May a judge sit on the board of a nonprofit that contracts with the court and whose services defendants use to satisfy probation?

Currency note

This opinion interprets the former Ohio Code of Judicial Conduct, which the Board flagged as superseded by the Ohio Code of Judicial Conduct effective March 1, 2009. It was issued in 2006. Subsequent revisions to the judicial-conduct rules 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 Treat this page as historical context, not current guidance.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 or requirement mentioned here.

Plain-English summary

A municipal court judge asked whether they could serve, without compensation, on the board of trustees of a nonprofit that provides mental health and chemical-dependency treatment and counseling. The court has a mental health program docket, and the nonprofit both contracts with the court to provide a case manager for that docket and offers services that defendants use to satisfy court-ordered probation. The Board concluded the service was improper, under both Ohio Ethics Law and the Code of Judicial Conduct, and limited the opinion to non-statutorily-mandated board service.

On the ethics-law branch, the Board applied R.C. 2921.42(A)(4), which bars a public official from having an interest in a public contract of the governmental body with which the official is connected. A board member has an "interest," pecuniary or fiduciary, in the nonprofit's contracts. Because the municipal court (through its mental health docket) had an agreement to pay the nonprofit, a judge on the board would hold a prohibited interest in a public contract. The Board added that under R.C. 102.03(D) and (E), where defendants use, and are sometimes directed by the probation office to use, the nonprofit's services to meet probation conditions, the board service could be viewed as a thing of value that might manifest a substantial and improper influence on the judge's sentencing and probation decisions.

On the judicial-conduct branch, the Board applied Canon 2(B), which lets a judge serve as a director or trustee of a nonprofit civic or charitable organization, subject to Canon 2(B)(1)'s limits. Canon 2(B)(1) bars such service where the organization is likely to be engaged in proceedings that ordinarily would come before the judge. Because defendants choose, and are sometimes directed, to use the nonprofit to fulfill probation conditions, the Board treated it as an organization engaged in proceedings that would come before the judge. The Board also invoked Canon 1's duty to preserve the integrity and independence of the judiciary, reasoning that board service creates the appearance that probation decisions might be influenced by the judge's fiduciary interest in the nonprofit.

Common questions

Q: Why couldn't the judge serve even though they heard the mental health docket only once a year?

A: The Board found the frequency immaterial. Per the opinion, the mental health program docket is part of the municipal court, there was a public contract between the court and the nonprofit, and a judge on the board would have a prohibited interest in that contract under R.C. 2921.42(A)(4).

Q: Did it matter that the judge would receive no pay for the board seat?

A: No. The opinion explained that an interest in a public contract may be fiduciary as well as pecuniary, so an uncompensated trustee still has a prohibited interest.

Q: Would the result be the same with no court contract, only probationers using the nonprofit?

A: The opinion concluded service was still improper on that ground, citing R.C. 102.03 and Canon 2(B)(1), because the nonprofit is an organization engaged in proceedings that ordinarily would come before the judge.

Background and rules framework

The opinion applies two bodies of law. Ohio Ethics Law (R.C. Chapter 102 and R.C. 2921.42, 2921.43), for which the Board is the advisory body as to judicial officers, supplies R.C. 2921.42(A)(4) (interest in a public contract) and R.C. 102.03(D), (E) (improper influence). The former Ohio Code of Judicial Conduct supplies Canon 1 (integrity and independence of the judiciary) and Canon 2(B), including the Canon 2(B)(1) limits on serving an organization likely to appear before the judge (Model Code of Judicial Conduct Canons 1, 2).

Citations and references

Code of Judicial Conduct:

• Former Ohio Code of Judicial Conduct Canon 1, Canon 2(B), Canon 2(B)(1) (Model Code of Judicial Conduct Canons 1, 2)

Statutes:

• Ohio Rev. Code 2921.42(A)(4), 2921.42(G) (interest in a public contract)
• Ohio Rev. Code 102.03(D), (E), (F); 102.01; 102.08 (Ohio Ethics Law)

Other opinions cited:

• Ohio BPC Op. 91-11 (1991): board member's interest in a nonprofit's public contract
• Ohio BPC Op. 2004-5 (2004): when a thing of value is a substantial and improper influence
• Ohio Ethics Comm'n Ops. 81-008, 81-003 (1981): interest in a public contract

See also

• Ohio BPC Op. 1987-003: Judge as Member of Board of Trustees for Not-For-Profit Foundation
• Ohio BPC Op. 1987-013: Judge on a Governmental Task Force
• Ohio BPC Op. 1991-027: Judge Involvement in a Business Joint Venture

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-06-007.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 2006-7
Issued August 4, 2006

[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: It is improper under the Ohio Code of Judicial Conduct and Ohio Ethics Law for a municipal court judge to serve on the board of trustees of a non- profit corporation that provides mental health and chemical dependency treatment and counseling services, when the non-profit corporation has a contract to provide services to the court for the mental health program docket or when municipal court defendants use the services of the non-profit to fulfill conditions of court ordered probation.

