| Date: | 03/31/2010 |
|---|---|
| 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.
You are a justice of the Trial Court who has requested an opinion from the Committee as to whether you may receive a monetary award through an awards program recognizing service to the community. You also ask, if you cannot accept the award yourself, whether you may designate a charitable organization to receive it.
I. The Award
According to the brochure you provided to the Committee, the program from which you will receive the monetary award "is an awards program that provides recognition and direct financial support to individuals of creativity, vision and leadership who work in community service in a particular area. . . . [and that] celebrates the builders of the community; the social entrepreneurs who often go unrecognized, but who make a vital contribution to our quality of life." The program "provides an opportunity to identify and support the best practices of community service" and one of its goals "is to be a highly visible mechanism for public recognition of excellence in community service." To that end, "[p]ress coverage of the awards presentation is encouraged." "[A] not-for-profit organization offering philanthropic design and management services to individuals, foundations and corporations" administers the program. (Emphasis omitted).
Possible recipients of the grant are nominated "by a group of `spotters,' individuals representing diverse parts of the community. They serve for a two-year period. During that time, the spotters agree to identify individuals who, by virtue of their leadership and service qualify for this award. The spotters serve on a voluntary basis." To be eligible, "[n]ominees must be engaged in some form of community service. They may work for a government agency or a community organization, or they can be doing volunteer work." Nominees cannot be "individuals who hold public office." Once the spotters make their nominations, "[a] small selection committee reviews the nominations and makes the final selection. [The administering organization's] staff conducts a complete review and reference check on all finalists. Selecting a group of fellows [i.e., award recipients] that represents the diversity of the community is a prime consideration."
The program honors six individuals each year, and each of those six fellows "receives a grant of $10,000 each year for three years." The donor funding the program "wishes to remain anonymous." The funds the fellows receive "are absolutely unrestricted. The recipients may use them to stabilize their personal finances, to take time off for special projects or a sabbatical. Some might choose to go back to school or obtain some skills training. Others might choose to use the funds as social venture capital to seed new projects. Recipients will not be required to continue in their present work." Additionally, "[n]o reports will be required of recipients on their activities. Other than appearing at an initial presentation, they will not be required to work together or attend meetings. Fellows are invited to share their experiences and discuss their work over the course of the year, but participation is not mandatory."
II. Code Application
A. Scholarship or Fellowship
Given that the program refers to recipients as "fellows," the logical Code provision with which to start is Section 4D(5)(g). This subsection provides that "[a] judge shall not accept . . . a gift, bequest, favor, or loan from anyone except for . . . . a scholarship or fellowship awarded on the same terms and based on the same criteria applied to other applicants . . . ." Section 4D(5)(g); see Canon 5(C)(4)(b) (setting forth pre-October 2003 version of this rule). Neither the CJE Opinions(1) nor the Commentary to Section 4 discusses this provision directly, but the terms' dictionary definitions provide guidance. A "scholarship" is "[f]inancial aid awarded to a student, as by a college." The American Heritage Dictionary 1098 (2d ed. 1985); Webster's II New College Dictionary 988 (1999) (same). Similarly, a "fellowship" is "[a] scholarship or grant awarded a graduate student in a college or university." The American Heritage Dictionary 496 (2d ed. 1985); Webster's II New College Dictionary 411 (1999) (same). In both instances, the implied understanding is that the recipients will use the awarded funds towards their education in some way.
Here, however, the use of the awarded funds is "unrestricted" and unmonitored; the recipients may use the $30,000 in any way they choose, even in a manner unrelated to the program's goal. In this sense, the award is similar to a gift, i.e., "`something voluntarily transferred from one person to another without compensation.'" CJE Opinion 2001-9, quoting Webster's New Collegiate Dictionary 517, 268 (Merriam 1987). Further, the use of the word "applicants" in Section 4D(5)(g) suggests that the recipient sought the award, whereas here, the recipients are nominated by a group of volunteers who identify deserving individuals in the community. The American Heritage Dictionary 121 (2d ed. 1985) (defining "apply" as "[t]o request or seek assistance, employment, or admission[,]" and "applicant" as "[a] person who applies, as for a job"); Webster's II New College Dictionary 55 (1999) (same).
CJE-Opinion 99-11 demonstrates the inapplicability of Section 4D(5)(g) to this situation. There, the Committee considered whether a judge could attend a program if his travel expenses were funded by the grantees of the federal grant under which the program was presented. The program was presented by the National Judicial Institute on Domestic Violence; "[t]he grant funds [were] made available by the Violence Against Women Office through local grantees. The grantees [were] police departments and district attorneys' offices, which have some discretion as to how those funds are spent." CJE Opinion 99-11. The Committee concluded "that the payment of travel expenses [did] not fall within any of the listed exceptions" in Canon 5(C)(4). Id.
