The Honorable Richard E. Gardner, Jr.
Chancellor, 5th Judicial District
P.O. Box 2691
Russellville, AR 72811

RE: Advisory Opinion # 94-09

Dear Judge Gardner:

You ask for our opinion as to whether you may serve on a fund-raising ad hoc committee of a local, or area, boys/girls club to raise funds to construct new building facilities. The facts you furnish us are as follows, those not necessary for this purpose omitted. You wish to know if this extra-judicial activity will violate our 1993 Code of Judicial Conduct, particularly Canon 4.

You have served as a member of the Board of Directors of this Club, a civic organization operated not for profit, since its creation. It now has membership in excess of 2,000. This Board has decided that new building facilities for Club use will be helpful to further its purposes, and has developed a fund-raising plan to raise the funds needed to erect it. Property must be purchased upon which the building and its equipment will be constructed and installed. This fund-raising plan includes two features: (1) for one of these governments to issue bonds, and to appropriate the funds derived from their sale to the Board to use for this purpose; and (2) for one of these governments to appropriate to the Board for this purpose monies it receives from a recent voter-approved increase in the sales tax. The Board has created a committee to lobby this plan into fruition, which will include contacts with the County Judge, Quorum Court, Mayor, City Council, and other officials of these governments.

Canon 4C(3)(b) reads as follows:

"A judge as an officer, director, trustee or non-legal advisor, or as a member or otherwise; (i) may assist such an organization in planning fund-raising and may participate in the management and investment of the organization’s funds, but shall not personally participate in the solicitation of funds or other fund-raising activities, except that a judge may solicit funds from other judges over whom the judge does not exercise supervisory or appellate authority. . . ."

The Preamble to this 1993 Code contains the following: ". . .When the text uses ‘shall’ or ‘shall not’, it is intended to impose binding obligations the violation of which can result in disciplinary action". The text of the above quoted Canon provides, ". . . but shall not personally participate in the solicitation of funds . . ." And so it is that you may not serve on this committee as chairman, or otherwise, without being in clear violation of this cited rule.

The reason for this prohibition, so say the experts and advisory opinions, is to avoid misuse of the judicial office. It is reasoned that potential donors either may be intimidated into making contributions when solicited by a judge, or that they may expect future favors in return for their donations(s). The possibility of corruption in this judicial activity, is opined, is remote, but even so, not unknown.

Once before this committee had occasion to study this somewhat relaxed total ban of the 1972 Code (see its Canon 5B) on judicial fund-raising (see JEAC 91-05-01, 11-19-91), and we there determined that Canon 4C of our new Code will permit a judge to solicit funds from relatives and from other judges over whom the judge does not exercise supervisory or appellate authority. We determined that in the light of the facts there furnished it could not reasonably be perceived as coercive or involving the aura of favoritism. To the contrary, this cannot be said of the situation you describe. Also, you state that both of these governments are likely litigants in your court. If you served on this committee, it is most likely litigants in your court. If you served on this committee, it is most likely you would be required to recuse from all cases in which these governments become involved. It is improper for a judge to place himself/herself in any position that will, perhaps, limit his/her ability to perform the duties of judicial office.

If we can be of further service, please advise.

Sincerely,

Bruce T. Bulllion

For the Committee

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