Can a municipal judge sit on the board of a nonprofit that contracts with the city to provide services to the judge's own court?

Ohio BPC Opinion 91-011: Judge Serving on the Board of a Nonprofit That Contracts With the Court

Short answer: The opinion concluded that a municipal judge may not serve as a member or officer of the board of a nonprofit corporation that provides services to the municipal court by contract with the city.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the Ohio Board of Professional Conduct's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.

View original opinion

Plain-English summary

The Board addressed whether a municipal judge could serve on the board of a nonprofit corporation that contracted with the city to provide a community re-entry detention program (in-home monitoring, community service, treatment, and job placement) as an alternative to incarceration, with the program staff receiving court referrals and making joint decisions with the court. The opinion assumed, without deciding, that the city had authority to enter the contract.

Applying Ohio Ethics Law (R.C. Chapter 102 and related statutes), the Board focused on R.C. 2921.42(A)(4), which prohibits a public official from having an interest in the profits or benefits of a public contract entered into by the political subdivision with which he is connected. Relying on Ohio Ethics Commission opinions holding that board members of a nonprofit have an "interest" in its contracts, and that the exception for officials formally designated to represent a governmental entity (Op. 84-001) did not fit these facts, the Board concluded the judge would have a prohibited interest and is precluded from serving. The opinion also concluded that Canon 5 and Canon 2 of the Judicial Code bar the service: under Canon 5 B(1) a judge should not serve an organization that will be engaged in proceedings before him, under Canon 5 B(2) the judge would have to disqualify himself from cases affecting the organization (creating great inconvenience), and under Canon 2 the arrangement creates an appearance of impropriety, particularly regarding sentencing. The Board noted that pursuant to R.C. 102.08 the requester may reasonably rely on the opinion as it applies to Ohio Ethics Law.

Currency note

The Board's status list flags this opinion as Withdrawn by Opinion 2021-01 on February 12, 2021, and as Not Current due to subsequent rule amendments to Canons 1 through 6 of the Ohio Code of Judicial Conduct, effective May 1, 1997. This opinion issued in 1991 under the former Ohio Code of Judicial Conduct (superseded by the Ohio Code of Judicial Conduct effective March 1, 2009). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current Ohio Code of Judicial Conduct and Ohio Ethics Law before relying on any specific rule mentioned here.

Common questions

Q: Can a judge sit on the board of a nonprofit that contracts with his court?

A: Under this opinion, no. The Board concluded that Ohio Ethics Law and the Code of Judicial Conduct prohibit a municipal judge from serving as a member or officer of such a board.

Q: Why is board service treated as a prohibited interest?

A: The opinion relied on R.C. 2921.42(A)(4) and Ohio Ethics Commission opinions holding that a nonprofit's board members have an "interest" in its contracts, and found the governmental-designee exception did not fit the facts.

Q: What judicial-conduct problems did the Board identify?

A: The opinion concluded that under Canon 5 B(1) a judge should not serve an organization engaged in proceedings before him, under Canon 5 B(2) he would have to disqualify himself from cases affecting it, and under Canon 2 the arrangement creates an appearance of impropriety regarding sentencing.

Background and rules framework

The opinion interprets the former Ohio Code of Judicial Conduct Canon 2 (appearance of impropriety, including Canon 2 B) and Canon 5 B(1) and (2) (civic and charitable activities and related disqualification), together with Ohio Ethics Law, R.C. Chapter 102 (including 102.03(D) and 102.08) and R.C. 2921.42 and 2921.43.

Citations and references

Rules of Judicial Conduct (Ohio, former):

• Canon 2 (and Canon 2 B), appearance of impropriety
• Canon 5 B(1) and (2), civic and charitable activities; disqualification

Statutes:

• R.C. Chapter 102 (including 102.03(D), 102.08), Ohio Ethics Law
• R.C. 2921.42 (including (A)(1) and (A)(4)) and 2921.43, interest in public contracts

Other opinions cited:

• Ohio Ethics Comm'n, Ops. 81-003, 81-005, 81-008 (1981), 84-001 (1984): interest in nonprofit contracts and the governmental-designee exception
• Ohio Board, Ops. 87-3 (1987), 89-3 (1989), 90-16 (1990): judges serving on boards of colleges and foundations

See also

• Ohio BPC Op. 1987-003: Judge Foundation Board Membership
• Ohio BPC Op. 1987-013: Judge on a Governmental Task Force (Canon 5G)
• Ohio BPC Op. 1987-050: Judge as Trustee of a Religious Retirement Plan

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-91-011.pdf

Original opinion text

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

The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 3370, COLUMBUS, OH 43215-6105
(614) 644-5800 FAX: (614) 644-5804

OFFICE OF SECRETARY

OPINION 91-11
Issued April 12, 1991
Withdrawn by Adv. Op. 2021-01

[Former CJC Opinion-provides advice under the former Ohio Code of Judicial Conduct which is superseded by the Ohio Code of Judicial Conduct, eff. 3/1/2009.]

