Appointment As Director of Organization Involved in Litigation

August 23, 1990

CJE Opinion No. 90-2

You have requested the advice of this committee on whether you may serve on the board of directors of "a statewide organization of which the primary goal is to insure that the needs of all participants in the substitute care system are met -- children, foster parents, adoptive parents, legal risk parents, social workers and other concerned individuals." To that end, the organization offers "education and training programs to promote effective foster parenting," serves as a "link between substitute parents and [concerned] agencies," and seeks to ensure that parents and agencies "have the resources they need to function effectively." The organization's literature also indicates that it is "dedicated to the promotion and advancement of professional foster care" and that it "hope[s] to increase the number of quality foster homes available to children." Members of the organization pay an annual "pledge" of $15 (individual/family), $25 (supporting individual/family) or $50-$100 (agency).

Presumably, a significant portion of the membership is foster parents. In Massachusetts foster parents receive payment for their services from the Commonwealth. See CMR 4.13(8)(a)(7), 4.13(8)(b)(11) and 4.13(16). As you are aware foster parents are often involved in litigation pending in the Probate and Family Courts. For example, in petitions to dispense with consent to adoption under G. L. c. 210, § 3, foster parents are very frequently witnesses and often are themselves interested as prospective adoptive parents.

Canon 2 provides that:

"(A) A judge . . . should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

"(B) A judge should not allow his family, social or other relationships to influence his judicial conduct or judgment. He should not lend the prestige of his office to advance the private interests of others, nor should he convey or permit others to convey the impression that they are in a special position to influence him. . . ."

Your membership in an organization dedicated to the promotion of professional foster care would call into question your impartiality in deciding cases such as those mentioned above. It would also tend to lend the prestige of your office to the advancing of the interests of foster parents and has the potential to convey the impression that members of the organization have a special position of influence with you. For these reasons your membership on the board of directors would violate Canon 2.

There is a problem also under Canon 5. Under Canon 5(C)(2) a judge "should not serve as an officer, director, manager, advisor, or employee of any business." A judge may, however, "serve as [a] . . . director of an educational religious, charitable, fraternal or civil organization," subject to various limitations, as long as that organization is "not conducted for the economic or political advantage of its members." See Canon 5(B). Assuming that the organization is a non-profit corporation or, in any event, not an entity which seeks to make a profit for its owners, and assuming that the organization would qualify as an educational or, possibly, civic organization, nevertheless it does appear to be conducted, at least in part, for the economic advantage of its members. While people may not become foster parents to make money and may, indeed, be motivated out of an exemplary concern for children, the fact of the matter is they are compensated for doing so. Through the efforts of the organization, members are provided with education, training and other assistance to enable them to perform those services and thus be paid. Accordingly, Canon 5(B) would also preclude your service as a director.