The Ethics Advisory Committee has been asked for its opinion as to whether a judge may continue to serve as a member of the Board of Regents.

We begin our inquiry by exploring the nature of the Board of Regents and its relationship to the State. The State Board of Regents is endowed with "the power to govern the state system of higher education consistent with state law: and to that end, "is vested with the control, management, and supervision of [the nine state colleges and universities]." Utah Code Ann. 53B-1-101(2), -103(2) (1994). The Governor of the State, with the consent of the Senate, appoints fifteen of the Board's sixteen members. Utah Code Ann. 53B-1-104(1) (1994). In addition, the Utah Governmental Immunity Act defines the term "State" to include "any office, department, agency, authority, commission, board, institution, hospital, university, or other instrumentality of the state." Utah Code Ann. 63-30-2(9) (1993) (emphasis added). Accordingly, a judge's service on the Board of Regents constitutes governmental service, and therefore, is governed by Canon 4C(2) & (3), Utah Code of Judicial Conduct.⁽¹⁾

A judge's service on the Board of Regents is not permissible under Canon 4C(2), which prohibits a judge from "accept[ing] appointment to a governmental committee or commission or other governmental position that is concerned with issues of fact or policy on matters other than the improvement of the law, the legal system or the administration of justice." Id. (emphasis added). The Board of Regents is concerned with policy issues pertaining to the governance of higher education, rather than with the "improvement of the law, the legal system or the administration of justice."

Canon 4C(3) also precludes a judge from serving on the Board of Regents. Canon 4C(3) provides, in part, that subject to specific limitations,

[a] judge may serve as an officer, director, trustee or non-legal advisor of an organization or governmental agency, which may include a constitution revision commission, devoted to the improvement of the law, the legal system or the administration of justice, or of an educational, religious, charitable, fraternal or civil organization not conducted for profit . . . .

At first blush, it may appear that service is permissible under Canon 4C(3) because the Board of Regents could be considered an educational or civil organization. However, a closer analysis of the language of the Canon reveals otherwise. The first part of Canon 4C(3) parallels Canon 4C(2) in permitting a judge to serve specific roles on any "organization or governmental agency devoted to the improvement of the law, the legal system or the administration of justice." Id. (emphasis added). The second part of Canon 4C(3) permits a judge to serve in specified capacities on "an educational, religious, charitable, fraternal or civil organization not conducted for profit." Id. (emphasis added). Significantly, the phrase "or governmental agency" is not carried over to the second part of the Canon. Simply stated, this part of the Code envisions two broad categories: private organizations and governmental agencies. If an entity's focus is on law, then a judge may serve whether the entity is a governmental agency or a private organization. Absent such a legal nexus, a judge may not serve in other branches of government. However, a judge's association in nongovernmental organizations is less restrictive. Under Canon 4C(3), subject to specific limitations, "[a] judge may serve [on] . . . an educational, religious, charitable, fraternal or civic organization not conducted for profit," with no requirement of a connection to matters of law.

Although the Board of Regents addresses both civic and educational issues, the Board is not a nongovernmental educational or civic organization. Instead, the Board of Regents is a governmental entity, and as such a judge's membership on this governmental body is precluded because the Board of Regents has a mission other than "the improvement of the law, the legal system or the administration of justice." Id.

Any other interpretation of Canon 4C(3) would render meaningless the separate analysis contained in Canons 4C(2) & (3) and undercut the restrictions imposed by Canon 4C(2). If we were to conclude that the Board of Regents, despite its governmental character, were an "organization" for purposes of Canon 4C(3), the exceptions would soon swallow the rule. Simply put, a judge would be permitted to serve in any governmental "organization" so long as that organization was either "educational, religious, charitable, fraternal or civic: and conducted "not for profit."⁽²⁾

We conclude that the Board of Regents is a governmental body not "devoted to the improvement of the law, the legal system or the administration of justice," as that concept is used in the Code. We also conclude it is not an educational or civic "organization" for purposes of Canon 4C(3). Accordingly, it is the Committee's opinion that Canon 4C(2) & (3) preclude a judge from serving on the Board of Regents.

Members of the Committee are divided on the question of whether judges ought to be able to serve the citizens of this State in nonjudicial governmental capacities such as by serving on the Board of Regents. A majority agree, however, that the Code of Judicial Conduct, as it has been promulgated by Utah Supreme Court, does not permit such extra-judicial governmental service unless the particular agency's mission is focused on the law.

* * * *

One Committee member, while joining in the foregoing opinion, also notes as follows:

A judge's service on the Board of Regents may also be prohibited by Article V, section 1, of the Utah Constitution, which states:

The powers of the government of the State of Utah shall be divided into three distinct departments, the Legislative, the Executive, and the Judicial; and no person charged with the exercise of powers properly belonging to one of these departments, shall exercise any functions appertaining to either of the others, except in the cases herein expressly directed or permitted.

The Board of Regents, all but one of whose members are appointed by the Governor and confirmed by the Senate, exercises executive powers over state institutions. As such, I believe that if a judge, who also must be appointed by the Governor and confirmed by the Senate, is a member of the Board of Regents, he or she may be empowered to exercise both judicial and executive functions in violation of the Utah Constitution. I recognize that the role of this Committee is to offer its opinion concerning the ethical propriety of judicial conduct. See Canon 2 (stating [a] judge shall avoid impropriety and the appearance of impropriety in all activities.").

______________________________________

1. The question of a judge's governmental service outside the judiciard presents a problematic policy question. On the one hand, the judiciary represents a reservoir of talented and committed individuals whose very status as judges may enhance their ability to serve. On the other hand, nonjudicial service tends to erode the appearance of impartiality which is essential to judging itself. The official commentary to the model code provision identical to our Canon 4C(2) elaborates on this dilemma:

Valuable services have been rendered in the past to states and the nation by judges appointed by the executive to undertake important extra-judicial assignments. The appropriateness of conferring these assignments on judges might be reassessed however in light of the demands on judicial manpower created by today's crowded dockets and the need to protect the courts from involvement in extra-judicial matters that may prove to be controversial. Judges should not be expected or permitted to accept governmental appointments that could interfere with the effectiveness and independence of the judiciary.

Model Code of Jud. Conduct, Canon 5G commentary (quoted in Jeffrey M. Shaman, et al, Judicial Conduct and Ethics 259-60 n.30 (1990). Butsee Doing Utah Justice, Final Report (Commission on Justice in the Twenty First Century), Dec. 1991, at 47 (noting that judges should be encouraged to be more involved in government and community matters).

2. Perhaps the broad definition of "civic" most clearly illustrates the problems inherent in including the Board of Regents, a governmental body, as an educational or civic organization for purposes of Canon 4.

 A "civic" organization isconcerned with or contributory to general welfare and the betterment of public life for the citizenry of a community or enhancement of its facilities; esp: devoted to improving health, education, safety, recreation, and morale of the general public through nonpolitical means. . . . [or] essential to or obligatory on citizens in connection with the administration of laws and regulations: relating to government.

Webster's Third New International Dictionary 412 (1986). Thus, if we were to conclude that the Board of Regents, or any other governmental body, could be considered a "civil organization" for purposes of Canon 4C(3), then 4C(2) would be rendered meaningless as all governmental bodies are, by their very definition, civic in nature--each is designed to promote the general welfare of the citizenry of a community. The scheme of Canon 4C makes sense only if the word "organization" is viewed as contrasting with, rather than as including the term "governmental agency."