Can a judge ask local businesses to donate items used as rewards for defendants in a mental health court?

Currency note

The Board withdrew this opinion on February 3, 2023 in Advisory Opinion 2023-01; it is retained here for research only and is not current guidance. The opinion was issued in 2004 under the former Ohio Code of Judicial Conduct, which the Board flagged as superseded by the Ohio Code of Judicial Conduct effective March 1, 2009. The fundraising and impropriety provisions discussed here have been renumbered and revised in the current Code. Treat this page as historical context. Verify against the current Ohio Code of Judicial Conduct and the superseding opinion before relying on any specific rule mentioned here.

Plain-English summary

The Board addressed a municipal court that had instituted a mental health court and wanted to obtain small items from local businesses to use as program rewards and incentives for defendants. The question was whether the judge could prepare and sign a letter asking local businesses to donate those items, and whether the judge could direct a court employee to solicit the donations.

Applying Canon 1, Canon 2, and Canon 3(C)(1) of the former Ohio Code of Judicial Conduct, the Board concluded that the judge may not do either. The use of the judicial office and of judicial employees to solicit donations from local businesses for defendants in a mental health court program is improper.

Common questions

Q: Can a judge sign a letter asking businesses to donate reward items for a treatment court?

A: No. The opinion concluded that under Canon 1, 2, and 3(C)(1) a judge may not prepare and sign such a letter. The Board withdrew the opinion in 2023.

Q: Can the judge have a court employee solicit the donations instead?

A: No. Per the opinion, the judge may not direct a court employee to solicit the donations; using the office and employees for that solicitation is improper.

Background and rules framework

The opinion applies the former Ohio Code of Judicial Conduct Canon 1 (upholding the integrity and independence of the judiciary), Canon 2 (avoiding impropriety and its appearance), and Canon 3(C)(1) (administrative responsibilities and use of court staff). These provisions are addressed, renumbered and revised, in the current Code. The Board withdrew the opinion in Adv. Op. 2023-01.

Citations and references

Rules of Judicial Conduct:

• Former Ohio Code of Judicial Conduct Canon 1, Canon 2, Canon 3(C)(1)

See also

• Ohio BPC Op. 2004-005: A Judge Declining a Donation of Firearms to the Court for Security
• Ohio BPC Op. 2004-006: A Judge Establishing a Court Arts Committee and Accepting Donated Artwork
• Ohio BPC Op. 1987-009: Retired Judge on a Fund-Raising Restoration Committee

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-04-013.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
65 SOUTH FRONT STREET, 5TH FLOOR, COLUMBUS, OH 43215-3431
(614) 387-9370 (888) 664-8345 FAX: (614) 387-9379
www.sconet.state.oh.us

                                       OFFICE OF SECRETARY
                                OPINION 2004-13
                              Issued December 3, 2004

[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.]

SYLLABUS: Under Canon 1, 2, and 3(C)(1) of the Ohio Code of Judicial
Conduct, a municipal court judge may not prepare and sign a letter requesting
local businesses to donate small items for use as program rewards and incentives
for defendants in the mental health court and the judge may not direct a court
employee to solicit such donations. Use of the judicial office and judicial
employees to solicit donations from local businesses for defendants in mental
health court programs is improper.

OPINION: A municipal court recently instituted a mental health court and the
municipal court judge wants to use small items, such as umbrellas, gloves, hats,
and gift certificates, as program rewards and incentives for defendants. The
judge inquires regarding the propriety of preparing and signing a letter
requesting donations and directing a court employee to solicit small item
donations from local businesses.

   May a municipal court judge prepare and sign a letter requesting
   local businesses to donate small items for use as program rewards
   and incentives for defendants in the mental health court and may
   the judge direct a court employee to solicit such donations?

Both the Ohio Code of Judicial Conduct and Ohio Ethics Law are pertinent to the
Board’s consideration of whether a judge may solicit and accept donations on
behalf of a court.

Ohio Code of Judicial Conduct

Canon 2(C)(5) of the Ohio Code of Judicial Conduct restricts gifts to judges, but
that rule is not applicable herein. The small items given by local businesses are
not gifts for personal use by the judge or court employees. The donated items are
for use as rewards and incentives for defendants participating in the mental
health court.

