Ohio Board Advisory Opinion Op 09-011

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CQhe Supreme Court of Pbia

BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE

65 SOUTH FRONT STREET, 5" FLOOR, COLUMBUS, OH 43215-3431
(614) 387-9370 (888) 664-8345 FAX: (614) 387-9379
www.supremecourt.ohio.gov

OFFICE OF SECRETARY

OPINION 2009-11
Issued: December 4, 2009

SYLLABUS: It is ethically proper under the Ohio Code of Judicial Conduct for a judge
to make a charitable contribution from personal or judicial campaign funds. A judge’s
name, with or without the title “judge” or “honorable” may be recognized in the same
manner as other contributor’s names are recognized—Rule 3.7(A)(5) allows some name
recognition in connection with participation in activities sponsored by educational,
religious, charitable, fratemal, or civic organizations not conducted for profit if it does
not reflect adversely on the judge’s independence, integrity, or impartiality. A charitable
contnibution from judicial campaign funds may be made in an election or non-election
year—there is no ethical restriction. But, a judge’s charitable contribution from judicial
campaign funds must be in compliance with R.C. 3517.08(G) and reported as an
expenditure as required by R.C. 3517.10. A chantable contribution from personal funds
may be made in an election or non-election year—there is no ethical restriction. But, a
judge should be aware that although a charitable contribution from personal funds is
presumed to be made for chantable purposes, the Ohio Elections Commission has
advised in Op. 90-1 that the presumption may be rebutted and the reporting requirements
of state campaign finance law may be implicated if the charitable contibution from
personal funds is made for the purpose of promoting a present or possible future election.
Whether a charitable contribution is made for the purpose of promoting a present or
possible future election is a factual and legal determination outside this Board’s advisory
authority. Pertinent factors identified by Ohio Elections Commission in Opinion 90-1 are
cited within this Board’s opinion.

OPINION: This opinion addresses a question regarding judges’ charitable contributions
of personal or campaign funds to non-profit organizations in an election or non-election
year.

Is it proper for a judge to make a charitable contibution from personal or
campaign funds to an educational, religious, charitable, fratemal, or civic
organization not conducted for profit in an election or a non-election year
even though the contnbution might result in some name recognition for
the judge?

Op. 2009-11 2
A judge’s use of personal or campaign funds for charitable contributions implicates both
the Ohio Code of Judicial Conduct and Ohio’s campaign law set forth in Chapter 3517 of
the Ohio Revised Code. The Board of Commissioners on Grievances and Discipline has
advisory authority pursuant to Gov.Bar R. V(2)(C) as to the Ohio Code of Judicial
Conduct. The Ohio Elections Commission has advisory authority pursuant to R.C.
3517.153(D) as to state campaign law. In this opinion, this Board will advise as to the
ethical question presented to it, relying on the Ohio Elections Commissions advice as to
the application of the law.
Judges, like other citizens and community leaders, are sometimes asked to contribute
financial support to educational, religious, charitable, fraternal, or civic organizations not
conducted for profit. And, judges, like other individuals, may wish to contribute even
when not specifically asked to do so by the charitable organization.
A judge, like any other contributor, might receive some name recognition in return for
making a contribution to a non-profit organization. For example, a judge might be asked
to sponsor a hole at a golf outing; to place a patron advertisement in an event program; or
to cover the expenses of sport uniforms, event t-shirts, or event banners. The opportunity
then might arise for the judge’s name to appear on the sign at the golf hole; in an
advertisement in the program; on the sports uniforms, event t-shirts, or the event banners;
or in a simple listing with other contributors in an event program.
Three threshold ethical issues are: May personal or campaign funds be used to make
charitable contributions; is some name recognition for the contribution permissible; and
does it matter whether the contribution occurs in an election or non-election year? These
ethical issues are addressed herein.
Providing financial support through a contribution is one way for a judge to participate in
the activities of a non-profit organization. Under Rule 3.7 of the Ohio Code of Judicial
Conduct, a judge is permitted to participate in the activities of educational, religious,
charitable, fraternal, or civic organizations not conducted for profit, subject to the
requirements set forth in Rule 3.7 and Rule 3.1. A judge should review these rules in
their entirety, but one fundamental requirement of Rule 3.1(C) is that a judge should not
“[p]articipate in activities that would appear to a reasonable person to undermine the
judge’s independence, integrity, and impartiality.” Before making any contribution a
judge should give consideration to whether the contribution has an impact upon the
judge’s independence, integrity, and impartiality.
The Ohio Code of Judicial Conduct does not prohibit a judge from contributing personal
funds to an educational, religious, charitable, fraternal, or civic organization not
conducted for profit. Nor, does the Ohio Code of Judicial Conduct prohibit a judge from
contributing campaign funds to an educational, religious, charitable, fraternal, or civic
organization not conducted for profit. [As a reminder, Rule 4.1(A)(4) prohibits a judge
from expending campaign funds to a political party or a candidate for public office,
except as permitted by division (B)(2) or (B)(3) of the rule.]

