2015-15A (September 17, 2015)
Membership; Extrajudicial Activities; Appearance of Impropriety
Rules 1.2, 3.1 & 3.6
 
Issue:  May a Judicial Official participate in the Boy Scouts of America (“BSA”) by holding regional or higher level volunteer positions? The Judicial Official indicated that his/her participation with the BSA would involve teaching ethics courses to both scouts and adult leaders. The leaders receiving ethics training would be from both religious and non-religious unit organizations. As regional/high level volunteer, the Judicial Official does not vote on unit charter applications submitted by religious chartered organization nor does he/she vote on whether to give funds to religious chartered organizations.

Additional Facts: 
On July 27, 2015, the Boy Scouts of America’s National Executive Board adopted a resolution which no longer excludes individuals on the basis of sexual identity or orientation from adult leadership positions, with the exception that religious chartered organizations may continue to use religious beliefs as criteria for selecting adult leaders. However, it is not an option for nonreligious chartered organizations.

The Judicial Official contacted the BSA and obtained information about the policy change from its General Counsel.  According to BSA General Counsel, the resolution adopted by the board states that “[n]o adult applicant for registration as an employee or non-unit-serving volunteer, who otherwise meets the requirements of the Boy Scouts of America, may be denied registration on the basis of sexual orientation.”  With respect to volunteers serving at the unit level, the resolution reaffirmed the right of each religious chartered organization to “reach its own religious and moral conclusions” about how sexual relations between adults should be moral, honorable, committed and respectful.  The letter stated further that “the official position of the Boy Scouts of America is that nonreligious chartered organizations cannot discriminate in the selection of leaders based on sexual orientation.”

Relevant Code Provisions: Rules 1.2, 3.1 & 3.6

Applicable Rules of Judicial Conduct:
Rule 1.2 of Connecticut’s Code of Judicial Conduct states that a judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety. The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge violated this Code or engaged in other conduct that reflects adversely on the judge’s honesty, impartiality, temperament, or fitness to serve as a judge.
 
Rule 3.1(3) states that judges must ensure that their extrajudicial activities do not “appear to a reasonable person to undermine the judge’s independence, integrity or impartiality.” The rule’s commentary encourages judges to engage in appropriate extrajudicial activities, to the extent that “judicial independence and impartiality are not compromised.”  The commentary provides further than judges are encouraged to engage in “educational, religious, charitable, fraternal or civic extrajudicial activities not conducted for profit, even when the activities do not involve the law.” Rule 3.1, cmt.(1).
 
Rule 3.6(a) specifically prohibits a judge’s membership “in any organization that practices unlawful discrimination on the basis of race, sex, gender, religion, national origin, ethnicity, physical or mental disability, or sexual orientation.”
 
Discussion:
The issue of whether a judge can be affiliated with the Boy Scouts of America was considered by this Committee previously. In JE 2014-01, this Committee unanimously concluded that a Judicial Official should not participate as a BSA adult volunteer in any of the four leadership positions being considered by the Judicial Official because the positions would be denied to gay candidates by policy of the BSA.  In light of the fact that the four leadership positions being considered by the Judicial Official were positions that would be denied to gay candidates by policy of the BSA, the Committee determined that participation was not permissible because it might appear to a reasonable person to undermine the Judicial Official’s independence, integrity or impartiality in violation of Rule 3.1(3).

Under the facts of this inquiry, the BSA policy at issue in JE 2014-01 is no longer in force. The newly adopted official position of the Boy Scouts of America is that “nonreligious chartered organizations cannot discriminate in the selection of adult leaders based upon sexual orientation.”

In order to determine whether participation of the Judicial Official as a BSA regional or high level volunteer, as an ethics instructor, is permitted in light of the new resolution, the Committee conducted the same two-prong analysis used in its prior opinion: (1) Whether the BSA engages in unlawful discrimination, and (2) Whether the Judicial Official’s contemplated participation as an adult volunteer at the regional or higher level creates the appearance of impropriety or would appear to undermine the Judicial Official’s impartiality.

The response to the first prong of the inquiry has not changed. Even under the pre-July 27th policy excluding gay adult leaders, the Committee determined that, under Dale, the Judicial Official’s proposed volunteer work does not appear to be specifically prohibited under Rule 3.6, which only reaches organizations engaged in “unlawful discrimination.”

With respect to the issue of whether participation as a BSA adult volunteer creates an appearance of impropriety or would appear to undermine the Judicial Official’s impartiality, the Committee considered Connecticut’s public policy against discrimination on the basis of sexual orientation and concluded that gay persons have a protected status under our state constitution and statutes. Given that judges are charged with enforcing Connecticut’s laws prohibiting discrimination based on sexual orientation, the Committee determined that it would appear to undermine a Judicial Official’s impartiality if the Official were to accept a position with an organization that the organization would, by policy, deny to another candidate on the basis of sexual orientation. Under the facts of the current inquiry, however, the Judicial Official is seeking leadership positions that are now available to gay candidates. Since there is no longer a ban on gay adults from holding these leadership positions, the prior concerns about a Judicial Official’s impartiality are eliminated.
 
Conclusion: Based on the facts presented, the Committee unanimously determined that the Judicial Official may participate in the Boy Scouts of America by teaching ethics courses as a regional or high level volunteer.

Committee on Judicial Ethics