CJEO Formal Opinion No. 2017-011 — Judicial Service on a Nonprofit Charter School Board

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CALIFORNIA SUPREME COURT
COMMITTEE ON JUDICIAL ETHICS OPINIONS
350 McAllister Street, Room 1144A
San Francisco, CA 94102
(855) 854-5366
www.JudicialEthicsOpinions.ca.gov
CJEO Formal Opinion 2017-011
[Issued May 2, 2017]
JUDICIAL SERVICE ON A NONPROFIT CHARTER SCHOOL BOARD
I. Question Presented
The Committee on Judicial Ethics Opinions has been asked to provide an opinion
on the following question:
“May a judicial officer serve on the board of a charter school or a nonprofit
organization operating one or more charter schools? The charter school receives
public funds but is not likely to be involved in litigation within the jurisdiction of
the judge’s court. It does not have an open enrollment policy and board
membership is uncompensated and unelected.”
II. Summary of Conclusions
Judges are encouraged to participate in extrajudicial activities, so long as these
activities adhere to the restrictions within the California Code of Judicial Ethics.1 One of
these restrictions is that judges are prohibited from receiving appointment to a
1 All further references to canons and to Advisory Committee commentary are to
the California Code of Judicial Ethics unless otherwise indicated.

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governmental committee or commission or other governmental position that is concerned
with issues of fact or policy on matters other than the improvement of the law, the legal
system, or the administration of justice. (Canon 4C(2).) However, canon 4 permits a
judge to serve as an officer, director, trustee, or nonlegal advisor of an educational,
religious, charitable, service, or civic organization not conducted for profit, so long as
such service does not violate any other provisions within the canons. (Canon 4C(3)(b).)
Charter schools are similar to both public and private schools. Like private
schools, charter schools are commonly operated by nonprofit organizations. They are
relatively autonomous and, for the most part, are given freedom to operate outside of
most of the regulations governing traditional public schools. On the other hand, charter
schools are statutorily characterized as a part of California’s single, statewide public
school system and receive public funds. Adding to the uncertainty, 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 school officials are equivalent to officers
of public schools.
In analyzing whether service on the board of a charter school is ethically
permissible, the committee evaluated relevant case law and considered whether such
service is a governmental position or public office and therefore prohibited by canon
4C(2) or whether it constitutes service on the board of an educational nonprofit
organization that is permitted by canon 4C(3)(b). The committee also examined article
VI, section 17 of the California Constitution, which provides that a judge is “ineligible
for public employment or public office” and that “[a]cceptance of [a] public office is a
resignation from the office of judge.”
Because the law is unsettled on the question of whether a charter school board
member holds a “governmental position” as that term is used in the canon, or a “public
office” as that term is used in the Constitution, and because the Constitution absolutely
proscribes a judicial officer from holding public office, a judge runs the risk of automatic
resignation from judicial office if he or she serves on a charter school board. The

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committee therefore advises that a judge not serve on a charter school board. 2 Based on
the committee’s recommendation, the committee does not address whether service on a
charter school board may also cast doubt on the judge’s capacity to act impartially,
interfere with the proper performance of judicial duties, or lead to frequent
disqualification as prohibited by canon 4A, or whether such service may also create an
appearance of impropriety prohibited by canon 2.
III. Authorities
A. Canons
Canon 2: “A judge shall avoid impropriety and the appearance of impropriety
in all of the judge’s activities.”
Canon 4A: “A judge shall conduct all of the judge’s extrajudicial activities so
that they do not [¶] (1) cast reasonable doubt on the judge’s capacity to act impartially,
2 This conclusion does not necessarily prohibit retired judges in the assigned judges
program (AJP) from serving as members of a charter school board. Canon 6B provides
that a retired judge who “has received an acknowledgement of participation in the
Assigned Judges Program shall comply with all provisions of this code, except for” canon
4C(2) and canon 4E. Moreover, article VI, section 17 of the California Constitution
“applies only to sitting judges and not to persons who have resigned or retired from a
judicial office” and, therefore, retired judges are not prohibited from holding other public
office or engaging in other public employment. (Gilbert v. Chiang (2014) 227
Cal.App.4th 537, 540-41.) The Chief Justice, however, has sole discretion to determine
the eligibility of retired judges for service in the AJP. (Cal. Const., art. VI, § 6, subd. (e)
[the Chief Justice has authority to assign consenting retired judges to any court]; Judicial
Council of Cal., AJP Handbook: Standards and Guidelines for Judicial Assignments
(Apr. 2016) p. 1 (AJP Handbook) [adopted by the Chief Justice in the exercise of
constitutional authority to make assignments through the AJP].) The current AJP
standards and guidelines do not expressly preclude appointment to a nonelected
governmental position, but they do prohibit a judge from seeking or accepting elected or
political office. (AJP Handbook, at pp. 5-7.) The AJP standards and guidelines also
provide that the Chief Justice’s discretion regarding assignment-based decisions is not
limited by the AJP Standards and Guidelines, nor do the AJP standards and guidelines
necessarily encompass all of the factors upon which the Chief Justice may base such
decisions. (AJP Handbook, at p. 1.)

