Serving on Board of Trustees of Private, Nonprofit Hospital
January 11, 2005
CJE Opinion No. 2005-2
You have asked this committee for an opinion whether you may accept an invitation to serve on the board of trustees of a private, nonprofit, acute care community hospital.(1) As a judge, you are regularly assigned to sit in the community in which the hospital is located and your official duties and responsibilities often involve matters relating to the hospital. You have identified four ways in which your judicial duties may intersect with the hospital.
1. Judges in your court are routinely asked to consider and rule on discovery motions seeking the production of medical records from the hospital.
2. Judges in your court are often required to hear and decide civil commitment petitions pursuant to G. L. c. 123, involving patients in the psychiatric unit at the hospital.
3. Occasionally, judges in your court travel to the hospital to conduct bedside arraignments or pretrial detention hearings for hospitalized defendants in criminal cases.
4. Hospital employees (e.g., nurses, lab technicians, keepers of the records, security personnel, etc.) occasionally testify in pretrial motion hearings, jury and jury-waived trials, and other proceedings in your court.
Your request is governed by Section 4 C (3) and related commentary of the Code of Judicial Conduct. Section 4 C (3) provides:
"(3) A judge may serve as an officer, director, trustee, or non-legal advisor of an organization or agency devoted to the improvement of the law, the legal system, or the administration of justice; or of any educational, religious, charitable, fraternal, or civic organization that is not conducted for profit or for the economic or political advantage of its members, subject to the following limitations and the other requirements of this Code.
"(a) A judge:
"(i) shall not contribute to, or be a member of, such an organization, except a religious organization, if it is likely that the organization will be engaged frequently in adversary proceedings in the court on which the judge serves; and
"(ii) shall not serve as an officer, director, trustee, or non-legal advisor of such an organization if it is likely that the organization will be engaged in proceedings that would ordinarily come before the judge or will be engaged frequently in adversary proceedings in any court, state or federal, in the Commonwealth."
Section 4 C (3) attempts to draw the delicate balance between a judge's involvement in civic life and the need for both the fact and appearance of impartiality when fulfilling judicial obligations. It provides two standards for determining whether service as a trustee of a nonprofit organization is prohibited. First, service as a trustee is not allowed if the hospital "will be engaged in proceedings that would ordinarily come before the judge." Your summary of ways in which your judicial duties might intersect with the hospital indicates that serving on the board is prohibited by this clause of Section 4 C (3) (a) (ii). Certainly there are some adversarial circumstances in which the hospital is not a real party in interest, such as when the hospital merely is the physical site for an arraignment. Also, in some circumstances where medical records are sought, the hospital may be a mere stakeholder without a real interest in the proceeding. In other circumstances in which hospital records are sought or hospital employees are testifying, however, the hospital has an interest in the proceeding. For example, the credibility of hospital employees who testify may be at issue. Also, the hospital often has an interest in civil commitments made to the hospital's psychiatric unit. Given these circumstances in which the hospital routinely or often comes before you, you cannot serve as a trustee consistent with Section 4 C (3) (a) (ii). See CJE Opinion 2001-5 (interpreting similar language under prior version of Code and concluding that organization's appearance before judge in some capacity with some regularity precluded judge's serving as director). Serving as a trustee of the hospital would give the appearance of favoring the interests of the hospital over those of other litigants.(2)
The second clause of Section 4 C (3) (a) (ii) further states that a judge shall not sit as a trustee if the organization "will be engaged frequently in adversary proceedings in any court, state or federal, in the Commonwealth." Your letter does not provide information about the frequency with which the hospital engages in adversary proceedings in Massachusetts. A complex medical organization, however, may frequently find itself in court on routine matters, including regulatory issues, billing disputes, malpractice claims, and the like. If the hospital is engaged frequently in adversary proceedings in any court in Massachusetts, this would provide a separate, independent basis to prohibit your service as a trustee. See CJE Opinion 90-4 (requiring detailed factual analysis of circumstances in which organization may be involved in proceedings).
In sum, Section 4 C (3) (a) (ii) precludes your service as a trustee of this nonprofit hospital because, at a minimum, the hospital will be engaged in proceedings that will ordinarily come before you as a judge.
1 Your anticipated duties on the board would not include fundraising; those responsibilities are vested in a separate entity.
2 Moreover, Section 4 C (3) (a) (ii) does not allow for recusal as a remedy where the organization comes before the judge with some regularity. CJE Opinion 91-3 (stating that if organization's appearances are more than sporadic, recusal does not suffice).