Amended Canon 2(B)(2), effective October 1, 2004, also is not applicable to the
question raised. Canon 2(B) governs a judge’s membership and fundraising

Op. 2004-13 2

activities in organizations. Upon amendment, Canon 2(B)(2)(a)(ii) permits a
judge to “[p]articipate in but not solicit funds for de minimis fundraising
activities [on behalf of an organization] that are directed at a broad range of the
community and that may be performed by other volunteers who do not hold
judicial office.” This rule does not govern whether a judge may seek donations
for court defendants in a mental health court program.

Canon 3(C)(1) is applicable. Canon 3(C)(1) requires that a judge’s discharge of
administrative duties be diligent and without bias or prejudice. A judge’s
decision regarding solicitation and acceptance of a donation for a court is an
exercise of the judge’s administrative duties. In making a diligent decision, a
judge must consider factors such as the need for the donated items, the source of
the donations, and whether such donation diminishes in the public’s eye the
integrity, independence, and impartiality of the court.

Canon 1 is applicable. Canon 1 requires a judge to uphold the integrity and
independence of the judiciary.

  Canon 1 A judge shall uphold the integrity and independence of the
  judiciary

  An independent and honorable judiciary is indispensable to justice
  in our society.      A judge should participate in establishing,
  maintaining, and enforcing high standards of conduct, and
  personally shall observe those standards so that the integrity and
  independence of the judiciary will be preserved. The provisions of
  this Code are to be construed and applied to further that objective.

Use of the judicial office and judicial employees to solicit donations from local
businesses for defendants in mental health court programs is improper. Local
businesses, may feel intimidated by such request because of the very real
possibility that their cases and controversies may come before the court. Local
businesses may question the integrity of the court in making such solicitation
from entities that may be subject to their jurisdiction. Local businesses and the
public might also question the court’s independence, when the court seeks
outside financial support for it mental health court program.

Canon 2 is applicable. Canon 2 requires that “[a] judge shall respect and comply
with the law and shall act at all times in a manner that promotes public
confidence in the integrity and impartiality of the judiciary.” A judge’s decision
to accept a donation on behalf of a court must be made with due consideration for
the perception it may create to the public. Offers of great generosity and
magnitude may create appearances of partiality and impropriety. For example,
see, Opinion 2004-5, advising that [u]nder the Ohio Code of Judicial Conduct, a
municipal court judge should not accept a donation of ten carbines to a court’s
probation department for use in court security.” Bd. Commrs. Grievances and
Discipline, Op. 2004-5 (2004). But, even offers of small magnitude may create

Op. 2004-13 3

appearances of partiality and impropriety when arising from a source that is
interested in matters before the court, regulated by the court, or doing or seeking
to do business with the court.

A judge also must consider DR 8-101(A)(3) of the Ohio Code of Professional
Responsibility: a lawyer who holds public office is not permitted to “[a]ccept any
thing of value from any person when the lawyer knows or it is obvious that the
offer is for the purpose of influencing his [her] action as a public official.”
[Judges are lawyers and therefore are subject to the Ohio Code of Professional
Responsibility. See Gov.Jud R. I § 1.] A judge must consider whether a proposed
donation is an attempt to influence the judge. If a judge knows that the purpose
of a donation is to influence judicial actions, the judge must not accept the
donation.

It is the Board’s view pursuant to Canon 1, 2, and 3(C)(1) that a municipal court
judge should not prepare and sign a letter requesting local businesses to donate
small items for use as program rewards and incentives for defendants in the
mental health court and should not direct a court employee to solicit such
donations. Local businesses are subject to the jurisdiction of a municipal court.
Donations of small items from local businesses for use as reward or incentives to
defendants in a mental health court do not promote public confidence in the
court. As to Canon 1, the integrity and independence of the judiciary diminishes
when a judge uses the judicial office and judicial employees to solicit from local
businesses the donations of items for use as rewards and incentives for
defendants in mental health court. As to Canon 2, public confidence in the
integrity and impartiality of the judiciary lessens when a judge or judicial
employees ask local businesses subject to a court’s jurisdiction to donate items to
defendants participating in the mental health court program. As to Canon 3(C), a
judge’s administrative decision is not diligent if it diminishes the integrity and
independence of the judiciary or erodes public confidence in the court’s integrity
and impartiality. Under DR 8-101(A)(3), a serious concern is that those who
agree to make such donations may do so as an attempt to influence the court as to
future matters that may come before the court.

