An active senior judge has asked the Ethics Advisory Committee whether it is appropriate to accept an appointment to the Utah Antidiscrimination Advisory Council.

The Utah Antidiscrimination Advisory Council is created pursuant to Utah Code Ann. 34A-5-105. The Council consists of fifteen voting members appointed by the Governor. The fifteen members include five who represent employers, five who represent employees, and five who represent the general public. The duties of the Council are to advise the Labor Commission and the Division of Antidiscrimination and Labor "on issues requested by the commission, division, and the Legislature and also make recommendations to the commission and division regarding issues of employment discrimination and issues related to the administration of [the Utah Antidiscrimination Act]." Section 34A-5-105(7)(a). The Council is not involved in adjudicative proceedings and is not involved in the management of the Antidiscrimination Division. The Committee has not been furnished any by-laws, minutes, or reports of the Council.

We first note that an active senior judge is required to comply with all of the Code provisions, except Canon 4F which deals with a judge acting as an arbitrator or mediator.

Canon 4C(2) allows a judge to "accept appointment to a governmental committee or commission or other governmental position that is concerned with . . . the improvement of the law, the legal system or the administration of justice." The Committee has stated on several occasions that the scope of each committee, commission or position must be reviewed separately to determine whether service is appropriate. See Informal Opinion 94-2. If the scope is limited to the three purposes, service is permitted. If the scope is beyond the purposes in any manner, service is not permitted. The Ethics Committee will typically look to the commission's statutory mandates or by-laws to determine whether service is permitted. However, in this instance the statute is of little assistance. The primary concern for this Committee is whether the subject matter of concern to the Council -- i.e., employment discrimination -- is within the purposes permitted by the Code. We look to other states findings to determine whether the subject matter is appropriate.

The Utah Antidiscrimination Division oversees and reviews issues related to discrimination in Utah work places. Discrimination issues may involve race or ethnicity, age, gender, religion, disability or other protected classes. While we are unable to find any ethics advisory opinions from other states that have dealt directly with this issue, other states have issued opinions on appointments to bodies which discuss discrimination issues. The New York Advisory Committee on Judicial Ethics, in Opinion 87-29, stated that a judge could serve as a member of a county board which was established to coordinate services for developmentally disabled persons involved with the criminal justice system. The New York opinion concerned a situation that dealt specifically with access to criminal justice and therefore service was permitted. Conversely, the New Hampshire Committee on Judicial Conduct, in Opinion 81-1, stated that a judge could not serve on a state council on aging because the council dealt with the problems of aging and the administration of complaints and problems concerning the elderly. While not explicit from this opinion, the New Hampshire committee did not find a sufficient nexus between the group for which there was potential discrimination and the legal or justice system.

The concept of justice is broad and is certainly relevant any time discrimination is being discussed, but in order for service by a judge to be appropriate, the issues must have a direct connection with the legal system. A distinction between the two opinions appears to be in how closely involved the committee or commission is with the legal system. The New York opinion dealt specifically with access to the criminal justice system, while the New Hampshire opinion dealt with discrimination issues that might be faced by the elderly outside of the legal system. The Committee must decide how much of a direct connection between the Council and the legal system there must be for service to be appropriate.

The Committee is of the opinion that the work of a governmental commission or committee must have a direct and primary connection to the legal system in order for service to be appropriate. A more expansive definition does not appear to be contemplated by the code. See Canon 4C(3) ("A judge may serve as an officer . . . of an organization or governmental agency . . . devoted to the improvement of the law, the legal system or the administration of justice . . ."). The Code contemplates that judges may be involved in committees whose work has a primary and direct relationship with "the improvement of the law, the legal system or the administration of justice." It is not enough that the Committee be concerned with justice in a broader sense.

With the limited information available to the Committee concerning the nature of the Antidiscrimination Advisory Council's work, it is difficult to render an unqualified opinion.⁽¹⁾ If the Council is primarily concerned with issues like insuring compliance with the requirements of the Antidiscrimination Act, improving methods for the fair resolution of complaints, and improving the access of victims of discrimination to the courts, service would be permitted. If the Council is more frequently concerned with policy initiatives, employer education, sensitivity education in the workplace, and the like, service would not be permitted.

For better or worse, service by judges on governmental committees and commissions is generally prohibited. A narrow exception exists for non-judicial governmental service if it is "concerned with . . . the improvement of the law, the legal system or the administration of justice." The Committee believes that the exception is limited to nonjudicial governmental service which is primarily and directly concerned with the permitted subjects. If the nexus is less direct, incidental, or tangential, if the permitted subjects are just one aspect of a much broader mission or focus, then service by a judge is not permitted.

1. The composition of the Council tends to suggest service by a judge is questionable. The fifteen members are allocated among employers, employees, and the general public. Committees and commissions where judicial service is permitted are more typically dominated by judges, lawyers, and others in the justice system. See e.g., Informal Opinion 97-6 (Service permitted on Grievance Council of the Utah Division of Child and Family Services. Grievance Council consists of lawyer representing plaintiffs, child welfare representatives, and others familiar with child welfare system.); and Informal Opinion 98-4 (Service permitted on Advisory Board for Children's Justice Centers. Board consists of judges, prosecutors, defense counsel and others involved in children's justice.) But see Informal opinion 94-2 (Service on Judiciary Subcommittee of Utah Substance Abuse and Anti-Violence Coordinating Council questioned, even though half of the members were judges and court employees, since statutory "purposes go far beyond the permissible purposes identified by the Code.")