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Opinion

Opinion CJE Opinion No. 2001-14

Date: 10/24/2001
Organization: Massachusetts Supreme Judicial Court

The following is an archived advisory opinion of the Committee on Judicial Ethics (CJE) from the time period of 1989 through 2014, and the Code of Judicial Conduct that was in effect from October 1, 2003 to December 31, 2015. Archived advisory opinions also include the Code that was in effect through September 30, 2003. The Supreme Judicial Court adopted a new Massachusetts Code of Judicial Conduct, effective on January 1, 2016. A judge should not rely on any pre- 2016 CJE Advisory Opinion without contacting Supreme Judicial Court Senior Attorney Barbara F. Berenson, counsel to the Committee on Judicial Ethics, at Barbara.Berenson@jud.state.ma.us or 617- 557-1048.

Serving on Board of Trustees of Savings Bank

This will refer to your letter of September 10, 2001, in which you requested advice from the Committee regarding your ability to continue serving as a member of the Board of Trustees of a savings bank now that you have been sworn in as an Associate Justice of the District Court.

Your letter states that you are one of twelve members of the Bank's Board of Trustees. The Bank is a Mutual Savings Bank formed and operating under Massachusetts law. Since the 1980s, you have been one of the Bank's corporators. The corporators elect the Trustees and elected you as a Trustee in the summer of 1999. Once elected, Trustees serve for life.

The Bank is owned by its depositors and issues no shares of stock to anyone. The Trustees oversee bank policy but not day-to-day operations. More specifically, your letter states that the Trustees "establish policies to further the mission and objective of the Bank which is to maintain a Community Bank. The main concern of the Trustees is to protect the depositors and their money. The Board of Trustees do not influence any one particular loan that would be made by the Bank."

The Bank has branches in Ayer, Pepperell, Littleton and Devens, an industrial park on the former site of Ft. Devens. The Trustees meet one evening each month and are compensated for time spent attending meetings and taking care of other Bank matters.

Canon 5(B) of the Code of Judicial Conduct permits, with qualifications not here relevant, judges to serve as an officer or director of an "educational, religious, charitable, fraternal, or civic organization not conducted for the economic . . . advantage of its members." Making explicit Canon 5(B)'s implicit prohibition, Canon 5(C)(2) prohibits judges from serving "as an officer, director, manager, advisor, or employee of any business."

The question thus becomes whether the Bank is a "business." The description of the Bank's affairs set out at the beginning of this letter leaves little doubt that it is. Moreover, the Committee, like similar Committees elsewhere, has construed the word "business" as appearing in Canon 5(C)(2) quite broadly. In CJE Opinion 98-7, for example, the Committee stated that the Canon did not permit a judge to serve as an officer and director of a 600 member golf club because, although the golf club was a non-profit corporation, it had many of the indicia of a "business." In reaching that result, the Committee placed substantial weight on the fact that, in addition to its 600 members, the golf club had 18 to 20 employees, a budget in excess of $1 million and was in the midst of a major capital improvement project. See also CJE Opinions 93-1 (dealing with participation in a family business), 95-2 (dealing with participation in an investment club), 2001-5 (discussing various issues likely to arise out of service on a hospital's board of directors, including whether the hospital might be a "business" for purposes of the Canons), 2001-6 (dealing with service on the board of a condominium association) and 2001-11 (stating that Canon 5[C][2] prohibits service on the Board of Directors of a non-profit weekly town newspaper).

In the Committee's view, Canon 5(C)(2) prohibits your service on the Bank's Board of Trustees now that you have been sworn in as a Justice of the District Court.

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