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[¶] (2) demean the judicial office, [¶] (3) interfere with the proper performance of judicial
duties, or [¶] (4) lead to frequent disqualification of the judge.”
Canon 4C(2): “A judge shall not accept appointment to a governmental
committee or commission or other governmental position that is concerned with issues of
fact or policy on matters other than the improvement of the law, the legal system, or the
administration of justice. . . .”
Advisory Committee commentary following canon 4C(2): “The appropriateness
of accepting extrajudicial assignments must be assessed in light of the demands on
judicial resources and the need to protect the courts from involvement in extrajudicial
matters that may prove to be controversial. Judges shall not accept governmental
appointments that are likely to interfere with the effectiveness and independence of the
judiciary, or that constitute a public office within the meaning of article VI, section 17 of
the California Constitution.
“Canon 4C(2) does not govern a judge’s service in a nongovernmental position.
See Canon 4C(3) permitting service by a judge with organizations devoted to the
improvement of the law, the legal system, or the administration of justice and with
educational, religious, charitable, service, or civic organizations not conducted for
profit. For example, service on the board of a public educational institution, other than a
law school, would be prohibited under Canon 4C(2), but service on the board of a public
law school or any private educational institution would generally be permitted under
Canon 4C(3).”
Canon 4C(3)(a): “[A] judge may serve as an officer, director, trustee, or nonlegal
advisor of an organization or governmental agency devoted to the improvement of the
law, the legal system, or the administration of justice provided that such position does not
constitute a public office within the meaning of article VI, section 17 of the California
Constitution . . . .”
Canon 4C(3)(b): “[A] judge may serve as an officer, director, trustee, or nonlegal
advisor of an educational, religious, charitable, service, or civic organization not
conducted for profit . . . .”
Advisory Committee commentary following canon 4C(3): “Canon 4C(3) does
not apply to a judge's service in a governmental position unconnected with the
improvement of the law, the legal system, or the administration of justice. See Canon
4C(2).”

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Canon 4C(3)(c): “[A] judge shall not serve as an officer, director, trustee, or
nonlegal advisor if it is likely that the organization [¶] (i) will be engaged in judicial
proceedings that would ordinarily come before the judge, or [¶] (ii) will be engaged
frequently in adversary proceedings in the court of which the judge in a member or in any
court subject to the appellate jurisdiction of the court of which the judge is a member.”
B. Other Authorities
California Constitution, article VI, sections 6 and 17
California Charter Schools Act (Ed. Code, § 47600 et seq.)
Abbott v. McNutt (1933) 218 Cal. 225
California School Bds. Assn. v. State Bd. of Education (2010) 186 Cal.App.4th
1298
Ghafur v. Bernstein (2005) 131 Cal.App.4th 1230
Gilbert v. Chiang (2014) 227 Cal.App.4th 537, 550
Knapp v. Palisades Charter High School (2007) 146 Cal.App.4th 708
Lungren v. Davis (1991) 234 Cal.App.3d 806
Wells v. One2One Learning Foundation (2006) 39 Cal.4th 1164
Wilson v. State Board of Education (1999) 75 Cal.App.4th 1125, 1139
Caviness v. Horizon Cmty. Learning Ctr., Inc. (9th Cir. 2010) 590 F.3d
806
Doe ex rel. Kristen D. v. Willits Unified School Dist. (N.D.Cal., Mar. 8, 2010, No.
C 09-03655 JSW) 2010 WL 890158
Sufi v. Leadership High School (N.D.Cal. 2013) 2013 U.S.Dist.Lexis 92432,
[2013 WL 3339441]
Judicial Council of Cal., AJP Handbook: Standards and Guidelines for Judicial
Assignments (Apr. 2016)
67 Ops.Cal.Atty.Gen. 385 (1984)