OPINION: This opinion addresses a question regarding a municipal court judge serving on the board of a non-profit corporation. This opinion does not consider the issue of a judge serving on a board pursuant to a statutory mandate.

Is it proper for a municipal court judge to serve on the board of trustees of a non-profit corporation that provides mental health and chemical dependency treatment and counseling services, when the non-profit has a contract to provide services to the court for the mental health program docket or when municipal court defendants use the services of the non-profit to fulfill conditions of court ordered probation?

A municipal court judge is considering serving on the board of trustees of a non- profit corporation that provides mental health and chemical (alcohol and/or drug) dependency treatment and counseling services. The judge would receive no compensation for serving on the board.

The municipal court has a mental health program docket. The inquiring judge hears cases on the mental health program docket approximately once a year.

Interaction of the municipal court with non-profit providers of mental health and chemical dependency treatment and counseling

The municipal court interacts with various providers of mental health and chemical dependency treatment and counseling services in several ways.
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One, a municipal court judge will order a defendant to obtain mental health and/or chemical dependency counseling and treatment, when appropriate, as a condition of probation. For example, the court will mandate counseling as a condition of probation for domestic violence offenders. Most often, the municipal court will allow a defendant to choose a provider; however, the probation officers may direct defendants to certain providers. The defendant is responsible for paying for the services of the chosen provider.

Two, the municipal court enters contracts with various providers for specific services needed by the court. For example, the court contracts with providers for mental health assessments and for intensive alcohol treatment for multiple offenders of operating a motor vehicle under the influence.

Three, the municipal court contracts with various providers to provide services required in the operation of the mental health court program docket, such as treatment providers and case managers.

Interaction of the municipal court with the non-profit corporation on which the judge would serve on the board

The non-profit corporation, on which the judge would serve, describes itself as a comprehensive mental health, chemical dependency, and healthcare organization serving diverse populations regardless of their economic status. The non-profit corporation offers services for individuals with severe and persistent mental illness, services for homeless persons with severe and persistent mental illnesses, adult and family outpatient services, chemical dependency outpatient services, and residential housing programs. As part of its outpatient services, the corporation provides what it describes as “criminal justice services” such as domestic violence services, a stalking victims advocacy program, and a sex offender treatment program. http://www.southeastinccom.gripserver.com (last visited Jul. 7, 2006).

The non-profit corporation, on which the judge would serve, is a provider of services that a municipal court defendant could use to fulfill the conditions of court ordered probation.

The non-profit corporation, on which the judge would serve, currently does not have a contract with the municipal court to provide health assessments or a contract to provide intensive alcohol treatment for multiple offenders, but potentially could bid on providing such services to the court in the future.

The non-profit corporation, on which board the judge would serve, has entered a written memorandum of understanding with the municipal court [and with the Alcohol Drug Addiction and Mental Health Services Board (ADAMH)] to participate in the mental health court project. As part of the agreement, the court
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agrees to pay the non-profit corporation to provide a case manager for individuals on the court’s mental health program docket. Also, pursuant to the agreement, the non-profit corporation accepts responsibility for initiating and maintaining treatment of each individual referred from the mental health program docket.

Application of Ohio Ethics Law

Ohio Ethics Law is set forth in Chapter 102 and Sections 2921.42 and 2921.43 of the Ohio Revised Code. Judges are subject to Ohio Ethics Law. Ohio Rev. Code Ann. § 102.01 (B), (C), § 2921.01 (A), (B) (West Supp. 2006).

The appropriate advisory body for Ohio Ethics Law matters relating to judicial officers and judicial employees is the Board of Commissioners on Grievances and Discipline. Ohio Rev. Code Ann. § 102.01(F)(2) (West Supp. 2006) and § 102.08 (West 2002).

Pertinent to this opinion is R.C. 2921.42(A)(4), a provision of Ohio Ethics Law, which prohibits a judge from having an interest in a public contract with the court with which the judge is connected.

R.C. 2921.42(A) No public official shall knowingly do any of the following:

(4) Have 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 [she] is connected.

Ohio Rev. Code Ann. § 2921.42(A) (West 1997).

A public contract is defined as follows:

R.C. 2921.42(G) As used in this section:

(1) ‘Public contract’ means any of the following:

(a) The purchase or acquisition, or a contract for the purchase or acquisition, of property or services by or for the use of the state, any of its political subdivisions, or any agency or instrumentality of either, including the employment of an individual by the state, any of its political subdivisions, or any agency or instrumentality of either;
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(b) A contract for the design, construction, alteration, repair, or maintenance of any public property.

Ohio Rev. Code Ann. § 2921.42(G) (West 1997).

