THE COURTS
PART II. CONDUCT STANDARDS
[ 207 PA. CODE CH. 33 ]
Formal Opinion 2011-1
[41 Pa.B. 6876]
[Saturday, December 24, 2011]Notice is hereby given that the Ethics Committee of the Pennsylvania Conference of State Trial Judges has adopted its Formal Opinion 2011-1 which is set forth as follows.
EDWARD D. REIBMAN,
Chairperson
Ethics Committee
Pennsylvania Conference of State Trial Judges
Annex A
TITLE 207. JUDICIAL CONDUCT
PART II. CONDUCT STANDARDS
CHAPTER 33. CODE OF JUDICIAL CONDUCT
Subchapter B. FORMAL OPINIONS § 11-1. Certain Fundraising Activities.
The Ethics Committee of the Pennsylvania Conference of State Trial Judges regularly receives inquiries regarding the propriety of participation in civic and charitable activities by members of the judiciary. Because of the frequency of such inquiries, the Committee has decided to issue a formal opinion addressing this issue in order to provide guidance to the Conference.
The footnote to Canon 5A of the Code of Judicial Conduct acknowledges that the complete separation of judges from extra judicial activities is neither possible nor wise since there is danger in judges becoming isolated from the society and communities in which they live. There are, however, many concerns regarding the circumstances in which judges may properly participate in civic and charitable activities and, more particularly, the nature and extent of fundraising activities held on behalf of civic and charitable organizations in which a judge's participation is permissible.
Canon 5B of the Code of Judicial Conduct provides:
B. Civic and Charitable Activities. Judges may participate in civic and charitable activities that do not reflect adversely upon their impartiality or interfere with the performance of their judicial duties. Judges 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) Judges should not serve if it is likely that the organization will be engaged in proceedings that would ordinarily come before them or will be regularly engaged in adversary proceedings in any court.(2) Judges should not solicit funds for any educational, religious, charitable, fraternal, or civic organization, or use or permit the use of the prestige of their office for that purpose, but they may be listed as an officer, director, or trustee of such an organization. They should not be a speaker or the guest of honor at an organization's fund raising events, but they may attend such events.(3) Judges should not give investment advice to such an organization, but they may serve on its board of directors or trustees even though it has the responsibility for approving investment decisions.Thus, Canon 5B sets forth the general proposition that judges may participate in civic and charitable organizations and activities provided, however, such organizations and activities do not reflect adversely upon a judge's impartiality or interfere with the performance of his or her judicial duties. The Canon further provides that a judge may serve as an officer, director, trustee or non-legal advisor of an educational, religious, charitable, fraternal or civic organization if the organization is not conducted for the economic or political advantage of its members and the organization is not likely to be engaged in proceedings that would ordinarily come before the judge and will not regularly be engaged in adversary proceedings in any court. See Canon 5B(1). As to other activities concerning civic and charitable organizations, Canon 5B(2) permits judges to be listed as an officer, director, or trustee of such organizations and Canon 5B(3) permits judges to serve on boards of directors or as trustees, even though the board has the responsibility for approving investment decisions. However, Canon 5B(3) prohibits judges from giving investment advice.
In respect to fundraising, Canon 5B(2) specifically prohibits judges from soliciting funds for any educational, charitable, fraternal, or civic organization, or using or permitting the use of the prestige of their office for that purpose regardless of how worthwhile the organization or its activities may be.
Canon 5(B)(2) clearly prohibits judges from being the guest speaker or guest of honor at fundraising dinners or events. However, faced with reduced budgets and shrinking charitable contributions, organizations have turned to novel and creative fundraising efforts to swell the crowd or otherwise raise money by involving judges.
