The Ethics Advisory Committee has been asked for its opinion as to whether the Code permits a justice court judge to serve as chair of a county planning commission.

The committee is of the opinion that the Code of Judicial Conduct permits a part-time judge to serve as the chair of a planning commission as that position is described in this opinion.

For purposes of addressing this issue, the Ethics Committee was advised that the planning commission in question serves as an advisory body to the Board of County Commissioners on questions concerning amendments to the county's development code, zoning map or master land use plan. The chair of the planning commission presides over the meetings and any public hearings which are held. The commission members occasionally take field trips to inspect property. The recommendations of the planning commission are submitted to the Board of County Commissioners for review and approval. The members of the planning commission are appointed from a pool of volunteers to three-year terms. They are paid ten dollars per meeting and twenty five cents per mile for travel from their residence to the meetings. The meetings are held twice a month.

It should be noted at the outset that, as a part-time judge, a justice court judge is not required to comply with Canons 4B, 5D, 5E and 5F of the Code of Conduct, but is required to comply with the remaining provisions. Canon 5F, which is not applicable to this judge, prohibits a judge from accepting appointment to a governmental committee that is concerned with issues of fact or policy on matters other than those related to the law.

The applicable provisions of the Code of Conduct are Canons 5B and 6. Canon 5B provides in pertinent part:

Civic and Charitable Activities. A judge may participate in civic . . . activities that do not reflect adversely upon impartiality or interfere with the performance of judicial duties. A judge may serve as an officer . . . of [a] . . . 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 funds . . .

(3) A judge should not give investment advice to such an organization . .

Canon 6 provides that a judge may receive compensation and reimbursement of expenses for the extra-judicial activities permitted by this Code. The source of such payments, however, must not "give the appearance of influencing the judge in performance of judicial duties or otherwise give the appearance of impropriety. " Furthermore, the compensation should be reasonable in amount and should not exceed what a person who is not a judge would receive for the same activity. Canon 6A. Expense reimbursement should be limited to the actual cost of travel, food, and lodging. Canon 6B.

Applying the pertinent canons to this situation, it is the Committee's opinion that membership on the planning commission constitutes participation in a civic activity and is permitted by Canon 5B. There is no indication that the judge's participation would reflect adversely on his or her impartiality or interfere with the performance of judicial duties. The latter is especially true, given the infrequency of the meetings and the part-time nature of the judge's position. Furthermore, the planning commission, due to its advisory capacity and its civic nature, is not conducted for the economic or political advantage of its members.

As to the specific limitations listed under Canon 5B, the organization is not likely to be engaged in proceedings that would ordinarily come before the judge inasmuch as the commission deals with questions regarding the development of real estate in the county. Statutorily, a justices' court cannot receive evidence or make any decisions which involve the title to or possession of real property. Utah Code Ann. 79-5-9 (1987). Accordingly, there would be no basis for a proceeding in justices' court involving the planning commission. In addition, since the planning commission serves in an advisory capacity only and is not responsible for the ultimate zoning and land use decisions, there is no indication that the organization would be regularly engaged in adversary proceedings in any court, in the unlikely event that an issue should arise in the justice court which had previously been studied by the planning commission, (i.e.. violation of a zoning ordinance recommended for adoption by the commission) the justice court judge should consider recusing him or herself from hearing the matter.

Finally, the duties of the planning commission do not involve the solicitation of funds or the giving of investment advice which is prohibited by Canon 5B(2) and (3).

As to the judge's compensation, the payment of such a nominal amount does not give the appearance of influencing the judge in the performance of judicial duties or otherwise give the appearance of impropriety. Ten dollars per meeting is not an unreasonable amount for the judge to receive and, since the same amount is received by each member of the commission, there is no concern that the justice of the peace is being paid more for serving on the planning commission than a person who is not a judge. Canon 6A. Similarly, the twenty five cents per mile expense reimbursement for travel from the commission members' homes to the meetings reflects the actual cost of such travel and is, accordingly, permitted by Canon 6B.

This committee previously found that a Justice of the Peace may serve as a member of a local Youth Coordinating Council without violating the Code of Conduct. Informal Opinion No. 89-1. In that opinion, this committee quoted the ABA Commentary to Canon 5 which acknowledges that " [c]omplete separation of a judge from extra-judicial activities is neither possible nor wise, he should not become isolated from the society in which he lives." Due to the changing nature of organizations, the ABA Commentary recommends that a judge regularly reexamine the activities of the organizations with which he is affiliated to determine if it is proper for him to continue his relationship with it. Informal Opinion No. 88-4.

The Advisory Committee on Judicial Activities has held that there is no impropriety or appearance of impropriety in a judge serving on the board or a community health center or in a judge serving in a limited role as a non-aid, nonlegal advisor to an improvement association engaged in housing construction under the National Housing Act. Advisory Opinion No. 62. In Informal Opinion Nos. 759 and 759(a) the American Bar Association's Committee on Ethics and Professional Responsibilities found that part-time judges were subject to the standards applicable to practicing attorneys and were accordingly permitted to serve as officers or directors of civic organizations.

In Informal Opinion 603, the ABA Committee on Ethics and Professional Responsibility stated:

[Members of the judiciary are not required] to separate themselves from the social responsibilities necessarily incident to good citizenship, good moral character and to the religious conviction in which they have been reared, or to refrain from participation in community service. Short of solicitation, or permitting his name to be used in solicitations, there would appear to be a considerable realm of activity in which a judge might appropriately participate in the philanthropic, civic and ecclesiastical life of the community.

It is the opinion of this committee that the Code does not prohibit a justice of the peace from serving as chairman of a county planning commission, since the position does not involve the judge with an organization that is likely to appear in the judge's court, or involve the solicitation of funds or the giving of investment advice.