection cases, they are not the focal point of the litigation, nor are advisory councils, towns, or school districts parties to such actions.

It is more likely that a member of the council, or the school department or the school committee which the council advises would be engaged in legal proceedings over an individual's special education issue. Legal disputes over an IEP follow an administrative law path until a disposition is made. A party to the case may seek judicial review of the administrative decision.

If an appeal of an administrative decision did come before you, application of the two part test for recusal outlined in Lena v. Commonwealth, 369 Mass. 571, 575 (1976), would be warranted:

"Faced, then, with a question of his capacity to rule fairly, the judge was to consult first his own emotions and conscience. If he passed the internal test of freedom from disabling prejudice, he must next attempt an objective appraisal of whether this was 'a proceeding in which his impartiality might reasonably be questioned.' S.J.C. Rule 3:25, Canon 3 (C) (1) (a), 359 Mass. 841 (1972)."

The higher your profile on the council, the more likely it is that application of the Lena test would result in recusal.

2. Canon 5 (G) prohibits a judge from serving in some positions that might otherwise be permitted by Canon 5 (B). Canon 5 (G) provides that a "judge should not accept appointment to a governmental committee, commission, or other position that is concerned with issues of fact or policy on matters other than the improvement of the law, the legal system, or the administration of justice."

In considering this provision, we first address whether the parent advisory council is a governmental entity subject to Canon 5 (G), or an educational or civic organization subject to Canon 5 (B). In CJE Opinion 96-4, we advised that a judge should not accept appointment to a task force established by the Boston Public School Committee to review the admission criteria for Boston Latin School. We concluded that service on the task force reviewing admission standards for Boston Latin School involved advising a nonjudicial branch of government on important policy issues, and, therefore, it fell within the proscription of Canon 5 (G). Similarly, your town's parent advisory council on special education was established pursuant to legislative mandate to advise a local nonjudicial branch of government on important policy making issues. These issues are unrelated to the improvement of the law, the legal system, or the administration of justice, and include funding, resource allocation, and potentially litigious situations. We conclude therefore, that the parent advisory council is "governmental" as that term is used in Canon 5 (G).

We next address whether your participation on the parent advisory council constitutes acceptance of an appointment to the council. Unlike the factual situation involved in Opinion 96-4, where the Boston School Committee "appointed" the members of the advisory task force on admission criteria for Boston Latin School, membership on a parent advisory council is "offered to all parents of children with disabilities and other interested parties." Accordingly we conclude that membership on the parent advisory council does not constitute an acceptance of an appointment. Furthermore, your membership on the council is wholly appropriate since the council was established primarily for parents who have children involved in special education.

Finally, we address the question of your serving as an officer of the parent advisory council. Service as an elected officer places you in a higher profile position on the council, and, although it may not technically be "an appointment," it presents the same kind of problems that Canon 5 (G) was designed to guard against. "Participation in such a process by members of the judiciary is less likely to settle a troublesome public issue than to lend credence to the all-too-common charge that the courts are part of the political process . . . ." McKay, The Judiciary and Non-Judicial Activities, 5 Law & Contemp. Prob. 9, 25 (1970). There is also the potential danger that your service as an officer of the council may be perceived as lending the prestige of the judicial office to advocate in the public arena as a representative of a group on issues related to policy making. See Canon 2 (B); Thode, Reporter's Notes to Code of Judicial Conduct, 90-91 (1973). As you stated, there is already a perception that factions within the advisory council and the school department are at odds. As a member of the council, you remain a parent who happens to be a judge. As an officer, you run the risk of being perceived as an advocate for the membership as a group even though the members of the group may clearly have divergent views.

Given the nature of the issues handled by the advisory council and its status as a governmental agency under the terms of Canon 5 (G), serving as an officer in the organization is proscribed by the Code of Judicial Conduct.