Opinion No. 97-13
July 9, 1997
TOPIC: Judge as a board member, officer, or committee member of a not-for-profit economic development corporation.
DIGEST: A judge may serve as a board member, officer, or committee member of a not-for-profit economic development corporation involved in financial transactions with private businesses only if none of the limitations discussed in this opinion are applicable.
REFERENCES: Illinois Supreme Court Rule 61 of the Code of Judicial Conduct, Canon 1 (145 Ill.2d R. 61); Illinois Supreme Court Rules 65B, 65B(1), 65C(1), 65F of the Code of Judicial Conduct, Canon 5 (145 Ill.2d R. 65); Hinsdale Golf Club v. Kochanski, 197 Ill.App.3d 634, 555 N.E.2d 31 (2d Dist.), appeal denied, 133 Ill.2d 556 (1990); People v. Rymut, 216 Ill.App.3d 920, 576 N.E.2d 1208 (2d Dist. 1991); Section 5B of the Model Code of Judicial Conduct (1972); Section 4C(3) of the Model Code of Judicial Conduct (1990) and related Commentary; Jeffrey M. Shaman et al., Judicial Conduct and Ethics, 7.04, 9.13 (1990); Illinois Judicial Ethics Committee Opinion Nos. 93-5, 93-7, 95-11, 96-3, 96-4, 96-10, 97-3, 97-5, 97-6, 97-9.
FACTS
A judge has been asked to serve a not-for-profit economic development corporation (the Corporation) in various capacities. The Corporation encourages the growth of local businesses, industry, and other forms of private enterprise in order to enhance the county's economic development and assist the growth of jobs for county residents. To that end, the Corporation buys and accepts donations of real estate and personal property which it then sells to deserving companies at below-market rates. The Corporation also administers loans funded in whole or in part by governmental agencies, and occasionally loans its own money at low or no interest. Other Corporation activities include disseminating information about the county and business opportunities available there.
QUESTIONS
1. Can the judge serve as a member of the Corporation board of directors with full authority to vote on financial or contractual decisions, obligations, and responsibilities of the Corporation?
2. Can the judge serve as secretary to the Corporation with the right and obligation to (a) attend board of directors meetings, (b) participate in discussions at such meetings (without any right to vote on board decisions), and (c) sign certain documents on behalf of the Corporation?
3. Can the judge serve as a member of a committee which is composed of certain members of the Corporation and which has the responsibility to disseminate information concerning county resources and opportunities to established and prospective businesses, and to county residents and others?
OPINIONS
Question 1
A. General Rule Permitting Involvement with Non-Profit Organizations The judge is permitted by Rule 65B to serve as a member of the Corporation board of directors, subject to the restrictions contained in that rule and possibly in Rule 65C(1). Rule 65B states in pertinent part:
"65B. 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 nonlegal 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 the judge or will be regularly engaged in adversary proceedings in any court.
(2) A judge should not solicit or permit his or her name to be used in any manner to solicit funds or other assistance for any such organization...."
Subject to certain limitations, the second sentence to Rule 65B expressly permits judges to serve as members of the board of directors of a "civic organization not conducted for the economic or political advantage of its members...." The Corporation involved in this inquiry is a non-profit civic organization intended to facilitate the growth of business and industry in the county and, thereby, benefit the entire county and its inhabitants. Because the economic benefits from the Corporation's activities are spread throughout the community and are not directed at any particular individuals or businesses, the Corporation is not conducted for the economic advantage of its members. Accordingly, the second sentence to Rule 65B permits the judge to serve as a board member unless such service would violate another provision of the Code of Judicial Conduct.
B. Express Limitations on Participation in Non-Profit Organizations Contained in Rule 65B(1) & (2) Rule 65B contains several express limitations on a judge's ability to serve as a board member.
First, Rule 65B(1) prohibits a judge from doing so if it is likely that the corporation will be a litigant in proceedings that would ordinarily come before the judge. A mere possibility that the Corporation will be a litigant before the judge does not prevent the judge from serving on the Corporation board. No information has been provided to this Committee suggesting that the Corporation will probably be a litigant before the judge. In deciding whether this limitation is applicable, the judge should consider the extent, if any, to which the Corporation has been engaged in litigation that was heard by the judge or by someone who previously held the judge's current position.
Second, Rule 65B(1) would prohibit the judge from serving as a board member for the Corporation if the Corporation will be regularly engaged in litigation in any court. Again, this Committee has been given no reason to believe that the Corporation will be a frequent litigant. And once more, the Corporation's history will provide the best evidence regarding whether this limitation is applicable. Cf. Illinois Judicial Ethics Committee ("IJEC") Opinion No. 93-7 (judge may not serve as president of organization that is a frequent litigant); IJEC Opinion No. 95-11 (judge may serve on board of not-for-profit organization that trains guardians ad litem); IJEC Opinion No. 97-3 (judge may not serve on task force that is regularly engaged in adversary proceedings).
