Wednesday, May 3, 2017
Ethics Committee: Judges Should Not Serve on Charter School Boards
By a MetNews Staff Writer
A judicial officer should not serve on the board of a nonprofit charter school, the Committee on Judicial Ethics Opinions said yesterday.
In Formal Opinion 2017-011, the CJEO said service on such boards should be avoided, in the absence of a definitive determination that charter schools—which are organized and governed according to statute and are publicly funded—are not government agencies. If they are government agencies, the CJEO explained, their board members would be public officials, and the state Constitution prohibits a judicial officer from serving in a nonjudicial public office.
The precise status of charter schools, the committee explained, remains unclear because “California courts have held that charter schools are public entities for some purposes (for example, for receiving public monies) but are private entities for other purposes (such as for purposes of the Government Claims Act), and that charter schools officials are equivalent to officers of public schools.”
The committee noted that the issue has arisen in other states, and that opinions have been divided. It cited an opinion of the New York Advisory Committee on Judicial Ethics that judges should not serve on charter school boards, lest they become involved in “highly controversial issues that could interfere with a judge’s judicial duties and compromise his/her appearance of impoartiality.”
The Arizona Supreme Court Judicial Ethics Advisory Committee, on the other hand, as held that charter school boards are not governmental bodies, and that judges are not prohibited from serving on them, subject to other provisions of the canons. The CJEO noted that similar positions have been taken by ethics committees in Connecticut, Delaware, Colorado, and South Carolina, although the last two states expressly limited that opinion to situations where the school is outside the judge’s territorial jurisdiction.
The CJEO also pointed out that none of those opinions addressed the issue of whether such service violated a state statutory or constitutional prohibition on dual office holding. Not only does California have such a prohibition, the committee emphasized, the relevant section provides that a person who accepts a second office is automatically deemed to have resigned from the first.
”Given the grave risk of automatic resignation from judicial office upon acceptance of a charter school board position, if such a position is ultimately found to be a public office, the committee advises against service on a charter school board,” the committee concluded.
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