Can a judge start and chair a court arts committee, work with a nonprofit arts foundation, and accept donated artwork for the courthouse?

Currency note

This opinion was issued in 2004 under the former Ohio Code of Judicial Conduct, which the Board flagged as superseded by the Ohio Code of Judicial Conduct effective March 1, 2009. The extra-judicial-activity and fundraising provisions discussed here have been renumbered and revised in the current Code. Treat this page as historical context, not current guidance. Verify against the current Ohio Code of Judicial Conduct before relying on any specific rule mentioned here.

Plain-English summary

The Board addressed a municipal court judge's involvement in placing artwork in the court's historic building. It concluded that the judge may establish and chair an arts committee to commission an artist and decide upon artwork for the building.

The Board also approved two related steps. The judge may collaborate, on behalf of the court's arts committee, with a public arts foundation, a nonprofit corporation that would fund the artist and the artwork through the fundraising efforts of private citizens. And the judge may accept, on the court's behalf, a donation of artwork for the court's historic building. The Board treated the project as a permissible civic and court-improvement activity, distinguishing it from a personal benefit to the judge.

Common questions

Q: Can a judge start and chair a committee to put artwork in the courthouse?

A: Yes. The opinion concluded that a municipal court judge may establish and chair an arts committee to commission an artist and choose artwork for the court's historic building.

Q: Can the judge work with a nonprofit foundation that raises private money for the artwork?

A: Yes. Per the opinion, the judge may collaborate on the arts committee's behalf with a nonprofit public arts foundation that funds the artist and artwork through private fundraising.

Q: Can the court accept donated artwork?

A: Yes. The opinion concluded the judge may accept, on the court's behalf, a donation of artwork for the court's historic building.

Background and rules framework

The opinion applies the former Ohio Code of Judicial Conduct provisions on a judge's extra-judicial and civic activities and on fundraising (former Canon 4), read with Canon 2 (avoiding impropriety and its appearance). These provisions are addressed, renumbered and revised, in the current Code.

Citations and references

Rules of Judicial Conduct:

• Former Ohio Code of Judicial Conduct Canon 4 (extra-judicial activities; fundraising); Canon 2

See also

• Ohio BPC Op. 2004-005: A Judge Declining a Donation of Firearms to the Court for Security
• Ohio BPC Op. 1987-009: Retired Judge on a Fund-Raising Restoration Committee
• Ohio BPC Op. 1987-003: Judge on a Foundation Board

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-04-006.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
65 SOUTH FRONT STREET, 5TH FLOOR, COLUMBUS, OH 43215-3431
(614) 387-9370 (888) 664-8345 FAX: (614) 387-9379
www.sconet.state.oh.us
OFFICE OF SECRETARY
OPINION 2004-6
Issued August 6, 2004

[Former CJC Opinion-provides advice under the former Ohio Code of Judicial Conduct which is
superseded by the Ohio Code of Judicial Conduct, eff. 3/1/2009.]

SYLLABUS: A municipal court judge may establish and chair an arts
committee to commission an artist and decide upon artwork for the court’s
historic building. A municipal court judge may collaborate on behalf of the
court’s arts committee with a public arts foundation, a nonprofit corporation that
will fund the artist and the artwork through the fundraising efforts of private
citizens. A municipal court judge may accept on behalf of the court a donation of
artwork for the court’s historic building.

OPINION: The opinion addresses questions regarding a judge establishing an
arts committee for the court’s historic building.

   Is it proper for a municipal court judge to establish and chair an
   arts committee to commission artists and to decide upon artwork
   for the historic court building?

   Is it proper for a municipal court judge to collaborate on behalf of
   the court’s arts committee with a public art foundation, a nonprofit
   corporation that will fund the artists and artworks through private
   fundraising efforts?

   Is it proper for a municipal court judge to accept, on behalf of the
   court, a donation of artwork for the historic court building?

A municipal court judge wishes to establish and chair an arts committee for the
historic building in which the municipal court resides. The purpose of the arts
committee is to decide upon artwork for the court building and to commission
artists. Already established in the community is a public arts foundation, a
nonprofit corporation, set up to help administer funds for public art around the
city’s court square. The judge anticipates that interested citizens will raise
private funds for the commissioned artists and their artwork and that the public
arts foundation will administer the funds to the artists.

Forming and chairing a court’s arts committee

A courthouse is a symbol of justice in a community. From the courthouse, a
judge administers justice, often with profound impact upon individuals and

Op. 2004-6 2

society. A judge’s formation and leadership on a committee supporting artwork
for a historic building housing the court is an activity that enhances the law, the
legal system, and the administration of justice. Under Canon 2, “[a] judge may
engage in activities to improve the law, the legal system, and the administration
of justice, provided those activities do not cast doubt on the judge’s capacity to
act impartially as a judge, demean the judicial office, or interfere with the proper
performance of judicial duties.”