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Rothman, California Judicial Conduct Handbook (3d ed. 2007) sections 10.01,
10.02, 10.31, 10.36, 10.38
California Judges Association, Formal Opinion Nos. 31, 46, 61
California Judges Association, Judicial Ethics Update (1989)
Arizona Supreme Court Judicial Ethics Advisory Committee, Advisory Opinion
96-05
Colorado Judicial Ethics Advisory Board, Advisory Opinion 2007-02
Connecticut Committee on Judicial Ethics, Informal Opinion 2015-22
Delaware Judicial Ethics Advisory Committee, Advisory Opinion 2001-2
Florida Judicial Ethics Advisory Committee, Judicial Ethics Opinion 2016-01
New York Advisory Committee on Judicial Ethics, Advisory Opinion 11-44
South Carolina Advisory Committee on Standards of Judicial Conduct, Advisory
Opinion 16-2002
IV. Discussion
A. Restrictions on Extrajudicial Activities
The California Code of Judicial Ethics governs the ethical conduct of judges both
on and off the bench. Off the bench, community activity by a judge is encouraged,
subject to limitations that minimize the risk of conflict with a judge’s judicial obligations.
(Rothman, Cal. Judicial Conduct Handbook (3d ed. 2007) § 10.02, p. 525 (Rothman)
[“Although community activity is encouraged and considered a judicial duty, there are
limitations that judges must know.”].) While all extrajudicial activities must comply with
the entirety of the code, canon 4 provides specific guidance to judges regarding
extrajudicial conduct. In general, canon 4 requires a judge to conduct all of the judge’s
extrajudicial activities in a manner that does not cast reasonable doubt on the judge’s
capacity to act impartially, demean the judicial office, interfere with the proper

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performance of judicial duties, or lead to frequent disqualification of the judge. (Canon
4A.)
Canon 4C(2) explicitly prohibits a judge from accepting “appointment to a
governmental committee or commission or other governmental position that is concerned
with issues of fact or policy on matters other than the improvement of the law, the legal
system, or the administration of justice.” Stating the inverse, canon 4C(3)(a) permits
service within an “organization or governmental agency devoted to the improvement of
the law, the legal system, or the administration of justice provided that such position does
not constitute a public office within the meaning of article VI, section 17 of the California
Constitution.” Public educational institutions are governmental bodies. (See Wells v.
One2One Learning Foundation (2006) 39 Cal.4th 1164, 1190 (Wells) [a public school
district cannot be sued under the California False Claims Act as the statute does not
include governmental entities]; Advisory Com. com. foll. canon 4C(2); Cal. Judges
Assoc., Judicial Ethics Update (1989) pp. 2-3 [a judge may not serve on a school board];
Rothman, supra, § 10.31, pp. 541-42 [“Membership on a public school board of
education or a committee of same does not relate to the law, legal system, or
administration of justice and, therefore, would be improper.”].)
Canon 4C(3)(b), however, allows for a judge to “serve as an officer, director,
trustee, or nonlegal advisor of an educational, religious, charitable, service, or civic
organization not conducted for profit,” so long as such service complies with the
remainder of the code. Specifically, a judge is further restricted from serving “as an
officer, director, or nonlegal advisor if it is likely that the organization [¶] (i) will be
engaged in judicial proceedings that would ordinarily come before the judge, or [¶] (ii)
will be engaged frequently in adversary proceedings in the court of which the judge is a
member or in any court subject to the appellate jurisdiction of the court of which the
judge is a member.” (Canon 4C(3)(c).) Even if an extrajudicial assignment is
permissible, “[t]he appropriateness of accepting extrajudicial assignments must be
assessed in light of the demands on judicial resources and the need to protect the courts

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from involvement in extrajudicial matters that may prove to be controversial.” (Advisory
Com. com. foll. canon 4C(2).)
To summarize, canon 4C permits a judge to be a member of the board of a private
educational institution and prohibits service on a public school board. Assuming
compliance with the remainder of the code, a judge’s ability to serve on a charter school
board depends on whether such service constitutes a governmental committee or
commission or other governmental position, i.e., whether canon 4C(2) or canon 4C(3)(b)
applies. In deciding whether service on a charter school board is a governmental
position, a judge must look to California’s distinct legal framework regarding charter
schools, examine the differences between traditional public schools and charter schools,
and evaluate the instances in which charter schools are determined to be more akin to
private or public institutions.
B. Charter Schools
a. Background
Through enactment of the Charter Schools Act of 1992 (Charter Schools Act) (Ed.
Code, § 47600 et seq.), the Legislature intended “to improve learning; create learning
opportunities, especially for those who are academically low-achieving; encourage
innovative teaching methods; create new opportunities for teachers; provide parents and
students expanded choices in the types of educational opportunities available; hold the
charter schools accountable for meeting quantifiable outcomes; and provide ‘vigorous
competition within the public school system to stimulate continual improvements in all
public schools.’” (California School Bds. Assn. v. State Bd. of Education (2010) 186
Cal.App.4th 1298, 1306, citing Ed. Code, § 47601.) In furtherance of these goals, charter
schools are, for the most part, permitted to be autonomous. They operate independently
from the existing school district structure and are “given substantial freedom to achieve
academic results free of interference by the public educational bureaucracy. The sole
relationship between the charter school operators and the chartering districts in this case