An “interest” in a public contract may be either pecuniary or fiduciary. A board member of a non-profit corporation has an “interest” in the contracts of the non- profit corporation. See Ohio SupCt, Bd Comm’rs on Grievances & Discipline, Op. 91-11 (1991), Ohio Ethics Comm’n Op. 81-008 (1981), Ohio Ethics Comm’n, Op. 81-003 (1981).

A municipal court judge is prohibited by R.C. 2921.42(A)(4) from serving on the board of a non-profit corporation that has a contract with the municipal court to provide services. See Ohio SupCt, Bd Comm’rs on Grievances & Discipline, Op. 91-11 (1991).

Even though the mental health program docket is separate from the general docket and even though the inquiring judge hears cases on the mental health program docket only once a year, it is improper for the judge to serve. The mental health program docket is part of the municipal court. There is a public contract between the municipal court and the non-profit corporation. A judge serving as a board member would have a prohibited interest in a public contract.

Thus, under Section 2921.42 (A)(4), a municipal court judge may not serve on the board of trustees of a non-profit corporation that provides mental health and chemical dependency treatment and counseling services if the municipal court has an agreement to pay the non-profit corporation for providing services to the court’s mental health program docket.

Further, under Sections 102.03(D) and (E), a municipal court judge should not serve on the board of trustees of a non-profit corporation that provides mental health and chemical dependency treatment and counseling services, when municipal court defendants fulfill conditions of their court-ordered probation by using, and sometimes being directed by the probation office to use, the services of the non-profit.

Section 102.03(D) states that no judge “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.” Ohio Rev. Code Ann § 102.03(D) (West Supp. 2006). Section 102.03(E) states that no judge “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.” Ohio Rev. Code Ann § 102.03(E) (West Supp. 2006). Section 102.03(F) states “[n]o 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
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influence upon the public official or employee with respect to that person’s duties.” Ohio Rev. Code Ann § 102.03(F) (West Supp. 2006).

“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 Supp. 2006). 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 public agency is considered an improper influence. See Ohio SupCt, Bd Comm’rs on Grievances & Discipline, Op.2004-5 (2004).

A judge has the duty to decide a sentence and a condition of probation. The judge’s proposed service as a member on a non-profit board that provides services utilized by defendants (either through the defendant’s own choice or through the direction of the probation office) to fulfill a condition of probation could be viewed as a thing of value that might manifest a substantial and improper influence upon the judge with regard to sentencing and probation decisions.

Application of Ohio Code of Judicial Conduct

The Ohio Code of Judicial Conduct is also applicable. Canon 2(B) allows a judge to serve as an officer, director, trustee, or non-legal advisor of an educational, religious, charitable, fraternal, or civic organization not conducted for profit, subject to the limitations listed in Canon 2(B)(1) and the other requirements of the Code of Judicial Conduct.

The limitations in Canon 2(B)(1) are as follows:

Canon 2(B)(1) A judge shall not serve as an officer, director, trustee, or non-legal advisor if it is likely that the organization will be engaged in either of the following:

(a) Proceedings that ordinarily would come before the judge;

(b) Adversary proceedings with frequency 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 non-profit corporation, on which the judge would serve, is considered to be an organization engaged in proceedings that ordinarily would come before the judge. Defendants in municipal court exercise the choice of using the services of that non-profit corporation to fulfill the conditions of court ordered probation.
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At times, the defendants may be directed by the probation office to the non-profit corporation.

The requirements of Canon 1 are applicable. Canon 1 requires that a judge uphold the integrity and independence of the judiciary. Under Canon 1 “[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 integrity and independence of the judiciary is not maintained if a judge serves on the board of a non-profit corporation that provides defendants of the court with services needed to fulfill court ordered conditions of probation. The appearance is that a judge’s decision to impose certain conditions of probation may be influenced by the judge’s fiduciary interest in the promoting the use of the services of the non-profit corporation on which he or she serves.

Thus, under Canon 1 and Canon (2)(B)(1), a municipal court judge may not serve on the board of trustees of a non-profit corporation that provides mental health and chemical dependency treatment and counseling services if the municipal court has an agreement to pay the non-profit corporation for services to the court’s mental health docket program docket.

Conclusion

It is improper under the Ohio Code of Judicial Conduct and Ohio Ethics Law for a municipal court judge to serve on the board of trustees of a non-profit corporation that provides mental health and chemical dependency treatment and counseling services, when the non-profit corporation has a contract to provide services to the court for the mental health program docket or when municipal court defendants use the services of the non-profit to fulfill conditions of court ordered probation.

Advisory Opinions of the Board of Commissioners on Grievances and Discipline are informal, nonbinding opinions in response to prospective or hypothetical questions regarding the application of the Supreme Court Rules for the Government of the Bar of Ohio, the Supreme Court Rules for the Government of the Judiciary, the Code of Professional Responsibility, the Code of Judicial Conduct, and the Attorney’s Oath of Office. Pursuant to Section 102.08 of the Ohio Revised Code, the requester of the opinion may reasonably rely on the opinion as it applies to Ohio Ethics Law and related statutes.