The third express limitation on the judge's service as a board member involves the limitations on fund-raising contained in Rule 65B(2). Here, there is no indication that the judge would be asked to participate or would unavoidably be engaged in any fund-raising activities prohibited by that rule. See IJEC Opinion No. 96-3 (participation of judges in organization fund-raising events); IJEC Opinion No. 96-4 (judge's participation in synagogue's fund-raising activities).
C. Implied Limitations on Participation in Non-Profit Organizations Contained in Rule 65
In addition to the express limitations contained in Rule 65B(1) & (2), the second sentence to Rule 65B contains an implied limitation on a judge's ability to serve a civic organization. By expressly permitting judges to serve as "nonlegal advisor[s]" of civic organizations, Rule 65B impliedly prohibits judges from serving as legal advisors to such entities. See also Supreme Court Rule 65F (judge may not practice law). However, this restriction is inapplicable here since the judge would not be serving as counsel to the Corporation.
Unlike the balance of Rule 65B, which expressly relates to a judge's service in connection with civic and other non- profit organizations, the first sentence to Rule 65B applies broadly to a judge's participation in any "civic and charitable activities." In light of the interpretive maxim that specific provisions are generally not qualified by general provisions (see, e.g., People v. Rymut, 216 Ill.App.3d 920, 923, 576 N.E.2d 1208, 1210 (2d Dist. 1991)), it is unclear whether the general limitations on participation in civic activities contained in the first sentence to Rule 65B i.e., the prohibition against activities that reflect adversely upon the judge's impartiality or interfere with the performance of the judge's judicial duties apply to the specific kind of civic activity involving service in connection with civic organizations addressed in the balance of that rule.
The Committee believes that the limitations contained in the first sentence to Rule 65B are so fundamental that they must have been intended to apply to service on behalf of civic organizations. For example, it is inconceivable that a judge could permissibly serve a civic corporation if doing so interfered with the judge's ability to perform his or her judicial functions.
In any event, the applicability of the first sentence to Rule 65B is not critical here because it appears that the judge's service on the Corporation's board of directors would comply with the limitations contained in that provision. The prohibition against civic activities that reflect adversely on the judge's impartiality is largely subsumed in this instance by the express provisions of Rule 65B(1) concerning the likelihood that the Corporation would be involved in proceedings before the judge. As noted above, the judge's service on the Corporation's board of directors apparently would not violate that provision. And since there is no indication that serving on the Corporation board would involve an onerous time commitment, there is no reason to believe that it would interfere with the judge's performance of judicial duties. See Jeffrey M. Shaman et al., Judicial Conduct and Ethics, 9.13 at p. 270 (1990) (prohibition against civic activities that interfere with performance of judicial duties refers to "participating in overly time-consuming activities").
D. Applicability of Limitations Contained in Rule 65C(1)
The final potential source of limitations on the judge's ability to serve on the Corporation's board of directors is Rule 65C(1), which provides in pertinent part:
C. Financial Activities
(1) A judge should refrain from financial and business dealings that tend to reflect adversely on the judge's impartiality, interfere with the proper performance of the judge's judicial duties, exploit the judge's judicial position, or involve the judge in frequent transactions with lawyers or persons likely to come before the court on which the judge serves.
The focus of Rule 65C(1) is clearly a judge's personal financial activities. It is not clear from the face of that rule whether it also applies to a judge's financial activities on behalf of civic organizations. A related, but broader, issue is whether Rule 65B states the exclusive source of limitations on a judge's ability to serve civic organizations when it states that a judge may do so, "subject to the following limitations" set forth in that rule.
The Committee has already concluded in Section I(C) of this opinion that the "following limitations" in Rule 65B, i.e., those contained in Rule 65B(1) & (2), do not state the exclusive limitations on a judge's service on behalf of civic organizations and that such service is still subject to the restrictions contained in the first sentence to Rule 65B and the prohibition against a judge practicing law. This suggests that Rule 65C(1) could add additional limitations to a judge's service of civic organizations.
On the other hand, the first two limitations contained in Rule 65C(1) the prohibition against activities that reflect adversely on the judge's impartiality or interfere with the performance of judicial duties are already applicable to a judge's service on behalf of civic organizations through the first sentence to Rule 65B. Although such redundancy is not as conclusive as inconsistency in determining whether different statutory provisions or court rules are simultaneously applicable, that superfluity tends to suggest that Rule 65C(1) is inapplicable to activities governed by Rule 65B. See, e.g., Hinsdale Golf Club v. Kochanski, 197 Ill.App.3d 634, 637, 555 N.E.2d 31, 33 (2d Dist.), appeal denied, 133 Ill.2d 556 (1990) (statutory interpretations should not render provisions superfluous).
