JUDICIAL ETHICS OPINION 2023 v. << (2023)

¶1 FACTS:

An Oklahoma public high school has been designated as a “Law and Public Safety” Academy in order to promote educational awareness and interest in areas of law and public safety to high school students, as well as to provide opportunities to high school students within the various fields of law and public safety through work-based learning experiences and networking with professionals in these fields. The Academy is composed of board members consisting of leaders from the various fields from law and public safety (such as police officers, firefighters, lawyers, etc.) in order to assist in the aims of the academy. A judge has been asked to serve on this board. The board is advisory only and has no governing control over the high school.

¶2 QUESTION:

Is it permissible and/or appropriate for a judge to participate and serve on the board?

¶3 ADVISORY ANSWER TO QUESTION:

Yes, with some limitations.

¶4 AUTHORITIES:

All citations are from the Code of Judicial Conduct, Title 5, Oklahoma Statutes, Chapter 1, App.4.

Canon 1: A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.

RULE 1.2

Promoting Confidence in the Judiciary

A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and avoid impropriety and the appearance of impropriety.

Comment:

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[6] A judge is permitted and encouraged to initiate and participate in community outreach activities for the purpose of promoting public understanding of and confidence in the administration of justice. In conducting such activities, the judge must act in a manner consistent with this Code. (Emphasis added).

Canon 3: A Judge Shall Conduct the Judge's Personal and Extrajudicial Activities to Minimize the Risk of Conflict with the Obligations of Judicial Office

RULE 3.4

Appointments to Governmental Positions

A judge shall not accept appointment to a governmental committee, board, commission, or other governmental position, unless it is one that concerns the law, the legal system, or the administration of justice, or the judge has the specific approval of the Supreme Court.

COMMENT

[1] Rule 3.4 implicitly acknowledges the value of judges accepting appointments to entities that concern the law, the legal system, or the administration of justice. Even in such instances, however, a judge should assess the appropriateness of accepting an appointment, paying particular attention to the subject matter of the appointment and the availability and allocation of judicial resources, including the judge's time commitments, and giving due regard to the requirements of the independence and impartiality of the judiciary.

RULE 3.7

Participation in Educational, Religious, Charitable, Fraternal, or Civic Organizations and Activities

(A) Subject to the requirements of Rule 3.1, a judge may participate in activities sponsored by organizations or governmental entities concerned with the law, the legal system, or the administration of justice, and those sponsored by or on behalf of educational, religious, charitable, fraternal, or civic organizations not conducted for profit, including but not limited to the following activities:

(1) assisting such an organization or entity in planning related to fund-raising, and participating in the management and investment of the organization's or entity's funds;

(2) soliciting contributions for such an organization or entity, but only from members of the judge's family, members of the judge's household or from judges over whom the judge does not exercise supervisory or appellate authority;

(3) soliciting membership for such an organization or entity, even though the membership dues or fees generated may be used to support the objectives of the organization or entity, but only if the organization or entity is concerned with the law, the legal system, or the administration of justice;

(4) appearing or speaking at, receiving an award or other recognition at, being featured on the program of, and permitting his or her title to be used in connection with an event of such an organization or entity, but if the event serves a fund-raising purpose, the judge may participate only if the event concerns the law, the legal system, or the administration of justice;

(5) making recommendations to such a public or private fund-granting organization or entity in connection with its programs and activities, but only if the organization or entity is concerned with the law, the legal system, or the administration of justice; and

(6) serving as an officer, director, trustee, or nonlegal advisor of such an organization or entity, unless it is likely that the organization or entity:

(a) will be engaged in proceedings that would ordinarily come before the judge; or

(b) will frequently be engaged in adversary proceedings in the court of which the judge is a member, or in any court subject to the appellate jurisdiction of the court of which the judge is a member.

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(C) Subject to the requirements of Rule 3.1 and Rule 3.7(A) and (B), a judge may:

(1) Provide leadership in:

(a) Identifying and addressing issues involving providing equal access to the justice system;

(b) Developing public education programs;

(c) Engaging in community outreach activities to promote the fair administration of justice; and

(d) Convening, participating or assisting in advisory committees and community collaborations devoted to the improvement of the law, the legal system, the provision of services and/or the administration of justice.

(2) A judge may endorse projects and programs directly related to the law, the legal system, the provision of services and/or the administration of justice.

(3) A judge may participate in programs concerning the law or which promote the administration of justice.

COMMENT

[1] The activities permitted by paragraph (A) generally include those sponsored by or undertaken on behalf of public or private not-for-profit educational institutions, and other not-for-profit organizations, including law-related, charitable, and other organizations.

[2] Even for law-related organizations, a judge should consider whether the membership and purposes of the organization, or the nature of the judge's participation in or association with the organization, would conflict with the judge's obligation to refrain from activities that reflect adversely upon a judge's independence, integrity, and impartiality.

[3] Mere attendance at an event, whether or not the event serves a fund-raising purpose, does not constitute a violation of paragraph 4(A). It is also generally permissible for a judge to serve as an usher or a food server or preparer, or to perform similar functions, at fund-raising events sponsored by educational, religious, charitable, fraternal, or civic organizations. Such activities are not solicitation and do not present an element of coercion or abuse the prestige of judicial office.

[4] Identification of a judge's position in educational, religious, charitable, fraternal, or civic organizations on letterhead used for fund-raising or membership solicitation does not violate this Rule. The letterhead may list the judge's title or judicial office if comparable designations are used for other persons.

¶5 DISCUSSION

As indicated in Comment 6 to Rule 1.2 quoted above, a judge is encouraged to participate in community outreach activities such as those outlined in the question presented by the judge. Nothing in Rule 3.4 cited above prevents this service because the “board” upon which the judge would serve is an advisory one and is therefore not a “governmental” position by any ordinary understanding of that phrase. However, in making the decision whether to accept a position on this board, the judge should make the assessment encouraged by Comment 1 to Rule 3.4,

paying particular attention to the subject matter of the appointment and the availability and allocation of judicial resources, including the judge's time commitments, and giving due regard to the requirements of the independence and impartiality of the judiciary.

Although Rule 3.7 provides an extensive identification of activities in which the judge may participate for the educational organization, the judge should closely examine the rule to observe the limitations on some. In addition, the judge should take seriously the admonition contained in Comment 2 to Rule 3,7 and

consider whether the membership and purposes of the organization, or the nature of the judge's participation in or association with the organization, would conflict with the judge's obligation to refrain from activities that reflect adversely upon a judge's independence, integrity, and impartiality.

With those limitations, the panel advises that the judge may serve on the advisory board of this “Law and Public Safety Academy.”

Honorable William C. Hetherington, Chair

Honorable Glenn D. Adams

Honorable Allen McCall

Honorable Patricia G. Parrish

Honorable April Sellers White

ALL PANEL MEMBERS CONCUR