Can a municipal judge serve on the board of a nonprofit that provides services to the judge's court under a grant contract with the court's funding authority?

Plain-English summary

A nonprofit corporation provided community re-entry detention services to a municipal court (in-home detention with monitoring, community service placement, treatment, and job-training assistance) for misdemeanor defendants. The nonprofit took referrals from the court, the workhouse, and the probation office, and advised the court on each participant's progress. The program was funded through a grant contract between the city, which is the court's statutory funding authority, and the nonprofit. The Board analyzed whether a municipal judge could serve as a board member or officer, considering both the Ohio Ethics Law and the Code of Judicial Conduct.

On the Ohio Ethics Law, the opinion concludes that public officials, including judges, are barred from having an interest in a public contract entered into by or for their agency (R.C. 2921.42(A)(4)). A nonprofit board member has a pecuniary or fiduciary interest in the corporation's contracts. Because the court is a beneficiary of the city-nonprofit contract, a judge serving on the board would hold a fiduciary interest in that contract and is precluded from board service. The opinion explains that the Ohio Ethics Commission's exception (where the government entity creates or participates in the nonprofit and formally designates the official to represent it) does not apply, because the court did not create the nonprofit, the judge was not designated to represent the court, and the service raises a judicial-conduct conflict.

On the Code of Judicial Conduct, the opinion concludes that although Jud.Cond.R. 3.7 generally permits a judge to serve as an officer, director, trustee, or nonlegal advisor of a nonprofit civic or charitable organization, Jud.Cond.R. 3.7(A)(7)(a) bars such service when the organization will be engaged in proceedings before the judge. Here the nonprofit is regularly engaged in the court's proceedings through the judge's referrals and its progress reports. The opinion adds that board service may interfere with the judge's duty to uphold judicial independence and impartiality (Jud.Cond.R. 1.2, 3.1(C)), because parties could reasonably question the judge's impartiality when the nonprofit depends on a certain number of court referrals to realize its grant income.

In practice

This opinion was issued in 2021 under the current Code of Judicial Conduct. Under it, a judge may not sit on the board of a nonprofit that contracts to provide services to the judge's court. The opinion holds that the arrangement is barred on two independent grounds: the Ohio Ethics Law (R.C. 2921.42(A)(4)), because the judge would hold a fiduciary interest in a public contract benefiting the court, and the Code of Judicial Conduct (Jud.Cond.R. 3.7(A)(7)(a)), because the organization is regularly engaged in proceedings before the judge. Per the opinion, the service would also raise reasonable questions about the judge's independence and impartiality under Jud.Cond.R. 1.2 and 3.1(C), particularly where the nonprofit's income depends on court referrals.

Common questions

Q: Can a judge serve on the board of a nonprofit that works with the court?

A: Not where the nonprofit contracts to provide services to the court. The opinion concludes both the Ohio Ethics Law and Jud.Cond.R. 3.7(A)(7)(a) prohibit it, because the organization is regularly engaged in proceedings before the judge and the judge would hold a fiduciary interest in the funding contract.

Q: Why does the Ohio Ethics Law bar the service?

A: The opinion concludes that under R.C. 2921.42(A)(4) a judge may not have an interest in a public contract for the use of the court, and a nonprofit board member has a fiduciary interest in the corporation's contracts, including the city-funded contract that benefits the court.

Q: Does any exception let the judge serve?

A: The opinion concludes the Ohio Ethics Commission's exception does not apply, because the court did not create the nonprofit, the judge was not formally designated to represent the court, and the service creates a judicial-conduct conflict.

Q: What is the impartiality concern?

A: The opinion concludes that because the nonprofit's grant income depends on court referrals, parties could reasonably question whether the judge can rule impartially or might favor the program, undermining judicial independence under Jud.Cond.R. 1.2 and 3.1(C).