Specifically, the Committee found that "[t]his is not the kind of award that falls under the general notion of a scholarship or fellowship. Those are awards made available to a wide group for a program of scholarly study. What [was] involved in this inquiry [in CJE Opinion 99-11] [was] a grant to judges to pay travel expenses to a single conference. That seems to [the Committee] quite different from the ordinary understanding of `scholarship or fellowship.'" Id. (emphasis added). The $30,000 award is not intended "for a program of scholarly study" thus it does not fall within the "scholarship or fellowship" exception to Section 4D(5).
B. Gift
This award is accordingly a gift, and you cannot accept this gift unless it falls into one of the two other exceptions in Section 4D(5) that arguably apply to this situation. First, if the gift is "incident to public recognition of the judge," he or she may accept it as long as its value does not exceed $350. Section 4D(5)(a). This award is in recognition of your contributions to the community, and the program's desire for press coverage establishes the intended "public" aspect of the recognition, as does one of its goals - "to be a highly visible mechanism for public recognition of excellence in community service." The award, however, certainly exceeds $350, thus this exception does not apply.
The second exception that may apply is Section 4D(5)(h), which allows a judge to accept "any other gift, bequest, favor or loan, only if: the donor is not a party or other person who has come or is likely to come or whose interests have come or are likely to come before the judge; and, if its value exceeds $350.00, the judge reports it in the same manner as the judge reports compensation . . . ." This exception, however, does not apply to "a gift, favor, or loan of the type set forth in Sections 4D(5)(a), 4D(5)(b), 4D(5)(f) or 4D(5)(g) that does not meet the requirements set forth there . . . ." This provision distinguishes Section 4D(5)(h) from its precursor, Canon 5(C)(4)(c). See CJE Opinion 98-17 ("We think that the difference between the categories mentioned in subsections 4(a) and (b) on the one hand and subsection 4(c) on the other is the difference between gifts that may be accepted without reporting and gifts that may be accepted if reported . . . .").
As the amount of the award here precludes it from meeting the requirements of Section 4D(5)(a), it "may not be accepted under the authority of this Section 4D(5)(h)." Section 4D(5)(h) (emphasis added); see Preamble ("When `may' is used, it denotes permissible discretion or, depending on the context, it refers to action that is not covered by specific proscriptions."). The Commentary to this section explains:
"Under the last sentence of Section 4D(5)(h), some gifts may not be accepted even if they meet the requirements of Section 4D(5)(h). For example, a gift incident to public recognition of the judge in excess of the reporting amount in Section 4D(5)(h). . . may not be accepted even though the donor or lender is not a party or other person who has come or is likely to come or whose interests have come or are likely to come before the judge . . . ."
Commentary to Section 4D(5)(h).(2)
The exceptions to Section 4D(5) therefore do not make acceptance of this gift permissible. The Committee also notes that the total amount you would receive is almost ninety times the maximum unreportable amount of $350. The Committee believes that $10,000 per year for three years with no conditions on or stated purpose for the use of the funds raises questions as to whether such a gift is consistent not only with Section 4D(5), but also with the spirit of various provisions of the Code, including Sections 2A, 4A(1), and 4H.
Acceptance of this monetary award would therefore violate the Code.
C. Designation to a Charity
Finally, you ask whether you may designate a charitable organization to receive the gift. Even though you would not be the ultimate recipient of the funds under such an arrangement, the gift would still be passing through your hands. For this reason, this designation would not be a simple private donation to a charity, see, e.g., CJE Opinion 09-2 (finding "periodic donation or sale of the fruits of [judge's] creative labor [i.e., photographs judge took] . . . does not produce the dangers against which Section 4D(1) is designed to guard"); CJE Opinion 95-4 ("[N]othing in the Code would prohibit you from making contributions to the not-for-profit corporation."); instead, the donation would be more akin to a fund-raising activity that is impermissible under the Code. Section 4C(3)(b)(i) (prohibiting judges from "personally participat[ing] in the solicitation of funds or other fund-raising activities"); see, e.g., CJE Opinion 08-11 (agreeing with judge's decision to return to probation officer in judge's court an unsolicited contribution officer made to charity in which judge participated).
Designation of the gift to a charity does not mitigate any of the prohibitions of Section 4D, and it is thus inappropriate.
