May a judge serve on the board of a community-action nonprofit that administers social-service programs?

Plain-English summary

The nonprofit administered community-action programs serving children, older people, and low-income residents. The judge sought an expedited opinion on joining its board but did not say whether the organization or beneficiaries were likely to come before the judge's court. Source: Opinion 98-05, pp. 1–2

The committee assumed no ordinary or frequent adversary appearances by the organization, programs, or beneficiaries and allowed board service on that basis. It said the answer would change if those appearances were likely. The opinion also pointed to Rule 21-500's limits on fundraising, time taken from judicial duties, and acting as the organization's legal adviser. Source: Opinion 98-05, pp. 2–3

In practice

The permission rests on the committee's stated assumption about court appearances and remains subject to the other Rule 21-500 conditions it identified. Source: Opinion 98-05, pp. 2–3

Common questions

Q: Did the committee know whether the nonprofit would appear in court?

A: No. It said the request lacked that information and expressly assumed such appearances would not ordinarily or frequently occur. Source: Opinion 98-05, p. 2

Q: Was the judge cleared to fundraise or provide legal advice for the board?

A: The committee separately flagged restrictions on fundraising and service as a legal adviser, without approving those activities. Source: Opinion 98-05, p. 3

Background and rules framework

The committee applied then-current New Mexico Code of Judicial Conduct Canon 21-500(C) on charitable board service and likely proceedings before the judge's court. Source: Opinion 98-05, pp. 1–3

Citations and references

• New Mexico Code of Judicial Conduct Canon 21-500(C). Source: Opinion 98-05, pp. 1–3
• New Mexico Judicial Advisory Opinions 95-02 and 88-7; Ohio Judicial Advisory Opinion 90-16. Source: Opinion 98-05, pp. 2–3

See also

• NM Judicial Op. 99-02: Advocacy Board
• NM Judicial Op. 02-06: Civic Boards

Source

• Landing page: New Mexico judicial advisory opinions
• Original PDF: Judicial Advisory Opinion 98-05

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Advisory Committee on the Code of Judicial Conduct

Hon. Frank H. Allen. Jr. Chairman
Hon. Thomas A. Donnelly
Prof. William T. MacPhearson. Jr.
September 17, 1998
Hon. Marie A. Baca

Re: Judicial Advisory Opinion 98-05

Dear Judge

You have requested an advisory opinion from this Committee concerning whether you can serve as a board
member for the NM Community Action Corporation . You have been newly appointed
as
. Based on your letter, we assume that your board responsibilities would include
administering
various programs.

You have indicated that the
is a charitable, nonprofit organization governed by a volunteer
board of directors.
administers community action programs providing services to children,
senior citizens, and low income individuals. currently operates in and
Counties.
receives funding from federal, state, and local sources and has 250 employees.
The board administers the following programs: Head Start, Child Adult Care Food Program, Senior Citizens Meal Program, Foster Grandparents, Senior Companions, Community Service Block Grant, FEMA, Summer Feeding, Head Start Food Program, Temporary Emergency Food Assistance Program, Low Income Home Energy Assistance Program and an Emergency Relief Program.

We direct your attention to the following provisions of Canon 21-500(C) of the Code of Judicial Conduct:
Judge
September 17, 1998
Page 2

C. Governmental, civic or charitable activities.

…

(3) A judge may serve as an officer, director, trustee or non- legal advisor of ... [a] charitable …organization not conducted for profit, subject to the following limitations and other requirements of this Code:

(a) A judge shall not serve as an officer, director, trustee or non-legal advisor if it is likely that the organization:

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

(ii) will be engaged frequently 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.

The
a charitable, nonprofit organization. You have not indicated whether it is likely that the
would ordinarily appear before you, or frequently in adversary proceedings before the Court or any court subject to the appellate jurisdiction of the Court. In New Mexico Judicial Advisory Committee Opinion 95-02, we permitted a metropolitan judge to serve as a board member for a civic, nonprofit organization which provides psychological and emotional support for crime victims. The Opinion recognized that although the organization’s volunteers often testify in felony case in District Court, these matters were not within the jurisdiction of the metropolitan court except in the rare case of preliminary hearing in a felony case.

Similarly, in Ohio Judicial Advisory Opinion 90-16, the committee determined that a judge may serve as a trustee of a charitable, nonprofit foundation provided that it did not conflict with the judge's official duties. We assume for purposes of your expedited request that the its programs or individuals receiving its benefits would not ordinarily appear before you, or frequently in adversary proceedings before the Court, or any court subject to the appellate jurisdiction of the Court.

If, however, it is likely that the
its programs or the individuals receiving such benefits will
engage in proceedings that would ordinarily appear before you, or frequently in adversary proceedings
before the
Court or in any court subject to the appellate jurisdiction of the
court, you may not serve on the
board.
Judge
September 17, 1998
Page 3

In New Mexico Judicial Advisory Opinion 88-7, we explained that it would be inappropriate for a judge to serve as president on the board of directors of a charitable organization sheltering victims of domestic violence because "those served by the charity in question are victims of violence, they are quite likely to appear before a court, possibly" the judge's own. The Opinion determined that this would be contrary to Canon 21-500(C).

You have not explicitly indicated your responsibilities a board member. However, we call your attention to the limitations on fund raising in Canon 21-500(C)(3)(b). Further, see the comments in Paragraph C(2) discussing the use of judicial time and Paragraph (C)(3) prohibiting a judge from serving as a legal advisor to a civic or charitable organization.

It is our opinion, therefore, that serving as a board member for the
charitable, nonprofit organization is not prohibited by the Code of Judicial Conduct subject to the requirements of Canon 21- 500.

Respectfully yours.

Thomas A. Donnelly
Member, Judicial AdvisoryCommittee