Rule 65B is derived nearly verbatim from Section 5B of the 1972 Model Code of Judicial Conduct. The comparable provisions in the 1990 Model Code of Judicial Conduct expressly make a judge's participation in civic activities subject to "other requirements of this Code." See Section 4C(3) of the Model Code of Judicial Conduct (1990). The Commentary to Section 4C(3) of the 1990 Code does not indicate, nor is there other reason to believe, that the change in the 1990 Code was intended to modify, rather than clarify, the meaning of Section 5B of the 1972 Code.
On balance, the Committee believes that the express limitations on a judge's service on behalf of civic and other non-profit organizations contained in Rule 65B are not exclusive and that such service remains subject to any other restrictions contained in the Code of Judicial Conduct. For example, there would seem to be little doubt that service on behalf of such organizations is still subject to the requirement in Rule 61 to "observe . . . high standards of conduct so that the integrity and independence of the judiciary may be preserved." See, e.g., IJEC Opinion No. 96-10 (judge may not race in judicial robes at charitable event).
Moreover, the Committee believes that the limitations on a judge's financial activities in Rule 65C(1) also apply to financial activities on behalf of a civic or charitable organization. The judge's lack of a personal financial stake in those activities may reduce, but it does not eliminate, the Rule's underlying concerns regarding conflict of interest, exploitation of judicial position, and appearance of impropriety. See Jeffrey M. Shaman et al., Judicial Conduct and Ethics, 7.04 at pp. 166-67 (1990) (rationale for regulating judges' financial activities).
Here, the judge's service on the Corporation's board of directors appears unlikely to violate Rule 65C(1). With respect to this inquiry, the primary issue raised by that rule is whether the judge's dealings on behalf of the Corporation would "involve the judge in frequent transactions with lawyers or persons likely to come before the court on which the judge serves." The Corporation engages in the following kinds of commercial transactions: buying property; receiving donations of property; selling property at below-market rates to encourage investment and employment in the county; administering government loan programs; and lending money at low or no interest. Because many of these kind of transactions are apt to be negotiated and structured by local attorneys, there is a risk that those transactions would involve lawyers who could appear before the judge. There is also a possibility that such transactions would involve local business people who could appear before the judge.
The permissibility of this activity depends upon the likelihood that it would frequently involve contact with attorneys and persons who are likely to appear before the judge. Neither occasional contact on behalf of the Corporation with persons who are likely to come before the judge, nor frequent contact with persons who are unlikely to come before the judge, are prohibited.
Although a definitive assessment of these probabilities would require information regarding the extent to which the Corporation has frequently engaged in transactions with lawyers or litigants who have often appeared before the judge (or a judge who previously held the judge's current assignment), the kind of extensive contact prohibited by Rule 65C(1) would be unusual in most communities, most judicial assignments, and (we presume) most Corporation activities.
Under these circumstances, subject to the judge's assessment, in light of the Corporation's history, of the likelihood that any of the restrictions contained in Rules 65B or 65C(1) are applicable, the Committee believes that the judge is permitted to serve on the Corporation's board of directors. Cf. IJEC Opinion No. 97-6 (judge may serve on board of directors of non-profit corporation).
Question 2
The foregoing analysis regarding the judge's service on the Corporation's board of directors also applies to the judge's service as Corporation secretary. Rule 65B authorizes judges to "serve as an officer, director, trustee, or nonlegal advisor" of a civic organization. (Emphasis added.) See IJEC Opinion No. 93-5 (judge may serve as president of board of directors of not-for-profit corporation); IJEC Opinion No. 96-4 (judge may serve as president of synagogue). A judge's ability to serve as secretary should be the same as his or her ability to serve as a board member, except in the unlikely event that one, and only one, of those positions would involve the judge in frequent transactions with lawyers or litigants likely to come before the judge. The judge could not serve in any position that involved such contact.
Question 3
The judge's participation as a member of a Corporation committee that disseminates information about county resources and facilities is governed by the first sentence to Rule 65B, which allows a judge to participate in civic activities "that do not reflect adversely upon the judge's impartiality or interfere with the performance of the judge's judicial duties." The Corporation's objective of furthering the economic development of the county, its dissemination of information in pursuit of that objective, and the limited time commitment which committee service entails, do not violate either of these restrictions. Accordingly, the judge's service on the Corporation committee is consistent with Rule 65B. Cf. IJEC Opinion No. 97-5 (judge may serve as trustee of charitable foundation); IJEC Opinion No. 97-9 (judge may serve as trustee of charitable trust).
CONCLUSION
Subject to the judge's assessment of the applicability of the limitations contained in Rules 65B and 65C(1), the judge may serve the Corporation as a member of its board of directors, as its secretary, or as a member of a committee which disseminates information in furtherance of the Corporation's civic objectives.
