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.
July 29, 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 corporation for the delivery of health maintenance services unless the organization is a bona fide educational, religious, charitable, fraternal, or civic organization, the organization is unlikely to be engaged in proceedings that would ordinarily come before the judge, and the organization is not regularly engaged in adversary proceedings in any court.
References: MCJC 5A, 5B, 5C(2).
The request concerns the propriety of a circuit court judge serving on the board of directors of a nonprofit corporation which provides health maintenance services.
Article II of the corporation's bylaws indicate, in part, as follows:
"The objectives of the Corporation are to establish and operate ambulatory family health care centers to deliver and arrange for the delivery of family-oriented primary health care services, and in all ways strive to better the lives of the migrant and community patients we serve . . . ."
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."
The fact that the nonprofit corporation is being operated partly for the laudatory purpose of bettering the lives of migrant patients is not dispositive of the issue. The corporation must be considered a bona fide educational, religious, charitable, fraternal, or civic organization before the judge can participate as a board member subject to the conditions of MCJC 5B(1) and (2), regardless of its not-for-profit status. The fact that the HMO services provide a focus on the migrant population may make the organization tantamount to a "civic organization." The facts presented do not indicate that the nonprofit corporation qualifies under this standard.
If the organization is not a bona fide educational, religious, charitable, fraternal, or civic organization within the meaning of MCJC 5B, we look to MCJC 5C(2), which 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."
If the organization falls within MCJC 5C(2), the judge may not participate on the board.