Question: A part-time justice court judge has asked the Ethics Advisory Committee whether the judge may accept an appointment to the local school district board of education.

Answer: The judge may accept the appointment.

Discussion: A school superintendent has offered a part-time justice court judge a position on the local school district board of education. The judge questions whether service is permitted under the Code of Judicial Conduct. The duties of the board include establishing the objectives of the school; adopting policies, procedures and regulations for governing the school system; establishing salaries; and representing and supporting the schools before county commissioners, State Board of Education, the Legislature and school patrons. Membership on the board is a paid position.

The board is a governmental entity. Membership on governmental entities is governed by Canon 4C(2) and Canon 4C(3). Canon 4C(2) states that "[a] judge shall not accept 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." Because the school board is concerned with issues other than legal issues, service by a judge would typically be inappropriate. However, the applicability section of the Code states that a part-time justice court judge is not required to comply with this section. A part-time justice court judge may therefore accept a governmental position on entities other than those concerned with legal issues.

Canon 4C(3) states that "[a] judge may serve as an officer, director, trustee or non-legal advisor of an organization or governmental agency, which may include a constitutional 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 civic organization not conducted for profit." A part-time justice court judge is required to comply with this provision. We noted in Informal Opinion 95-3, which discussed service on the state Board of Regents, that this Canon is also relevant in determining whether a judge may serve a governmental organization that is not concerned with the law or the legal system. The difficulty that is presented is whether this Canon prohibits a part-time judge from serving on a government education board, even though service would be permitted under Canon 4C(2).

The Committee believes that exempting part-time justice court judges from Canon 4C(2) is intended to permit these judges to participate in governmental service beyond governmental boards that are concerned solely with the law and the legal system. Canon 4C(2) is phrased in proscriptive terms, while Canon 4C(3) is phrased in permissive terms. The primary focus of Canon 4C(2) is to limit governmental service. The primary focus of Canon 4C(3) is to proscribe a judge’s activities when a judge serves on a governmental or civic organization - e.g. limits on fund-raising and membership solicitation. Once it is determined that service is permitted under Canon 4C(2) (or that the Canon does not apply as in this situation), Canon 4C(3) serves only to limit a judge’s activities on the governmental board. A part-time judge may therefore serve on a governmental board, subject to the restrictions of Canon 4C(3). These restrictions include prohibitions against fund-raising and membership solicitation and, perhaps most importantly, a prohibition against serving an entity that is a regular litigant in any court.

In addition to the specific proscriptions in Canon 4C(3), a judge must consider other factors before accepting the appointment. The judge’s service must not affect public confidence in the integrity and impartiality of the judiciary. The Committee does not believe that those factors are at issue with the school board, but the judge must make certain before accepting the appointment. The Committee also notes that there may be statutory and/or constitutional issues concerning a part-time judge’s service to an executive branch entity. The Committee cannot offer an opinion on those issues, other than to state that if service is illegal, it would also be unethical. The Committee encourages the judge to consult her legal advisors as to whether service is authorized.

Part-time justice court judges are typically from smaller communities in which community leaders often have more than one role. Under the Code of Judicial Conduct, a part-time justice court judge may also participate in different roles.