Commonwealth of Virginia Judicial Ethics Advisory Committee Opinion 00-9

Date Issued: November 8, 2000

Propriety of a Judge's Serving as Officer or Director of Property Owners Association

All opinions shall be advisory only, and no opinion shall be binding on the Judicial Inquiry and Review Commission or the Supreme Court in the exercise of its judicial discipline responsibilities. However, the Judicial Inquiry and Review Commission and the Supreme Court may in their discretion consider compliance with an advisory opinion by the requesting individual to be evidence of a good faith effort to comply with the Canons of Judicial Conduct provided that compliance with an opinion issued to one judge shall not be considered evidence of good faith of another judge unless the underlying facts are substantially the same. Order of the Supreme Court of Virginia entered January 5, 1999.

This page last modified: November 20, 2000

  • May an active judge serve as an officer and/or director of a Property Owners Association related to the judge's residence?

    Answer: Yes, provided that serving in such positions does not interfere with the judge's judicial duties; that it is not likely the association will be engaged in litigation that would ordinarily come before his court; and that he not act as the association's legal advisor nor personally participate in the solicitation of funds.

  • A judge has asked if it would be proper to serve as an officer or director of a homeowners association incidental to his residence. His house is in a small subdivision surrounding a golf course. There are 35 lots including condominiums and single family dwellings. The golf course is not owned by the homeowners, there is very little common area, it is not operated for profit, and there is no fund raising involved except for the collection of monthly maintenance fees.

  • Canon 3A provides in part:

    A. Judicial Duties in General. The judicial duties of a judge take precedence over all the judge's other activities.

    Canon 4C(3)(a) provides in part:

    3. A judge may serve as an officer, director, trustee or non legal advisor of a civic organization not conducted for profit, subject to the following limitations and the other requirements of this Code.

    1. A judge shall not serve as an officer, director, trustee or non legal advisor of a governmental, civic, or charitable organization if it is likely that the organization:
       
      1. will be engaged in proceedings that would ordinarily come before the judge, or
         
      2. will be engaged frequently in adversary proceedings in the court of which the judge is a member or in any court subject to the appellate jurisdiction of the court of which the judge is a member.

    Canon 4D(1-3) provides:

    D. Financial Activities.

    1. A judge shall not engage in financial and business dealings that:
       
      1. may reasonably be perceived to exploit the judge's judicial position, or
         
      2. involve the judge in frequent transactions or continuing business relationships with those lawyers or other persons likely to come before the court on which the judge serves. 
    2. A judge may, subject to the requirements of this Canon, hold and manage investments of the judge and members of the judge's family, including real estate.
       
    3. A judge shall not serve as an officer, director, manager, general partner, advisor or employee of any business entity except that a judge may, subject to the requirements of this Canon, manage and participate in:
       
      1. a business closely held by the judge or members of the judge's family, or
         
      2. a business entity primarily engaged in investment of the financial resources of the judge or members of the judge's family.

    The general standard set by Canon 3A is more finely defined by Canon 4C(3)(a)'s limitations which prohibit serving if it is likely that the organization will be engaged in proceedings likely to lead to litigation before the judge or his court or an appellate court to which the judge's court is subject to jurisdiction. See New York Advisory Opinion No. 98-02.

    Canon 4D(3) prohibits a judge from serving as an officer or director of any business entity not closely held by the judge or the judge's family.

    Canon 4D(2) permits a judge to hold and manage investments and real estate. The Commentary clarifies that such ownership may be with others as long as there is compliance with Canons 4D(1) and (2).

    While a property owners association is not clearly a "civic" organization permitted under Canon 4C(3) and is not a business entity prohibited under Canon 4D(3), it has attributes of both but is more similar to a real estate holding or investment permitted by Canon 4D(2). The activities are confined to the saving of expense rather than the generation of profit and while other homeowners may share in the benefits, the judge would still find it necessary to assume these duties living in a private home not associated with other property owners. See U.S. Advisory Opinion 29 (1973), revised Jan. 16, 1998.

    Finally, judges should remain mindful of Canons 2 and 2B to avoid the appearance of impropriety in dealing with venders and contractors providing services to the association and in the judge's relationship with other residents regarding enforcement of rules, regulating covenants and the assessment, collection and allocation of dues and fees.

  • Canons of Judicial Conduct, Canons 2, 2B, 3A, 4C, (3)(a), 4D(1),4D(2), and 4D(3).

    New York Advisory Op. No. 98-02, revised Jan. 16, 1998.

    U.S. Judicial Conference Committee on Codes of Conduct, Advisory Op. 29 (rev. 1998).