Opinion  CJE Opinion No. 2007-9

Date: 09/12/2007
Organization: Massachusetts Supreme Judicial Court

After the Committee on Judicial Ethics issued this opinion, the Massachusetts Supreme Judicial Court adopted a revised Code of Judicial Conduct. Because this opinion was rendered under a prior version of the Code, a judge should not rely on it without contacting the Committee on Judicial Ethics.

Contact   for CJE Opinion No. 2007-9

Committee on Judicial Ethics

Table of Contents

Accepting Reimbursement of Travel Expenses for Drug Court Training Program

You are the judge in a session of one of the Commonwealth's drug courts, a session created in late 2002.  Initially, the court's activities were underwritten by a three-year grant from the Office of Juvenile Justice and Delinquency Prevention of the United States Department of Justice.  The Department of Justice paid the funds to the Office of the Chief Administrative Justice of the Trial Court which disbursed them to your division of the drug court.  From the beginning, your drug court contracted with a local juvenile drug treatment organization (referred to herein as "Treatment Center") to staff and essentially operate the drug court program.  Under the contract, Treatment Center supplied a drug court coordinator/director and caseworkers/counselors, all of whom Treatment Center had hired specifically to staff the drug court program and paid with Federal grant funds it received from your court.

When the initial three-year period ended, the court's life was extended by another grant from the Department of Justice and two additional, separate grants from the Substance Abuse and Mental Health Services Administration (SAMHSA) of the Federal Department of Health and Human Services.  As in the case of the initial grant, the Federal government paid the successor grant funds to the Trial Court, which dispersed them to your court and, through your court, to Treatment Center.

From the outset, the grant funds were conditioned on, among other things, attendance by your "drug court team" at periodic, mandatory training sessions.  The grants required judicial membership on the "drug court team" and judicial participation in the training sessions.  The grants also allocated funds to reimburse judges, and others, for costs they incurred as a consequence of participating.

This past year, SAMHSA again provided a grant for operation of your drug court, but this time it made the grant directly to the Treatment Center.  Nevertheless, the grant contained the same requirements for judicial attendance at training sessions and again set aside money to underwrite attendance costs.  Under the terms of the grant, money designated for reimbursement of attendance costs could be used for no other purpose and the difference between the amount set aside to cover those costs and the amount actually used had to be returned to SAMHSA at the end of the grant term.

You attended a required SAMHSA training session outside Massachusetts and were reimbursed, through Treatment Center, for the expenses you incurred in doing so.  The one-day training session had plenary and breakout components, all of which focused on the characteristics and effects of drug dependency and on increasing the efficiency and effectiveness of drug court efforts to deal with the difficult, often intractable, problems drug dependency produces.  From the agenda and the description of program content the agenda contains, it appears that the entire program was focused on drug dependency and operational efficiencies, not on a point of view that could be identified with one side or the other of a recurring type of contested matter.  See www.mayatech.com/cti/tdcgw07/agenda.cfm, last visited August 15, 2007.

Your request for advice was triggered by an order entered by another judge in your division after you returned from the training.  The order required a Treatment Center employee who was a member of the "drug court team" to testify in a probation revocation hearing the team had recommended for a juvenile who was not cooperating with program requirements.  No "drug court team" member had been called to testify in any prior proceeding under those or similar circumstances.  The incident led you to question whether the Code of Judicial Conduct permitted you to accept travel reimbursement from Treatment Center if its employees were potential witnesses in contested matters in cases brought in your division.  Pending receipt of the committee's opinion, you returned to Treatment Center the reimbursement money the center had paid you.

As you considered the propriety of accepting reimbursement, you became particularly concerned about the impact of CJE Opinion 99-12.  There, the committee expressed the view that the Code did not permit a judge to accept reimbursement for travel and attendance at a San Francisco program entitled "Enhancing Judicial Skills in Domestic Violence Cases."  The problem with reimbursement there was its source, a local service agency and police department using discretionary Federal grant monies provided by the Violence Against Women Office of the Department of Justice, an agency that had "a particular advocacy agenda." Insofar as local agencies were concerned, the committee observed that:

"Police personnel may be called as witnesses in your court in domestic violence cases and police records are often referred to in such cases.  [The service agency], typically for a fee, supervises visitation and offers counseling to families that come before your court; its records are often provided to your court; its personnel sometimes testify before your court; and you occasionally order that supervised visitation take place at its premises."