A judge’s chairing of the art committee for the court’s historic building would not
cast doubt on the judge’s ability to act impartially, would not demean the judicial
duties, and would not (unless the committee meetings were excessive) interfere
with the proper performance of judicial duties.

Collaboration on behalf of a court’s arts committee with a public art
foundation, a nonprofit corporation

As chair of the arts committee, a judge would collaborate on behalf of the court’s
arts committee with the public arts foundation, a nonprofit corporation, on plans
for funding the artists and artwork through private fundraising efforts of citizens.

Canon 2(B)(2)(a) prohibits a judge’s personal participation in the solicitation of
funds or other fund-raising activities, but allows that a “judge may assist an
organization in planning fundraising and may participate in the management and
investment of the organization’s funds.” Canon 2(B)(2)(b) states that a “judge
may make recommendations to public and private fund-granting organizations
on projects and programs concerning the law, the legal system, or the
administration of justice.”

A judge’s collaboration on behalf of the court’s arts committee with the public
arts foundation, a nonprofit corporation, as to the court’s art projects is proper
because it is a planning and recommending activity not a personal participation
in the solicitation of funds by the judge.

Accepting a donation of artwork to the court

Both the Ohio Code of Judicial Conduct and Ohio Ethics Law are pertinent to the
Board’s consideration of whether a judge may accept a donation on behalf of the
court.

Canon 2(C)(5) of Ohio Code of Judicial Conduct restricting gifts to judges is not
applicable herein. The artwork is a donation to the court: It is not a gift to an
individual judge or judicial employee. Although the judges and judicial
employees may (or may not) enjoy the beauty of the artwork, it is not given as a
gift for their personal use.

Op. 2004-6 3

Canon 3(C) is applicable, because acceptance of a donation of artwork to a court
requires the exercise of a judge’s administrative duties. Canon 3(C)(1) requires
that the discharge of administrative duties be diligent and without bias or
prejudice. As part of making a diligent decision about acceptance of a donation, a
judge must consider whether there is a need for the donated items.

Canon 2 is also applicable. A judge must consider the requirements of Canon 2
that “[a] judge shall act at all times in a manner that promotes public confidence
in the integrity and impartiality of the judiciary.” A judge’s decision to accept a
donation on behalf of a court must be made with due consideration for the
perception it may create to the public. Offers of great generosity and magnitude
may create appearances of partiality and impropriety.

In addition, a judge must consider DR 8-101(A)(3) of the Ohio Code of
Professional Responsibility: a lawyer who holds public office is not permitted to
“[a]ccept any thing of value from any person when the lawyer knows or it is
obvious that the offer is for the purpose of influencing his [her] action as a public
official.” Judges are lawyers and are subject to the Ohio Code of Professional
Responsibility. See Gov.Jud R. I §1. A judge must consider whether a proposed
donation is an attempt to influence the judge. If a judge knows that the purpose
of a donation is to influence judicial actions, the judge must not accept the
donation.

Though a donation of artwork through a nonprofit public arts foundation to a
court for the courthouse building may be generous, it is unlikely to interfere with
or influence the discharge of judicial duties and therefore does not create an
appearance of impropriety.

Under the facts presented, it is the Board’s view that a judge does not violate the
Ohio Code of Judicial Conduct by accepting a donation of artwork from a public
arts foundation for a historic court building, so long as the judge’s decision to
accept the artwork is made diligently without bias or prejudice, so long as the
offer is not an attempt to influence the judge and does not interfere with or
influence the discharge of judicial duties, and so long as acceptance of the
donation complies with Ohio Ethics Law.

Ohio Ethics Law is set forth in Chapter 102 and related statutes Sections 2921.01,
2921.42, 2921.421, and 2921.43 of the Ohio Revised Code. The Board of
Commissioners on Grievances and Discipline is the appropriate ethics
commission to render advice on Ohio Ethics Law for matters relating to judicial
officers and employees. See Ohio Rev.Code Ann §102.01(F)(2) (West 2002) and
§102.08 (West 2002). For purposes of Ohio Ethics law, judicial officers and
judicial employees are “public officials and employees” and courts are “public
agencies.” Ohio Rev.Code Ann. §102.01(B), (C) (West 2002).

Op. 2004-6 4

Pertinent to this opinion is Section 102.03 of the Ohio Revised Code, prohibiting
misuse of public office to secure a thing of value that manifests a substantial and
improper influence with respect to official duties.

   Section 102.03

   (D) No public official or employee shall use or authorize the use of
   the authority or influence of office or employment to secure
   anything of value or the promise or offer of anything of value that is
   of such a character as to manifest a substantial and improper
   influence upon the public official or employee with respect to that
   person’s duties.

   (E) No public official or employee shall solicit or accept anything of
   value that is of such a character as to manifest a substantial and
   improper influence upon the public official or employee with
   respect to that person’s duties.

