Opinion No. 95-13

August 1, 1995

TOPIC: Judge serving on board of directors of cooperative in which the judge lives.

DIGEST: A judge may serve on the board of directors of the cooperative in which the judge lives so long as, if the board of directors is engaged in civic activities, the cooperative is organized and run on a not-for-profit basis, will not likely be engaged in proceedings that would ordinarily come before the judge, and will not regularly be engaged in adversary proceedings in any court, and provided the judge neither serves as legal advisor nor engages in fund-raising activities.

REFERENCES: Illinois Supreme Court Rule 65B of the Code of Judicial Conduct, Canon 5 (145 Ill.2d R. 65); Illinois Supreme Court Rule 65B(1) of the Code of Judicial Conduct, Canon 5 (145 Ill.2d R. 65); Illinois Supreme Court Rule 65B(2) of the Code of Judicial Conduct, Canon 5 (145 Ill.2d R. 65); Illinois Supreme Court Rule 65C(1) of the Code of Judicial Conduct, Canon 5 (145 Ill.2d R. 65); and see New Hampshire Opinion 78-1 (May 24, 1978), New York Opinion 89-133 (December 5, 1989), and the Commentary to Canon 4C(3) of the California Code of Judicial Conduct.

FACTS

A Judge has been elected to serve on the board of directors of the tenant/shareholders, association of the cooperative apartment house in which the judge lives. Membership in the association is automatic for those residing in the building. Their lease is dependent upon their holding shares in the cooperative. No separate fees are assessed.

QUESTION

Under what circumstances may a judge serve on the board of directors of a cooperative owners' or tenants' association?

OPINION

The Illinois Code of Judicial Conduct would appear to permit the judge to serve in a leadership capacity in such a group. Illinois Supreme Court Rule 65B permits a judge to "serve as an officer, director, trustee or nonlegal advisor of [a]...civic organization not conducted for the economic or political advantage of its members" subject to certain limitations.

It is questionable whether a cooperative owners' or tenants' association is a "civic organization" under Rule 65B. Although the Code of Judicial Conduct does not define that term, it appears intended to apply to organizations that address public issues, as opposed to building management concerns. If the association is not engaged in civic activities, and therefore is not a civic organization, the judge may serve on its Board of Directors. Such service would be an aspect of "activities usually incident to the ownership of such [real estate] investments" authorized by Supreme Court Rule 65C(2). Cf. Commentary to Canon 4C(3) of the California Code of Judicial Conduct ("Service on the Board of a homeowners' association or a neighborhood protective group is proper if it is related to the protection of the judge's own economic interests").

If a cooperative owners' or tenants' association is engaged in civic activities, and is therefore a civic organization, Rule 65B(1) states that the 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." Rule 65B(2) prohibits a judge from soliciting or permitting his or her name to be used in any manner to solicit funds or other assistance for any such organization. Rule 65B(2) further prohibits a judge from allowing his or her name to appear on letterheads of such an organization to solicit funds, from allowing the judge's staff or court officials or others under the judge's direction or control to solicit on the judge's behalf, and from being a speaker or the guest of honor at an organization's fund-raising events.

Advisory opinions from other jurisdictions would generally permit the judge to serve in a leadership capacity in such an association subject to the kinds of limitations spelled out in Rules 65B and 65B(l) and the kinds of restrictions specified in Rule 65B(2) relating to the judge's participation in fund-raising activities, See, e.g., New Hampshire Opinion 78-1 (May 24, 1978); New York Opinion 89-133 (December 5, 1989).