COMMITTEE ON CODES OF CONDUCT
ADVISORY OPINION NO. 91
Solicitation and Acceptance from Persons Doing Business With the
Court of Funds to Defray Expenses of Conference for Improvement of the
Law.
A judge has asked the Committee whether judicial employees under
the judge's supervision can solicit funds from vendors who do business
with the courts in order to defray the expenses of a conference devoted
to the improvement of the judicial system. The conference is sponsored
by an association whose members are judicial employees. If such solicitation
is inappropriate, the judge's second inquiry is whether an unsolicited
gift can be accepted.
I. Solicitation of Gifts
For the reasons that follow, the Committee is of the opinion that
both the Ethics Reform Act and the canons prohibit such solicitation of
gifts from persons doing business with the courts. The fact that the purpose
of the conference involves improvement of the administration of the judicial
system is not sufficient to avoid the prohibition against solicitation.
Therefore, it is the opinion of the Committee that judges should exercise
their supervisory powers to preclude employees under their supervision
from making such solicitations.
The relevant provisions of the Ethics Reform Act are:
(a) Except as permitted by subsection (b), no . . . employee
of the . . . judicial branch shall solicit or accept anything of value
from a person --
(1) seeking official action from, [or] doing business with
. . . the individual's employing entity; or
(2) whose interests may be substantially affected by the performance
or nonperformance of the individual's official duties.
(b)(1) Each supervising ethics office is authorized to issue rules
or regulations implementing the provisions of this section and providing
for such reasonable exceptions as may be appropriate.
5 U.S.C. § 7353. The statute bars both solicitation and acceptance
of gifts from vendors doing business with the courts, as well as from vendors
whose interest may be substantially affected by official action of the
courts. Although the statute permits the Judicial Conference, the supervising
ethics office for the judicial branch, to promulgate implementing regulations,
and although the regulations provide for some exceptions with respect to
acceptance of gifts, the regulations provide for no exceptions to the statute's
prohibition against solicitation of gifts from persons doing business with
the courts.
Thus, the Committee concludes that the Ethics Reform Act prohibits
the proposed activity, i.e., the solicitation of gifts from vendors
doing business with the courts. The Committee also concludes that the solicitation
of such gifts is contrary to the governing code of conduct because the
proposed solicitation from vendors doing business with the courts would
create an appearance of impropriety in violation of Canon 2. Therefore,
if it comes to the attention of a judge who has authority to supervise
an employee that the employee is soliciting such gifts or proposes to solicit
them, the Committee concludes that the judge should prohibit the solicitation.
II. Acceptance of Gifts
The second inquiry asks whether an employees' association can accept
funds from such vendors if they are not improperly solicited. In other
words, the inquiry focuses upon a truly voluntary offer by a vendor doing
business with the courts to provide substantial funding to an employees'
association, to be used by the association in defraying various expenses
of the association in conducting its conference. We need not decide whether
such gifts to the association would contravene the gift prohibitions in
the Ethics Reform Act and in the canons, because the Committee concludes
that in any event it would create an appearance of impropriety under Canon
2 for judicial employees to make arrangements with a vendor known to be
doing business with the courts by virtue of which the vendor would provide
substantial financial support to assist an employees' association in putting
on its conference. The Committee has advised in the past that it would
create an appearance of impropriety for a group of judges or judicial personnel
to arrange with a vendor known to be doing business with the court to provide
financial support for an event to be held at a conference or meeting sponsored
by the judges or judicial personnel. See Compendium § 2.9(a)
(1997).
July 8, 1994
Reviewed January 16, 1998