Opinion  CJE Opinion No. 2014-3

Date: 07/18/2014
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. 2014-3

Committee on Judicial Ethics

Table of Contents

Serving on Board of Trust Whose Mission is to Distribute Funds for the Benefit of Persons in the Community Where the Judge Sits

You are a first justice of the Trial Court who has requested an opinion from the Committee regarding your involvement with a trust that directs the disbursement of its yearly income to a specific community (“the trust”).  Specifically, you ask if you may sit on the board associated with the trust given its mission to distribute funds that will be used for persons in the community in which you preside, and if you may direct or request that any of the funds be distributed to entities that will be providing services for probationers in the community in which you preside.  This inquiry triggers analysis under Section 4C(3)(b)(ii).

I.  Background (1)

A.  The Trust  
The trust was established eighty-five years ago, and the trustee is a large banking institution.  Paragraph 34 of the trust states that three-fourths of the trust’s “net income each year is to be paid over to a ‘board composed of the occupants for the time being of the following positions:’” (1) the judge in the position you currently hold; (2) the pastor of a specified church; and (3) the president of a specified local charitable society (collectively, “the board”).  The individuals holding each of those positions are to disburse the funds in the trust’s name “‘for such objects of public charity as they shall deem most for the welfare of the inhabitants of that . . . [specified geographic location], giving preference to the relief of those of such inhabitants as have without fault of their own suffered reverses of fortune and are in need of assistance.’”  In the event of a vacancy on the board for any reason, “the disbursement of the funds shall be in charge of ‘three persons holding such local official position as shall be most likely to bring them into contact with objects of charity.’”

As the bank was unaware that you held your current position in 2010, the trustee did not seek your input for disbursement.  The trustee did seek your input in 2011 and in 2012, but you took no position and deferred to the other members on the board.  In 2011, the trust distributed $39,468 to the specified church and $39,468 to the specified local charitable society; in 2012, the trust distributed $37,500 to each agency “designated by the other board members . . . .”

You did participate in the disbursement of trust’s funds in 2013.  “The history of disbursement suggested that [the other two board members] would each vote to disburse funds to appropriately qualified programs under their control; for 2011 and 2012, that meant they each received half of the funds.”  You therefore requested that one-third of the funds ($28,000) be distributed to the Salvation Army (2) which operates a community center in the community in which you preside.  The trustee’s transmittal letter informed the Salvation Army that the money was a grant from the trust and was “‘to be used for services, programs and outreach to young men and women who are in need of assistance, including, without limitation, a planned collaboration with’” your court’s probation program. (3)

B.  The Probation Program and the Community Center  
The probation program in question “involves intensively supervised probation for defendants in [your court], aged eighteen through twenty-five, who either have been placed on probation for serious offenses and/or are thought to be significantly at-risk (including individuals thought to be associated with urban gangs).”  Your colleague who founded, developed, and presides over this probation program, has “wanted to have access to a physical space where the probationers could participate in community programs” and for years “has been looking for ways to partner with the police and other local agencies to provide skills training, educational programs and recreational opportunities” for the probationers.  The court is not financially able to fund these types of programs.  With the funds from the trust, however, the court “is uniquely situated to make funds available to organizations that are in such a position.”

The community center formally requested the funds from the trust in 2013, and in its letter, the community center “promised that the funds would be used ‘to advance the lives of men and women served through the [community center’s] planned collaboration with the [probation] program and to provide services and support to men and women in need as they endeavor to make better life choices for the future.’”  The Salvation Army provided the following rough accounting as to how it used the trust’s 2013 funds in the community center:  “$9,216 for staff and personnel; $4,368 for food and beverages; $3,925 for use of equipment and supplies; $8,970 for ‘occupancy’ of the gym, a fitness room and a classroom; and $2,700 for administrative support services.”

Over this past year, twelve probationers have regularly attended the community center once a week for a two-hour session.  “The first hour of each session involves physical exercise . . . . In the second hour, the probationers come together in a classroom, where they are fed a nutritious meal and presented with information from various persons” including successful community residents, local government representatives, and federal employees.  Without the community center’s “participation in the [probation] program, there would likely be no meal and certainly no use of the [c]enter’s physical facilities.”  The probationers who attend programs at the community center benefit directly and indirectly from the trust’s funds, and it is unlikely that they would be able to have access to the community center without the trust’s funds because the community center charges a monthly fee.

Neither the community center nor the Salvation Army is a party to any litigation pending before the court, or has been a party during your tenure as a judge.  Additionally, your court “receives nothing from the [community center] except its promise to work with” members of your community, including probationers in the probation program.  “The court does not direct how the funds are used[,]” and, other than asking the Salvation Army for more nutritious meals for probation program members, “no one from the [probation program] has requested to control in any particular manner how the funds have been spent.”  “There is also no continuing obligation between the trust and the [community center] beyond the year in which the funds are distributed; the decision where to distribute the trust’s funds has been and will be made anew each year.”

II.  Analysis

A judge is permitted to “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 . . . .”  Section 4C(3).  A judge may also be a “member of” or serve “in any other capacity as to” this type of organization.  Section 4C(3)(b).  Acting in any of those capacities, the judge “may make recommendations to public and private fund-granting organizations on projects and programs concerning the law, the legal system, and the administration of justice.”  Section 4C(3)(b)(ii).  The judge shall not, however, “participate in the management and investment of the organization’s funds, . . . assist such an organization in planning fund-raising, . . . personally participate in the solicitation of funds or other fund-raising activities, . . . personally participate in membership solicitation[,] . . . [or] use or permit the use of the prestige of judicial office for fund-raising or membership solicitation.”  Section 4C(3)(b)(i), (iii), (iv).

