NOTE: Various references in this ethics opinion to portions of the Michigan Code of Judicial Conduct are no longer accurate due to amendments effective August 1, 2013. Click here to review language added to (which is underlined) and language stricken from (which is indicated by strikethrough) Canons 2, 4, 5, and 7.
June 28, 1993
Full-time and part-time judges are prohibited from serving on boards of directors of any business with or without compensation.
A judge may not serve on the board of directors of a golf course operated as a private corporation, even if the golf course is not operated for profit.
References: MCJC 5A, 5B, 5C(2).
The request concerns the propriety of a circuit court judge serving on the board of directors of a community golf course. The golf course is a private corporation, with 250 shareholders, each owning one share of stock. The golf course is open to the public. There are 15 directors of the corporation each receiving no remuneration. The golf course was constructed with volunteer labor and is not operated for profit.
MCJC 5A states:
"A. Avocational Activities: A judge may write, lecture, teach, speak, and consult on nonlegal subjects, appear before public nonlegal bodies, and engage in the arts, sports, and other social and recreational activities, if such avocational activities do not detract from the dignity of his office or interfere with the performance of his judicial duties."
MCJC 5B states:
"B. Civic and Charitable Activities: A judge may participate in civic and charitable activities that do not reflect adversely upon his impartiality or interfere with the performance of his judicial duties. A judge may serve as an officer, director, trustee, or nonlegal advisor of a bona fide educational, religious, charitable, fraternal, or civic organization, 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 him or will be regularly engaged in adversary proceedings in any court.
"(2) A judge should not individually solicit funds for any educational, religious, charitable, fraternal, or civic organization, or use or permit the use of the prestige of his office for that purpose, but he may be listed as an officer, director, or trustee of such an organization. A judge may, however, join a general appeal on behalf of an educational, religious, charitable, or fraternal organization, or speak on behalf of such organization."
MCJC 5C(2) states:
"(2) Subject to the requirements of subsection (1), a judge may hold and manage investments, including real estate, and engage in other remunerative activity, but should not serve as director, officer, manager, advisor or employee of any business. Provided, however, as to a judge holding office and serving as an officer, director, manager, advisor or employee of any business not prohibited heretofore by law or judicial canon, the effective date of the prohibition contained herein shall be the date of expiration of his current judicial term of office."
The fact that the golf course may be operated for the benefit of the community, and is not designed to earn a profit is not dispositive of the question. Nowhere in MCJC 5B or 5C is the profitability of the organization a factor. Although it may be true that many not-for-profit organizations are also bona fide educational, religious, charitable, fraternal, or civic organizations, that is not always the case. Conversely, the fact that a bona fide educational, religious, charitable, fraternal, or civic organization makes a profit, does not automatically prohibit a judge's participation. For example, a judge's passive investment in a business has been considered not to violate ethics rules. See, CI-383, CI-470, CI-502.
If the golf course were a bona fide educational, religious, charitable, fraternal, or civic organization, the judge could participate on the board as long as the conditions of MCJC 5B(1) and (2) are met. We find nothing in the facts provided that indicates that the golf course qualifies under this standard. The fact that the golf course is open to the public does not equate with it being a "civic" organization. The fact that the golf course is the location for sport or leisure activity does not make it any less a business covered by MCJC 5C.
Although the judge may have a passive investment in the golf course, the judge may not participate on the board.