Exploring the limitations of a judge sitting on an organization’s board of directors
By Marcus Alan McGhee, Staff Attorney | Indiana Commission on Judicial Qualifications
Judges serving as members of a for-profit organization’s leadership has been problematic since Kenesaw Mountain Landis-the U.S. District Court Judge who was also Major League Baseball’s first Commissioner. The concern, then as it is now, is that judges with split employment loyalties create the appearance of not giving precedence to their judicial duties and of allowing pecuniary or other interest to influence their judgment. See e.g. Indiana Code of Judicial Conduct Rules 2.1 and 2.4.
The conversation shifts, however, when the board the judge seeks to join is a non-profit or legal-aid organization that provides services to the court. The question then becomes whether it is permissible for a judge-who will ultimately determine eligibility, order, and supervise services-to also guide the day-to-day operations of those service providers.
Rule 3.7(A)(6) of the Indiana Code of Judicial Conduct states that “a judge may be a member, or serve as an officer, director, trustee, or nonlegal advisor of an . . . educational, religious, charitable, cultural, fraternal, or civic organization not conducted for profit,” subject to certain limitations. Those limitations are primarily articulated in Rule 3.1, which prohibit a judge from participating in an activity that would interfere with his or her duties, lead to frequent disqualification, or undermine the judge’s independence, integrity, or impartiality.
Judicial officers supervising problem-solving courts are often asked to serve on the board of directors for transition homes or other treatment-focused programs in their court. Judicial discipline advisory opinions, however, have cautioned that it is unwise for a judge to be on a board of an organization that provides court-ordered services.
A New York advisory opinion reasoned that membership on the board of such an organization places a judge in a dual position as a fiduciary acting on behalf of the organization and as a judge dealing with the organization in the courtroom. See New York Advisory Committee on Judicial Ethics 99-130.
An Ohio advisory opinion posited that as a member or officer of the board, the judge might feel real, imagined, or even subconscious pressure to refer as many participants as possible to the program in order to ensure its success. See Ohio Advisory Opinion 91-11. This same opinion held that no matter how forthright the judge, the concern is that a convicted defendant might question whether competing interests of the judge influenced his or her sentence. Id. The public might lose faith in the justice system if it believes a defendant might receive a different or more lenient sentence because of a judge’s personal interest. Id. The judge, in his or her fiduciary role as a board member or officer, may additionally be making decisions regarding costs to the city for services provided by the program. Id.
The Arkansas Supreme Court disciplined a judge for, amongst other things, comingling his non-profit organization, which was a probation-style program, with the probation options in his courtroom. See Judicial Discipline and Disability Commission v. Proctor (Arkansas Supreme Court January 25, 2010). The court held that the judge’s active role in the organization’s leadership, fundraising efforts, and the ex parte conversations he would have with the probationers about their cases at these fundraisers, at the very least created the appearance of impropriety.
What if there are other programs, besides the one on which the judge serves on the board of directors, available to a defendant? If the defendant makes the choice out of multiple options, wouldn’t that absolve the judge of any wrongdoing? This, too, has been viewed as unacceptable. The judge makes the initial determination that the service (i.e. rehabilitation, probation monitoring, etc.) is necessary. This creates the possibility of a placement at, and payments to, the organization even though the specific choice is made by the defendant or a government agency. See generally New York Advisory Committee on Judicial Ethics Opinion 07-2.
To determine the appropriateness of a request to be a member for an organization’s Board of Directors you should consider the following questions:
- Will I be required to commit more time to the board position than my judicial position?
- Does the agency, its attorneys, or its participants frequently appear before me in court?
- Is the board responsible for the day-to-day operation of the organization?
If the answer to any of these questions is yes, then the better course of action would be to decline membership. Although rejecting an invitation from these noble and praiseworthy organizations is disheartening, a judge’s relationship with the organization may cause a perception that its affiliates will be afforded greater weight because of the judge’s connection.