May a juvenile referee serve on the board of a nonprofit drug testing laboratory serving West Virginia treatment courts?
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This page answers the general question as of 2009. Ask about yours and see what the current rules of professional conduct in your state say for your facts, with citations.
Plain-English summary
A juvenile referee asked about board service for a nonprofit drug testing laboratory that served adult drug courts and others, though not the referee’s juvenile drug court. The referee would avoid fundraising and the laboratory was willing to avoid serving that court. The request also asked about service by a court administrator.
The Commission concluded that the referee should not serve on the board under former Canons 6 and 4C. It also felt that the Administrative Director should not serve because an appearance of impropriety could result. A minority thought the Court should address that second issue.
In practice
The opinion expressly addresses the referee’s proposed board role and gives separate, qualified advice about the Administrative Director.
Common questions
Q: Could the referee join the board if the lab did not serve the referee’s court?
A: No. The Commission advised against board membership on the stated facts.
Q: Could the court administrator serve?
A: The Commission felt the Administrative Director should not serve because of an appearance of impropriety; a minority thought the Court should decide.
Q: Which former Code provisions were discussed?
A: Canon 6 treated a juvenile referee as a continuing part-time judge, and Canon 4C governed civic and charitable service.
Background and rules framework
Former Canon 6 classified the juvenile referee as a continuing part-time judge subject to Canon 4C. Former Canon 4C(3)(a) restricted service where an organization was likely to be engaged in proceedings ordinarily before the judge or regularly in adversary proceedings in any court.
Citations and references
West Virginia Code of Judicial Conduct (former): Canons 4C(3)(a) and 6.
See also
Source
- Landing page: West Virginia Judicial Investigation Commission advisory opinions
- Original PDF: JIC Advisory Opinion 2009-04, redacted
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.
JUDICIAL INVESTIGATION COMMISSION
Post Office Box 1629
Charleston, West Virginia 25326-1629
(304) 558-0169 * FAX (304) 558-0831
February 12, 2009
Re: JIC Advisory Opinion 2009-04
Dear
The Judicial Investigation Commission has recently received a request for an advisory opinion. The request covers two issues. You asked whether a juvenile referee who is acting in the capacity as a juvenile drug court judge can be a member of the board of directors for a nonprofit charitable corporation whose purpose is to operate a drug testing laboratory for the benefit of drug and other treatment courts across the State of West Virginia. The nonprofit drug testing laboratory will provide drug testing for adult drug courts in West Virginia and various outside agencies and businesses but is not currently providing testing services to the juvenile drug court in which the referee presides and is willing not to do so if necessary during the referee’s tenure as a member of the board of directors. You stated that juvenile cases before the referee would not pertain to the operations of the nonprofit charitable corporation. The juvenile referee would neither engage in solicitation of funds nor use or permit the use of his judicial office for fund-raising purposes by the nonprofit charitable corporation.
The second issue which you raise asks whether a court employee who is not a judicial officer such as, a court administrator, may serve on the board of directors of such nonprofit charitable corporations.
To address the issues which you have raised, the Commission has reviewed Canon 4 and Canon 6 of the Code of Judicial Conduct. Canon 6 states:
Canon 6. Application of the Code of Judicial Conduct.
A. Anyone, whether or not a lawyer, who is an officer of a judicial system and who performs judicial functions, including but not limited to Justices of the Supreme Court of Appeals, Circuit Judges, Family Law Masters, Magistrates, Mental Hygiene Commissioners, Juvenile Referees, Special Commissioners and Special Masters, is a judge within the meaning of the code. All judges shall comply with this Code except as provided below. . . -
February 12, 2009
Page Two
Under Canon 6 a Juvenile Referee is defined as a continuing part-time judge. While a continuing part-time judge is not required to comply with various provisions of the Code of Judicial Conduct that are set forth more fully in Canon 6C, a juvenile referee is required to comply with Canon 4C,
Canon 4C states in relevant part:
Canon 4. A judge shall so conduct the judge’s extra-judicial activities as to minimize the risk of conflict with judicial obligations.
C, Governmental, civic, or charitable activities.
(3) Civic and charitable activities. A judge may participate in civic and charitable activities that do not reflect adversely upon the judge’s impartiality or interfere with the performance of the judge’s judicial duties. A judge may serve as an officer, director, trustee, or non-legal adviser of an educational, religious, charitable, fraternal, or civic organization not conducted for the economic or political advantage of its members subject to the following limitations:
(a) A judge should not serve if it is likely that the organization will be engaged in proceedings that would ordinarily come before the judge or will be regularly engaged in adversary proceedings in any court.
Based upon the language contained in these relevant parts of the Code of Judicial Conduct, it is the opinion of the Commission that a juvenile referee should not be a member of the board of directors for a nonprofit charitable corporation whose purpose is to operate a drug testing laboratory for the benefit of drug and other treatment courts across the State of West Virginia.
On the second issue as to whether the Court Administrator may serve on the board of directors for such a nonprofit charitable corporation, the Commission feels that the Administrative Director should not serve since an appearance of impropriety could be created. A minority of the members felt the Court should address that issue.
February 12, 2009
Page Three
It is hoped that this opinion fully addresses the questions which you have raised. If there is any further question regarding this matter do not hesitate to contact the Commission,
Very truly yours,
[signature]
Fred L. Fox, fi, Chairperson
Judicial Investigation Commission
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