  (F) No person shall promise or give to a public official or employee
  anything of value that is of such a character as to manifest a
  substantial and improper influence upon the public official or
  employee with respect to that person’s duties.

Ohio Rev.Code Ann. §102.03 (D), (E), (F) (West 2002).

To invoke the restrictions of Section 102.03(D), (E), and (F): 1) there must be a
thing of value; and 2) the thing of value must be of such a character as to manifest
a substantial and improper influence with respect to official duties.

What is “anything of value?” “Anything of value” includes among other things,
money, goods, chattels, any interest in realty, a promise of future employment,
and every other thing of value. Ohio Rev.Code Ann §1.03 (West 2004) and
§102.01(G) (West 2002).

What is a “substantial and improper influence?” A thing of value that is more
than nominal or de minimis is a “substantial” influence. A thing of value from a
party interested in matters before, regulated by, or doing or seeking to do
business with the public agency is considered an “improper” influence.

As interpreted by the Ohio Ethics Commission in Opinion 89-002, R.C. 102.03 is
not applicable when the thing of value goes to a public agency as opposed to an
individual.

   R.C. 102.03 has been interpreted to apply only to those situations
   where a public official or employee, or someone to whom he is
   related in his private capacity, would receive a thing of value. R.C.
   102.03(D) and (E) prohibits individuals—public officials and
   employees—from improperly accepting, soliciting, or using their

Op. 2004-6 5

  position to secure anything of value. The prohibitions of R.C.
  102.03(D) and (E) do not apply to the receipt of items by the state,
  or any agency, board, or commission thereof. Similarly, R.C.
  102.03(F) prohibits donations to individuals—public officials and
  employees—rather than to the state or an agency thereof.

Ohio Ethics Commission, Op. 89-002 (1989) (permitting private companies to
donate industrial and safety equipment to the Industrial Commission, so long as
no official or employee of the Commission benefits personally from the
equipment, and so long as the donation is voluntary).

This Board agrees. Donations of things of value to a court are distinct from
donation of things of value to individual judicial officers and employees, and are
not prohibited by Section 102.03.

The facts addressed herein—donations of artwork to a court—are distinct from
the facts addressed by the Board of Commissioners on Grievances and Discipline
in Opinions 95-4 and 92-14. At issue in Opinion 95-4 was an offer of entire
volumes of the Ohio Revised Code to individual justices and judges. At issue in
Opinion 92-14 was financial and other support to a magistrate association to
provide individual referees and magistrates with low registration fees, free meals,
and free recreational activities. In Op. 95-4 the Board advised that a
complimentary offer of the entire revised code for each justice and judge in Ohio
from a publisher affiliated with the court’s official publisher and doing business
with the court is improper. Under Section 102.03(D) and (E), the offer is a thing
of value of such a character as to manifest a substantial or improper upon a
justice or judge with respect to their official duties. Under the Ohio Code of
Judicial Conduct, the offer was of such generosity and magnitude as to create an
appearance of impropriety. See Ohio SupCt, Bd Comm’rs Grievances &
Discipline, Op. 95-4 (1995). In Opinion 92-14, the Board advised it is improper
under Section 102.03 (D) and (E), Canon 2(B), DR 8-101(A)(3), and DR 5(B)(3)
for referees and magistrates who are members of a statewide association of court
referees and magistrates to solicit, accept, or use the authority of office to secure
financial or other support, from a law firm or from a business or an individual
interested in matters before, regulated by, or doing or seeking to do business with
the courts in which the referees or magistrates serve, in order to provide low
registration fees, hospitality rooms, free meals, and free recreational activities for
the referees, magistrates and spouses attending the annual educational meeting
of the association. Ohio SupCt, Board of Comm’rs on Grievances & Discipline,
Op. 92-14 (1992).

Conclusion

Under the facts presented, there is no bar under the Ohio Code of Judicial
Conduct or Ohio Ethics Law to a judge accepting donations of artwork to the
court’s historic building. The donation is to the court, not to an individual judge
or court employee. There is no personal benefit to the judge or to the court

Op. 2004-6 6

employees. The donation does not appear to be an attempt to influence the
judge. The donation is voluntary. It is unlikely that the donation of artwork
would cause public perception of a conflict for the court, its officers, and
employees.

Thus, the Board advises as follows. A municipal court judge may establish and
chair an arts committee to commission an artist and decide upon artwork for the
court’s historic building. A municipal court judge may collaborate on behalf of
the court’s arts committee with a public arts foundation, a nonprofit corporation
that will fund the artist and the artwork through the fundraising efforts of private
citizens. A municipal court judge may accept on behalf of the court a donation of
artwork for the court’s historic building.

This is an informal, non-binding advisory opinion, based upon the
facts presented and limited to questions arising under the Code of
Judicial Conduct, Ohio Ethics Law and related statutes. Pursuant to
Section 102.08 of the Ohio Revised Code, the requester may
reasonably rely on the opinion as it applies to Ohio Ethics Law and
related statutes.