OHIO ETHICS LAW

Ohio Ethics Law is set forth in Chapter 102 and related statutes Sections 2921.42
and 2921.43 of the Ohio Revised Code. For purposes of Ohio Ethics Law, judicial
officers and judicial employees are “public officials and employees” and courts
are “public agencies.” Ohio Rev.Code Ann. § 102.01(B), (C) (West 2002). The
Board of Commissioners on Grievances and Discipline is the appropriate ethics
commission to render advice on Ohio Ethics Law for matters relating to judicial
officers and employees. See Ohio Rev.Code Ann. § 102.01(F)(2) (West 2002) and
§ 102.08 (West 2002).

Op. 2004-13 4

Sections 102.03(D) and (E) of the Ohio Revised Code, prohibit the misuse of
public office to secure, solicit, or accept a thing of value that is of such a character
as to manifest a substantial and improper influence with respect to official duties.
Section 102.03(F) prohibits a person from giving to a judicial officer or employee
a thing of value that is of such a character as to manifest a substantial and
improper influence with respect to official duties.

                               Section 102.03

   (D) No public official or employee shall use or authorize the use of
   the authority or influence of 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 the public official or employee with respect to that
   person’s duties.

   (E) No public official or employee shall solicit or accept anything of
   value that is of such a character as to manifest a substantial and
   improper influence upon the public official or employee with
   respect to that person’s duties.

  (F) No person shall promise or give to a public official or employee
  anything of value that is of such a character as to manifest a
  substantial and improper influence upon the public official or
  employee with respect to that person’s duties.

Ohio Rev.Code Ann. § 102.03 (D), (E), (F) (West 2002).

To invoke the restrictions of Section 102.03(D), (E), and (F): 1) there must be a
thing of value; and 2) the thing of value must be of such a character as to manifest
a substantial and improper influence with respect to official duties.

What is “anything of value?” “Anything of value” includes among other things,
money, goods, chattels, any interest in realty, a promise of future employment,
and every other thing of value. Ohio Rev. Code Ann. § 1.03 (West 2004) and §
102.01(G) (West 2002).

What is a “substantial and improper influence?” A thing of value that is more
than nominal or de minimis is a “substantial” influence. A thing of value from a
party interested in matters before, regulated by, or doing or seeking to do
business with the court is considered an “improper” influence.

Nevertheless, it is not necessary for the Board to determine whether small items
from local businesses for use as reward or incentives to defendants in a mental
health court are a substantial and improper influence. The donated items are not
for use by an individual judge or judicial employee. The donated items are for
use by defendants in the mental health court program. Such facts do not invoke
the restraints of Section 102.03. In addressing a related yet distinct issue, the

Op. 2004-13 5

Board advised, “[a] municipal court judge may accept on behalf of the court a
donation of artwork for the court’s historic building.” Bd. Commrs. Grievances
and Discipline, Op. 2004-6 (2004). “Donations of things of value to a court are
distinct from donations of things of value made to individual judicial officers and
employees, and are not prohibited by Section 102.03.” Id.

The proposed conduct does not violate Ohio Ethics Law. The proposed conduct
does violate the Ohio Code of Judicial Conduct.

Conclusion

Under Canon 1, 2, and 3(C)(1) of the Ohio Code of Judicial Conduct, a municipal
court judge may not prepare and sign a letter requesting local businesses to
donate small items for use as program rewards and incentives for defendants in
the mental health court and the judge may not direct a court employee to solicit
such donations. Use of the judicial office and judicial employees to solicit
donations from local businesses for defendants in mental health court programs
is improper.

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. 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.