Op. 2009-11 3
Under state law, a charitable contribution from a campaign fund is permissible if in
compliance with R.C. 3517.08(G). Pursuant to R.C. 3517.08(G), “[a]n expenditure for
the purpose of a charitable donation may be made if it is made to an organization that is
exempt from federal income taxation under subsection 501(a) and described in subsection
501(c)(3), 501(c)(4), 501(c)(8), 501(c)(10), or 501(c)(19) of the Internal Revenue Code
or is approved by advisory opinion of the Ohio elections commission as a legitimate
charitable organization. Each expenditure under this division shall be separately itemized
on statements made pursuant to section 3517.10 of the Revised Code.”
Under state law, a charitable contribution from personal funds is not prohibited, but as
advised upon by the Ohio Elections Commission, the reporting requirements of state
campaign law may be implicated if the charitable contribution is made for the purpose of
promoting a present or possible future election. In Opinion 90-1, the Ohio Elections
Commission advised that “[a]n officeholder who makes a charitable contribution from his
personal funds to a charity is not required to report such expenditure in compliance with
Revised Code section 3517.10(A) when the charitable contribution is not made in whole
or in part for the purpose of promoting a present or possible future candidacy, as
determined by the conditions set forth in this opinion.”
In Opinion 90-1, the Ohio Elections Commission stated: “In Advisory Opinion No. 89-4
this commission considered whether certain expenditures from the personal funds of
officeholders, including the purchase of patron ads in publications published by
charitable organizations, are considered to be campaign contributions. The commission
stated that the test for whether a disbursement of funds is a reportable expenditure under
Chapter 3517 is whether the purpose is ‘in whole or in part’ to bring about the possible
nomination or election to public office of an individual. For example, if the purpose of
making contributions is in whole or in part to build name recognition or gain publicity for
a present or future candidacy, the contribution must be reported in compliance with
Chapter 3517.”
Thus, a judge’s use of personal funds for charitable contribution may or may not be a
reportable campaign expenditure depending upon the facts.
In Op. 90-1, the Ohio Elections Commission expressed the view that “[t]here is a strong
presumption that contributions to recognized charities are made for charitable purposes.”
This Board agrees with that presumption. The Ohio Elections Commission advised that
objective criteria could be used to rebut the presumption that it is a charitable
contribution: “The objective factors to be considered include, but are not limited to, the
following: whether the officeholder has control or significant input over the publicity
resulting from the contribution, whether the title by which the officeholder is listed in the
publicity is an honorific title and not the title to a specific office, whether the officeholder
has a history of charitable giving to the same charity, which party initiated the
contribution and the timing of the contribution in relation to the election at which the
officeholder will seek election. The test is one of assessing all relevant factors.”