[Not Current- subsequent rule amendments to Canons 1 through 6, Ohio Code of Judicial Conduct, eff. May 1, 1997.]

SYLLABUS: The Code of Judicial Conduct, Ohio Ethics Law (Chapter 102. of the Revised Code) and related statutes (Section 2921.42 and 2921.43 of the Revised Code) prohibit a municipal judge from serving as a member or officer of the Board of Directors of a nonprofit corporation providing services to the municipal court by contract with the city.

OPINION: We have before us a request for an advisory opinion on whether the Code of Judicial Conduct, Ohio Ethics Law and related statutes prohibit a municipal judge from serving as a member or officer of the Board of Directors of a nonprofit corporation providing services to the municipal court by contract with the city.

The nonprofit corporation provides contractural services to the court through a community re-entry detention program for individuals who have violated municipal ordinances. The program promotes community service assignments as an alternative to incarceration and provides rehabilitation to reduce recidivism. The contractural services include in-home detention with bracelet or phone monitoring of each participant, community service assignments, drug/alcohol-treatment services, and educational, vocational and job training placement assistance. The program staff would receive referrals from the court, the workhouse and the probation office, do home assessments and make joint decisions with the court as to the participants.

The city would fund the program through a grant to the nonprofit corporation. The nonprofit corporation would use the funds from the grant to pay program expenses. Costs of the program to the city would be based on per diem rates for a specified number of participants. The city could receive volume fee reductions in the per diem for agreeing to fund more participants. The contract would specify the dollar amount of the grant and that would determine the number of program participants.

This Board has statutory authority to render advisory opinions with regard to questions concerning ethics, conflicts of interest, and financial disclosure for judicial officers and candidates for judicial office. OH. REV. CODE ANN §§ 102.08 and 102.01 (F) (2). However, the question of whether the city has authority to enter into a contract is not one this Board can answer. For purposes of this opinion, the Board will assume the city may enter the contract.

Ohio Ethics Law is set forth in Ohio Revised Code Chapter 102 and related statutes Sections 2921.42 and 2921.43. Judges are considered public officials for purposes of applying the ethics laws. OH REV CODE ANN §§ 102.01 (B) and 2921.01 (A). Section 102.03 (D) prohibits a public official from using or authorizing the use of the authority or influence of his office or employment to secure anything of value or the promise or offer of anything of value that is of such a character as to manifest a substantial and improper influence upon him with respect to his duties. Section 2921.42 (A) (1) prohibits a public official from knowingly authorizing or employing the authority or influence of his office to secure the authorization of any public contract in which he has an interest. These provisions will not be addressed further since the facts presented do not suggest that the judges would receive compensation or anything of value from the nonprofit corporation. Nor do the facts suggest that the judges would authorize or employ their authority or influence to secure the authorization of the contract between the city and the nonprofit corporation.

The pertinent ethics statute is Section 2921.42 (A) (4), prohibiting a public official from knowingly having an interest in the profits or benefits of a public contract entered into by or for the use of the political subdivision or governmental agency or instrumentality with which he is connected. In enacting Section 2921.42, the legislature realized that a dual interest of a public official could create a risk that private considerations might detract from serving public interests. Ohio Ethics Comm'n, Op. 81-008 (1981).

The Ohio Ethics Commission has opined that officers or board members of a nonprofit corporation have an "interest" in the contracts of the corporation. Ohio Ethics Comm'n, Op. 81-005 (1981), Op. 81-008 (1981). For example, according to the commission, Section 2921.42 of the Revised Code prohibits a city council member from serving on the board of a non-profit corporation that contracts to sell goods or services to the city. Ohio Ethics Comm'n, Op. 81-008 (1981). An interest may be either pecuniary or fiduciary. Ohio Ethics Comm'n, Op.81-003 (1981), Op. 81-008 (1981).

However, the Ohio Ethics Commission has also expressed the opinion that public officials may serve on nonprofit corporations contracting with a city provided that the following criteria apply: 1) the governmental entity must create or be a participant in the non-profit corporation; 2) any public official or employee connected with the jurisdiction, including a council member, may be designated to serve on the non-profit corporation, but the elected legislative authority or the appointed governing body must formally designate the office or position to represent the governmental entity; 3) the public official or employee must be formally instructed to represent, the governmental entity and its interests; and 4) there must be no other conflict of interest on the part of the designated representative. Ohio Ethics Comm'n, Op. 84-001 (1984).