The Ethics Committee has been presented with a wide variety of such efforts. Without attempting to offer an all-inclusive list of all of the potential activities that fall within the ambit of Canon 5B, they have included using a judge as an attraction or celebrity participant, such as Dancing with the Stars, Competing with the Stars in Sporting Events, Celebrity Auctioneer and Celebrity Contributor. While celebrities and other government officials may lend their personal, professional, or other forms of celebrity status to the fundraising efforts of an organization, such activity by a judge is prohibited. In sum, a judge may not permit an organization to capitalize on, or exploit, a judge's attendance at or participation in such events by advertising that fact or issuing invitations citing that attendance or participation in advance of the event. A judge who allows him- or herself to be used in this manner is engaged in a solicitation of funds in violation of Canon 5(B)(2).
This does not mean a judge is precluded from receiving a well-earned award from an organization or even being recognized at an event. It means the judge cannot allow his/her presence at the event or the fact he/she will receive an award at it be used to promote a fundraising event. The critical harm to be avoided is the exploitation of the judge.
Therefore, while judges may attend fundraising events, assuming the event or activity does not violate the broader prohibition of reflecting adversely upon the judge's impartiality or interfere with the performance of the judge's judicial duties, a judge should not be featured as a highlight of any such event. Accordingly, advertising the judge's presence, placing the judge in a strategic position to influence potential customers or contributors, having a judge endorse a fundraising event or product, or having a judge sell tickets may each lead to effects the Code is designed to prevent. These include making people feel obligated to curry favor with the judge, diminishing the office of judge by turning it into a marketing tool, and pressuring other judges into participating in similar causes. A judge who allows him- or herself to be used in this manner is engaged in the solicitation of funds in direct violation to Canon 5B(2). And because of the overall prophylactic purpose of the rule, the worthiness of the cause for which the funds are being raised is irrelevant.
If, after considering the foregoing principles, a judge decides to attend or participate in a fundraising event, additional consideration must be given to the mandate of Canon 5A that a judge's avocational activities ''not detract from the dignity of the[] office.'' Accordingly, the indicia of the office of judge, including the judicial robe, gavel and courtroom should never be utilized or depicted in any manner which would compromise respect for the judiciary or the judicial process. Attendance at, or participation in, events that do so would, therefore, also be prohibited by Canon 5.
This opinion is obviously not intended as an exhaustive discussion of all of the potential activities permitted or prohibited under the Code. Instead, its primary focus is to address how a judge may participate in the fundraising aspects of civic and charitable activities without running afoul of Canon 5B(2)'s prohibition against using or permitting the use of the prestige of the judicial office for the solicitation of funds on behalf of those organizations in which they are involved. By remaining sensitive to the potential exploitation of the judicial office—or more specifically, the ''judge as judge''—the salutary purposes animating the Code of Judicial Conduct will be better served and the preservation of an independent judiciary can continue to be assured.
To reiterate, the purpose of this formal opinion is to provide guidance on a matter of general importance to the Conference. It is not a substitute for an advisory opinion by the Ethics Committee to an individual judicial officer on specific facts.
As adopted by the Supreme Court, the Code of Judicial Conduct provides:
The Ethics Committee of the Pennsylvania Conference of State Trial Judges is designated as the approved body to render advisory opinions regarding ethical concerns involving judges, justices and other judicial officers subject to the Code of Judicial Conduct, and, although such opinions are not per se binding upon the Judicial Conduct Board, the Court of Judicial Discipline or the Supreme Court of Pennsylvania, action taken in reliance thereupon and pursuant thereto shall be taken into account in determining whether discipline should be recommended or imposed.To obtain the ''rule of reliance,'' an individual subject to the Code of Judicial Conduct shall present to a member of the Ethics Committee a particular factual scenario to which the inquirer seeks advice regarding his/her prospective conduct.
[Pa.B. Doc. No. 11-2182. Filed for public inspection December 23, 2011, 9:00 a.m.]
No part of the information on this site may be reproduced for profit or sold for profit.This material has been drawn directly from the official Pennsylvania Bulletin full text database. Due to the limitations of HTML or differences in display capabilities of different browsers, this version may differ slightly from the official printed version.