Op. 2009-11 4
In Op. 90-1, the Ohio Elections Commission was responding to a judge’s request for
advice as to the following question: “Must contributions from an officeholder’s personal
funds to a local hospital or the United Way be reported as a campaign expenditure, when
the officeholder knows that the donation will be widely publicized or acknowledged in
the recipient’s literature or on a prominently displayed plaque?” The Ohio Elections
Commission discussed the following factors as relevant to the judge’s question as to
whether a charitable contribution from personal funds is a reportable expenditure under
state campaign finance law.
One factor to be considered is whether the officeholder has control or
significant input over the public acknowledgment of his or her
contribution. With an advertisement the purchaser controls the content of
the message published, the size of the message, and the frequency of
publication. Although charities often publish a list of all contributors or
place a plaque to acknowledge a significant contribution, the contributor’s
control or input is generally limited to giving permission for his or her
name to be published.
The nature of the title by which the officeholder is listed in the publicity
must also be assessed. The honorific title of “Judge”, is customarily
retained after the person leaves office. Moreover, the title “Judge” is
generic and the title to a specific office. The title “Judge of the Huron
County Juvenile Court” is the title to a specific office, as is a reference, for
example, to the office of Highland County Prosecutor.
The officeholder’s history of charitable giving should also be considered.
A history of charitable giving to the same charity, including prior to
becoming an officeholder, lends credence to the claim that the
contribution in question is solely for charitable purposes. You have stated
that you do have a prior history of charitable giving.
Also, to be considered is the party that initiated the contribution. You
have stated that the charitable organizations approached you with the
request for a contribution.
The timing of the contribution relevant to the possible reelection effort of
the officeholder is also relevant. Although the proximity of the reelection
campaign and the contribution may be closely timed, that in itself is not
enough to defeat the presumption of a charitable purpose. You have stated
that you must seek reelection in 1990. In this instance, the other objective
criteria counterbalance the question of time.
Ohio Elections Commission, Op. 90-1 (1990).
As to the ethical question presented to this Board, several premises must be noted. First,
while the solicitation and receipt of campaign contributions is limited to a particular time

Op. 2009-11 5
period identified in Rule 4.4(F), expenditures of campaign funds are not time limited and
thus may occur at any time during an election or non-election year provided that the
expenditure is not a solicitation of funds. See Ohio Sup.Ct., Bd of Comm’rs on
Grievances & Discipline, Op. 97-6 (1997). Second, a judge is not prohibited from
receiving some name recognition in connection with participation in activities sponsored
by educational, religious, charitable, fraternal, or civic organizations not conducted for
profit. Rule 3.7(A)(5) permits “[a]ppearing or speaking at, receiving an award or other
recognition at, being featured on the program of, and permitting his or her title to be used
in connection with an event of such an organization or entity, provided the participation
does not reflect adversely on the judge’s independence, integrity, or impartiality.”
Comment [4], Rule 3.7 states “[i]dentification of a judge’s position in educational,
religious, charitable, fraternal, or civic organizations on letterhead used for fundraising or
membership solicitation does not violate this rule. The letterhead may list the judge’s
title or judicial office if comparable designations are used for other persons.”
In conclusion, this Board’s advises as follows. It is ethically proper under the Ohio Code
of Judicial Conduct for a judge to make a charitable contribution from personal or
judicial campaign funds. A judge’s name, with or without the title “judge” or
“honorable” may be recognized in the same manner as other contributor’s names are
recognized—Rule 3.7(A)(5) allows some name recognition in connection with
participation in activities sponsored by educational, religious, charitable, fraternal, or
civic organizations not conducted for profit if it does not reflect adversely on the judge’s
independence, integrity, or impartiality. A charitable contribution from judicial
campaign funds may be made in an election or non-election year—there is no ethical
restriction. But, a judge’s charitable contribution from judicial campaign funds must be
in compliance with R.C. 3517.08(G) and reported as an expenditure as required by R.C.
3517.10. A charitable contribution from personal funds may be made in an election or
non-election year—there is no ethical restriction. But, a judge should be aware that
although a charitable contribution from personal funds is presumed to be made for
charitable purposes, the Ohio Elections Commission has advised in Op. 90-1 that the
presumption may be rebutted and the reporting requirements of state campaign finance
law may be implicated if the charitable contribution from personal funds is made for the
purpose of promoting a present or possible future election. Whether a charitable
contribution is made for the purpose of promoting a present or possible future election is
a factual and legal determination outside this Board’s advisory authority. Pertinent
factors identified by Ohio Elections Commission in Opinion 90-1 are cited within this
Board’s opinion.
Advisory Opinions of the Board of Commissioners on Grievances and Discipline are
informal, nonbinding opinions in response to prospective or hypothetical questions
regarding the application of the Supreme Court Rules for the Government of the
Bar of Ohio, the Supreme Court Rules for the Government of the Judiciary, the
Ohio Rules of Professional Conduct, the Ohio Code of Judicial Conduct, and the
Attorney’s Oath of Office.

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Op. 2009-11