With that as background, your request for advice principally implicates three provisions of the Code.  Foremost among them is Section 4 H (1) which states that:

"A judge may receive compensation and reimbursement of expenses for the extrajudicial activities not prohibited by this Code, if the source or amount of such payments does not give the appearance of influencing the judge's performance of judicial duties or otherwise give the appearance of impropriety, subject also to the following restrictions:

  1. Compensation shall not exceed a reasonable amount.
  2. Expense reimbursement shall be limited to the actual cost of travel, food, and lodging reasonably incurred by the judge and, where appropriate to the occasion, by the judge's guest. Any payment in excess of such an amount is compensation."

Section 4 H (1) restates the essence of two other Code sections relevant to your request.  They are Section 2 A, which provides, in material part, that judges should conduct themselves "at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary," and Section 2 B, which prohibits a judge from "convey[ing] or permit[ting] others to convey the impression that they are in a special position to influence" him or her.

In applying those sections to the circumstances you have described, the committee assumes that the money you received for your travel to, and attendance at, the SAMHSA training session met the requirements of Sections 4 H (1) (a) and 4 H (1) (b), although you are in the best position to judge that.  Accordingly, the questions become, first, whether reimbursement is of a specific type the Code forbids and, second, whether reimbursement runs afoul of the general prohibitions contained in Sections 2 A or 2 B.

The answer to the first question is straightforward:  no explicit provision of the Code prohibits your receipt of the reimbursement monies.  You incurred the expenses to attend a training program designed to enhance the effectiveness of the work you and your colleagues do on a daily basis.  That work is at the heart of the judicial function and you may be reimbursed for training that helps you do it better.  To be sure, CJE Opinion 99-12 discussed provisions of the Code, now set out in Section 4 D (5), dealing with gifts or favors, but the training you attended was a condition of receiving a Federal grant, not a gift or a favor, and Section 4 D (5) has no applicability to the reimbursement you received.

The answer to the second question is not quite as straightforward.  Ordinarily, receipt of travel reimbursements from a person or entity engaged in substantial business in the court to which you are assigned would raise very troublesome questions under Sections 2 A and 2 B.  Indeed, the routine appearance of the police department and service provider in the court where the requesting judge sat animated the concerns about reimbursement the committee expressed in CJE Opinion 99-12.  For three principal reasons, though, the committee believes that CJE Opinion 99-12 is not controlling and that your receipt of reimbursement from Treatment Center was permissible.

First of all, Treatment Center employees do not routinely appear in the drug court as adversaries, litigants, or entities to which you may award income-producing business.  Instead, those employees appear as adjunct court staff to assist the court in providing services, adjudicative and other, to third parties.  The fact that on rare occasions the employees may be witnesses in a contested proceeding does not detract from their central role nor does it distinguish them from clerks, assistant clerks, probation officers, court officers, or judges who occasionally may be witnesses in contested matters as well.

Second, unlike the police and the provider discussed in CJE Opinion 99-12, the Treatment Center had no discretion with respect to reimbursing you for attending the training session. The grant required a judge to attend and you were the designated judge.  A portion of the grant was reserved for reimbursement and could be used for no other purpose.  The Treatment Center's delivery to you of Federal money that Federal law required it to deliver does not give rise to an appearance of impropriety or to a reasonable belief that Treatment Center is in a special position to influence you.

Finally, the current funding mechanism does not change the structural character the drug court program has had from the outset.  In the beginning, the program was a Trial Court program the Federal government funded with grants directly to the Trial Court and routed through your court to Treatment Center.  The current funding approach, while somewhat awkward, does not change the program's essential structure, for it remains a Trial Court program funded by the Federal government, even though funds now arrive by a different channel.  The program's historical context provides an added basis for concluding that Treatment Center's reimbursement does not violate either Sections 2 A or 2 B.

In sum, the committee believes that the Code of Judicial Conduct permits you to receive from Treatment Center nondiscretionary reimbursement of expenses you incur for travel to, and attendance at, mandatory training programs required by Federal grants that support operation of the drug court where you preside.

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