By its terms, the trust directs its yearly income disbursements towards “objects of public charity” in a specified community, preferably to those community members who, “‘without fault of their own[,] suffered reverses of fortune and are in need of assistance.’”  In furtherance of that objective, the trust named as its board members three members of the community in specific positions who would most likely be “‘in contact with objects of charity[:]’”  a pastor; a local charitable society president; and a judge.  The trust therefore falls within the type of organization described in Section 4C(3) as it is a civic and/or charitable organization that is not conducted for profit or for the advantage of its trustee or board members, and that is not and has not been engaged in adversary proceedings in your court.  See Section 4C(3)(a)(i), (ii); see also CJE Opinion 2004-6 , n.1 (noting that Committee has contrasted “the permitted participation in ‘civic’ organizations and prohibited participation in a ‘business’”); CJE Opinion 98-7 (“‘Civic has the ring of public service or public interest.”).

You are on the trust’s three-person board and thus serve the trust in some capacity, whether you are classified as an officer, director, non-legal advisor, or member of the trust.  See Section 4C(3)(b).  You do not participate in the management or investment of the trust’s assets, and the trust does not engage in membership solicitation or fund-raising.  See Section 4C(3)(b)(i), (iii), (iv).  As a board member of the trust, the Code permits you to “make recommendations to public and private fund-granting organizations on projects and programs concerning the law, the legal system, or the administration of justice . . . .”  Section 4C(3)(b)(ii).  The question, then, is whether your participation in the disbursement of the trust’s funds is consistent with this provision.

You and the other two individuals on the trust’s board decide how to disburse the trust’s yearly net income.  In 2013, you requested the distribution of one-third of the trust’s funds to the Salvation Army which operates the community center and directed the Salvation Army to use that money to fund the probation program’s participation in certain activities at the community center. The probation program concerns the law, the legal system, and the administration of justice as its goal is to contribute to the rehabilitation of significantly at-risk individuals on probation for serious offenses. See, e.g., CJE Opinion 2006-5 (concluding that Code permitted judge to support non-profit organization’s application for funding to operate program at judge’s court that assisted with the orderly administration of justice by, in part, providing “assistance to pro se litigants”). This disbursement to a program that provides services to probationers from your court is therefore consistent with Section 4C(3)(b)(ii). (4) See, e.g., CJE Opinion 2004-8 (concluding that Code permitted judge to serve as trustee for Massachusetts Bar Foundation, a role which included making grants to certain court-related activities).

Based on the manner in which the board has made its disbursement decisions in previous years, each board member votes to distribute an equal portion of the funds to a particular program of that board member’s choice. (5) The fact that the other two-thirds of the trust’s yearly income have not funded programs that concern the law, the legal system, or the administration of justice is not fatal to your participation in the trust.  The narrow language of Section 4C(3)(b)(ii), however, requires that you limit your participation in the annual disbursement of the trust’s funds to your “share” of the funds.  Not only must you continue to allocate that share to a program that concerns the law, the legal system, or the administration of justice, but you also must abstain from participating in the disbursement decisions of the other board members.  Any transmittal letter and other trust records, including the minutes of any board meetings, should reflect that you are aware of the disbursement as to the other portions of the trust’s funds, but that you have taken no part in the decision as to those disbursements.

Your involvement in the trust is also subject to the Code’s other provisions, including Canon 2 which requires judges to “avoid impropriety and the appearance of impropriety in all of [their] activities[,]” and Canon 4 which requires judges to conduct their “extrajudicial activities as to minimize the risk of conflict with judicial obligations[.]” (Capitalization omitted).  Further, you “shall not hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion, national origin, ethnicity, or sexual orientation.”  Section 2C.  Because you are a member of the board, you should assess the propriety of the other board members’ distribution requests in relation to your judicial obligations.  If their choices conflict with your obligations under the Code, you must not participate in that year’s disbursement.  Additionally, the minutes of any board meetings should reflect your abstention from consideration of the disbursement to any fund not properly qualifying under the Code.

III.  Conclusion  

The Code permits you to sit on the trust’s three-person board as it is a charitable and/or civic organization under Section 4C(3)(b).  Section 4C(3)(b)(ii) also permits you to recommend the disbursement of a portion of the trust’s yearly net income to a program that concerns the law, the legal system, or the administration of justice, such as your court’s probation program. The Code therefore permits you to direct a portion of the trust’s income to fund the probation program’s use of the Salvation Army’s community center. The Code does not permit you to participate in the distribution of funds to programs outside the scope of Section 4C(3)(b)(ii), and any transmittal letter and other trust records, including the minutes of any board meetings, must indicate your lack of involvement in those disbursement decisions.

Contact   for CJE Opinion No. 2014-3

(1) The Committee takes the facts set forth in this opinion from your original inquiry letter as well as from your e-mail response to additional questions from the Committee.

(2) The Salvation Army is a tax-exempt 501(c)(3) organization that “operates 7,546 centers in communities across the United States.”  Among the Salvation Army’s activities are “food distribution, disaster relief, rehabilitation centers, anti-human trafficking efforts, and a wealth of children’s programs” which the Salvation Army funds “through kettle donations, corporate contributions, and the sale of goods donated to . . . Salvation Army Family Stores.”  https://www.salvationarmyusa.org/usn/about (Last viewed June 19, 2014)

(3) In 2013, the church used its one-third of the trust’s funds for its pre-school and grade school programs, and the local charitable society used its one-third of the trust’s funds for a teen program.

(4) The Salvation Army should have used the 2013 funds for the probation program only.  It is not entirely clear from the factual information available to the Committee, however, that the Salvation Army used the entirety of funds in that way.

(5) The Committee bases its decision on the presumption that this procedure will continue going forward.

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