According to the commission, "[t]he official designation by a sovereign governmental entity, requiring that a council member serve on the board of the non-profit community development corporation in his official capacity, is sufficient to demonstrate that the public official does not have a prohibited personal interest in the public contract." Id. Based on the above analysis, the commission advised that Ohio Ethics Law and related statutes do not prohibit a city fire chief or other city official or employee from serving on the board of a nonprofit corporation created by the city and other jurisdictions to provide contract paramedic services, provided that he is serving in his official capacity as designated by city council, and that no other conflict of interest exists. Id. However, the criteria set forth by the Ethics Commission in Op. 84-001 (1984) allowing for public officials to serve on non-profit corporations contracting with the city is not met by the facts addressed in this opinion.

The court's involvement with the community re-entry detention program would require the judge to decide whether a defendant found guilty of violating a municipal ordinance would be incarcerated or given an opportunity to participate in the program. 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. No matter how forthright the judge, the obvious concern is that a convicted defendant might question whether competing interests of the judge influenced his sentence. Also, 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. Finally, the judge in his fiduciary role as a Board member or officer, would be making decisions regarding costs to the city for services provided by the program. Further, conflicts could occur if the contract included provisions regarding joint hiring of a probation officer or hiring requirements based on increased numbers of participants in the program.

In accord with the above interpretations of Ohio Ethics Law and related statutes by the Ohio Ethics Commission, this Board is of the opinion that a judge who serves as a member or officer of the Board of a nonprofit corporation that contracts with the city to provide services to the court, has an interest in a contract between the corporation and the city and thus is, precluded by Ohio Revised Code Section 2921.42 (A) (4) from serving on the Board.

It is also the opinion of this Board that Canon 5 and Canon 2 of the Code of Judicial Conduct (Judicial Code) would prohibit a judge from serving as an officer or member of the nonprofit corporation that contracts with the city to provide services to the court. Canon 5 B (1) and (2) are set forth below.

B. Civic and Charitable Activities. A judge may participate in civic and charitable activities that do not reflect adversely upon his impartiality or interfere with the performance of his judicial duties. A judge may serve as an officer, director, trustee, or non-legal advisor 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:

1. A judge should not serve if it is likely that the organization will be engaged in proceedings that would ordinarily come before him or will be regularly engaged in adversary proceedings in any court.

2. A judge should disqualify himself in any case in which the decision could affect any organization which he serves as either an officer or member of the board.

Code of Judicial Conduct Canon 5 B (1) (2).

This Board has previously expressed the opinion that under the Judicial Code, a judge is not prohibited from serving on the Board of Trustees of a college, Ohio Sup.Ct., Op. 89-3 (1989), nor from being a trustee of a nonprofit foundation, Ohio Sup.Ct., Op 87-3 (1987), Op. 90-16 (1990). However, these opinions do not address the issue of whether a judge is prohibited from serving as a member or officer of a nonprofit corporation that contracts with the city to provide services to the court.

Based on the facts presented, the nonprofit corporation through its community reentry detention program, will frequently be involved with the municipal court. For example, the program staff consults with the court, the probation officers and the workhouse, and makes decisions regarding whether convicted defendants will enter the program as an alternative to incarceration. However, under Canon 5 B (1), the judge should not serve on such an organization that would be engaged in proceedings that would come before him. Further, the judge would be making sentencing decisions that would affect the nonprofit corporation on which he serves as a member or officer of the Board. Therefore, by the language of Canon 5 B (2), the judge should disqualify himself from cases in which a decision would be made regarding entry into the program. Disqualification in every case of this nature, would create a great inconvenience to the court.

Finally, under the broad mandate of Canon 2 of the Judicial Code, a judge should avoid impropriety and the appearance of impropriety. Canon 2 B specifically contains a prohibition against a judge allowing family, social or other relationships to influence his judicial conduct or judgment. Serving on the Board of a corporation that contracts with the city to provide services to the court on which the judge sits creates an appearance of impropriety. It also raises questions as to whether the judge's relationship to the nonprofit corporation would influence his judicial conduct or judgment, particularly with regard to sentencing.

In conclusion, it is the Board's opinion that the Code of Judicial Conduct, Ohio Ethics Law and related statutes prohibit a judge from serving as a member or officer of a nonprofit corporation contracting with the city to provide services to the municipal court by contract with the city.

This is an informal, non-binding advisory opinion, based upon the facts presented and limited to questions arising under the Code of Judicial Conduct, Ohio Ethics Law and related statutes. However, pursuant to Section 102.08 of the Ohio Revised Code, the requester may reasonably rely on the opinion as it applies to Ohio Ethics Law and related statutes.