Background and rules framework

The opinion interprets the Ohio Code of Judicial Conduct: Jud.Cond.R. 3.7 (participation in nonprofit and civic organizations, including 3.7(A)(7)(a); CJC 3.7), Jud.Cond.R. 3.1 (extrajudicial activities in general, including 3.1(C); CJC 3.1), and Jud.Cond.R. 1.2 (promoting confidence in the judiciary; CJC 1.2). It also applies the Ohio Ethics Law, R.C. 2921.42(A)(4) and (E)(1). The opinion withdraws Adv. Op. 1991-11.

Citations and references

Rules of Judicial Conduct:

• Ohio Jud.Cond.R. 3.7 and 3.7(A)(7)(a) (CJC 3.7)
• Ohio Jud.Cond.R. 3.1(C) (CJC 3.1)
• Ohio Jud.Cond.R. 1.2 (CJC 1.2)

Statutes:

• R.C. 2921.42(A)(4), (E)(1) (public official's interest in a public contract); R.C. 2921.01(A)

Other opinions cited:

• Ohio Ethics Comm'n Op. 81-008 (1981); Op. 84-001 (1984) (board members' interest; designated-representative exception)
• Ohio BPC Adv. Op. 1991-11 (withdrawn by this opinion)

See also

• Ohio BPC Op. 1991-011: Judge Serving on the Board of a Nonprofit That Contracts With the Court (withdrawn by this opinion)
• Ohio BPC Op. 1987-003: Judge as Member of Board of Trustees for a Not-For-Profit Foundation
• Ohio BPC Op. 2002-009: Judge Serving on Government Boards and Councils

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2021/02/Adv.-Op.-2021-01-Final.pdf

Original opinion text

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

OPINION 2021-01
Issued February 12, 2021
Withdraws Adv. Op. 1991-11

Judicial Membership on Nonprofit Corporation Board Providing Services to Court

SYLLABUS: A judge may not serve as a member or officer of the board of directors of a
nonprofit corporation that provides services to the court under a contract with the court’s
funding authority.

This nonbinding advisory opinion is issued by the Ohio Board of Professional Conduct
in response to a prospective or hypothetical question regarding the application of
ethics rules applicable to Ohio judges and lawyers. The Ohio Board of Professional
Conduct is solely responsible for the content of this advisory opinion, and the advice
contained in this opinion does not reflect and should not be construed as reflecting the
opinion of the Supreme Court of Ohio. Questions regarding this advisory opinion
should be directed to the staff of the Ohio Board of Professional Conduct.
 65 SOUTH FRONT STREET, 5TH FLOOR, COLUMBUS, OH 43215-3431
Telephone: 614.387.9370 Fax: 614.387.9379
www.bpc.ohio.gov

PATRICIA A. WISE RICHARD A. DOVE
CHAIR DIRECTOR
HON. D. CHRIS COOK D. ALLAN ASBURY
VICE- CHAIR SENIOR COUNSEL
KRISTI R. MCANAUL
COUNSEL

                               OPINION 2021-01
                            Issued February 12, 2021
                           Withdraws Adv. Op. 1991-11

Judicial Membership on Nonprofit Corporation Board Providing Services to Court

SYLLABUS: A judge may not serve as a member or officer of the board of directors of a
nonprofit corporation that provides services to the court under a contract with the court’s
funding authority.

QUESTION PRESENTED:

Whether a municipal judge may serve as a member or officer of the board of directors of
a nonprofit corporation that provides services to the municipal court through a grant
contract between the corporation and the court’s funding authority.

APPLICABLE RULES: Jud.Cond.R. 1.2, 3.1, 3.7

OPINION: A nonprofit corporation provides services to a municipal court through a
community re-entry detention program for defendants charged with misdemeanor
violations of the municipal code. The program promotes community service assignments
as an alternative to incarceration and provides rehabilitation to participants in an effort
to reduce recidivism. The services include in-home detention with monitoring of each
participant, community service assignments, drug/alcohol-treatment services, and
educational, vocational and job training placement assistance. The nonprofit corporation
receives referrals from the municipal court, the workhouse and the probation office,
conducts home assessments and advises the court as to the progress of each participant.
Op. 2021-01 2

   The reentry program is funded through a grant contract between the city that is

court’s statutory funding authority and the nonprofit corporation. The nonprofit
corporation would use the funds from the grant to pay program expenses. The costs of
the program would be based on per diem rates for a specific number of participants. The
city could receive volume fee reductions in the per diem for agreeing to fund more
participants.

   An analysis of both the Code of Judicial Conduct and the Ohio Ethics Law is

necessary in order to answer the question presented.

Ohio Ethics Law

   Public officials, including judges, are subject to the Ohio Ethics Law, including a

prohibition against public officials from having an interest in any public contract entered
into by, or for the use of, his or her agency. R.C. 2921.01(A), 2921.42(A)(4). R.C.
2921.42(E)(1) defines a "public contract" for purposes of that section to include the
purchase or acquisition or a contract for the purchase or acquisition of property or
services by or for the use of a political subdivision. Members of a nonprofit corporation
board have either a pecuniary or fiduciary "interest" in the contracts of the corporation.
Oh. Ethics Comm. Op. 81-008 (1981). Under the facts presented, the municipal court on
which the judge serves is a beneficiary of the contract entered between the city and the
nonprofit organization. As a member of the nonprofit board under contract with the city,
the judge would have a fiduciary interest in the contract, and thus would be precluded
from serving on the nonprofit board under R.C. 2921.42(A)(4).

   An exception to the prohibition in R.C. 2921.42(A)(4) has been determined by the

Ohio Ethics Commission, but is inapplicable under the facts presented. The commission
has opined that a public official is permitted to serve on a nonprofit board without
violating R.C. 2921.42(A)(4) when 1) the governmental entity creates or is a participant in
the non-profit corporation; 2) the elected legislative authority or the appointed governing
body formally designates the office or position to represent the governmental entity; 3)
the public official or employee is formally instructed to represent the governmental entity
and its interests; and 4) there is no other conflict of interest on the part of the designated
representative. Ohio Ethics Comm'n, Op. 84-001 (1984). Here, the municipal court did not
create the nonprofit organization, the judge has not been officially designated to
Op. 2021-01 3

represent the court on the nonprofit board, and the judge’s service on the board gives rise
to an ethical conflict under the Code of Judicial Conduct. Based on the foregoing, a
judge’s membership as a director or officer on a nonprofit board, that contracts with the
city to provide reentry services to the court, gives rise to a fiduciary interest in a contract
between the corporation and the city that is precluded under the Ohio Ethics Law.

Code of Judicial Conduct

   A judge is generally permitted to serve as an officer, director, trustee, or non-legal

advisor of a non-profit educational, religious, charitable, fraternal, or civic organization.
Jud.Cond.R. 3.7. However, a judge cannot serve in these capacities if the organization
will be engaged in proceedings before the judge. Jud.Cond.R. 3.7(A)(7)(a). Based on the
question presented, the nonprofit organization will be regularly engaged in proceedings
of the court through the judge’s referral of defendants to the organization. The
organization would continue to engage with the court by informing the judge of the
program participant’s status and his or her completion of program requirements.

   Moreover, the judge’s participation as a board member may interfere with the

judge’s obligation to uphold the independence and impartiality of the judiciary.
Jud.Cond.R. 1.2. A judge may not participate in an extrajudicial activity when it would
appear to a reasonable person to undermine the judicial officer’s independence, integrity,
or impartiality. Jud.Cond.R. 3.1(C), 1.2. Service on the nonprofit board may raise
questions from court participants and proseuctors about the impartiality of the judge. For
example, the parties may question whether the judge can rule on matters in an impartial
manner when serving on the nonprofit board, especially when the organization depends
on a certain number of referrals from the court to realize its income from the city grant.
Likewise, reasonable questions concerning judicial independence may also be raised if
the judge promotes the use of the reentry program as a preferred alternative over
incarceration in order to ensure the financial success of the nonprofit corporation that he
serves in a fiduciary role.