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is through the charters governing the schools’ operation.” (Wells, supra, 39 Cal.4th at p.
1201.) A charter school may operate as a nonprofit benefit corporation, and such
nonprofit’s board of directors makes decisions that are specific only to the nonprofit
organization and its charter school or schools. (Ed. Code, § 47604, subd. (a).)
Despite their independence, however, charter schools are subject to some of the
same restrictions imposed on their traditional public school counterparts as well as
oversight by the chartering authority. The school district that grants a charter is entitled
to one representative on the board of directors of the charter school. (Ed. Code, § 47604,
subd. (b).) They are also subject to, among other traditional public school requirements,
a minimum number of school days and instructional minutes (id., § 47612, subd. (d)(3)-
(4)), teacher credential requirements equivalent to those of other public schools (id., §
47605, subd. (l)), free tuition, and a prohibition on discrimination against students who
wish to attend the school (id., § 47605, subd. (d)(1)). Absent these and a few other
requirements, however, charter schools and their operators are “exempt from the laws
governing school districts.” (Id., § 47610; see Wells, supra, 39 Cal.4th at p. 1201.)
b. Charter Schools Are Public Schools and Charter School Officials
Are Officers of Public Schools
Perhaps due to the hybrid structure of charter schools, which “in some respects
blur[s] the distinction between public and private schools” (Ghafur v. Bernstein (2005)
131 Cal.App.4th 1230, 1239 (Ghafur)), it is unresolved whether a charter school is a
public or private entity for all purposes. To allow for public funding, the Legislature has
declared that charter schools are part of the public school system pursuant to article IX of
the California Constitution. (Ed. Code, § 47615.) In Wilson v. State Board of Education,
(1999) 75 Cal.App.4th 1125, the First District Court of Appeal examined the
constitutionality of the Charter Schools Act and found that charter schools are within the
mandatory state system of common schools and permissibly funded by public money.
(Id. at pp. 1137-1141.) To establish that charter schools are constitutionally permissible,
the court determined that charter schools are public schools, charter schools are under the

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exclusive control of the officers of public schools, and “charter school officials are
officers of public schools to the same extent as members of other boards of education of
public school districts.” (Id. at pp. 1139-1141.) Moreover, each charter school is deemed
to be its own school district for purposes of statutory and constitutional funding
allocations. (Id. at p. 1141; Ed. Code, § 47612, subd. (c).)
Applying the same logic used to find that charter school officials are akin to
traditional public school officials, the First District Court of Appeal has determined that a
former charter school superintendent was a public official for defamation purposes. The
court first concluded that a traditional public school superintendent, though unelected, is
a public official because the head of a school district has “substantial responsibilities in
the operation of the [school] system” and the public has “a substantial interest in the
qualifications and performance of the person appointed as its superintendent.” (Ghafur,
supra, 131 Cal.App.4th at p. 1238, citation omitted.)
Examining whether the same reasoning applied to a charter school superintendent,
the court concluded that to differentiate the public official status of a public school
superintendent from that of a charter school superintendent would “overlook ‘the intent
of the Legislature that charter schools are and should become an integral part of the
California educational system’ (Ed. Code, § 47605, subd. (b)).” (Ghafur, supra, 131
Cal.App.4th at p. 1240.) Charter schools are public schools, and the positions of charter
school superintendent and charter school board member are of equal public concern and
importance as those of their traditional public school counterparts. Charter school
superintendents retain “substantial responsibility for or control over the conduct of
governmental affairs.” (Ibid., quoting Rosenblatt v. Baer (1966) 383 U.S. 75, 85.)
Therefore, at least for defamation purposes, the Ghafur court held that charter school
board members and superintendents are equivalent to traditional public school board
members and superintendents.

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c. Charter Schools Are Both Public and Private Entities
Charter schools are not consistently treated as public or private entities for liability
or immunity purposes. In some instances, charter schools have been determined to be
arms of the state to establish immunity. (Doe ex rel. Kristen D. v. Willits Unified School
Dist. (N.D.Cal., Mar. 8, 2010, No. C 09-03655 JSW) 2010 WL 890158 [charter schools
are arms of the state for 11th Amend. immunity purposes].) In other instances, however,
charter schools have been distinguished from public schools in determining liability.
In Wells, the Supreme Court held that, although “charter schools are deemed part
of the system of public schools for purposes of academics and state funding eligibility,
and are subject to some oversight by public school officials [citation], the charter schools
here are operated, not by the public school system, but by distinct outside entities.”
(Wells, supra, 39 Cal.4th. at pp. 1200-1201.) Therefore, based on their private operation,
the court determined that charter schools were not considered local public entities for
purposes of the Government Claims Act. (Id. at p. 1214; see also Knapp v. Palisades
Charter High School (2007) 146 Cal.App.4th 708, 717 [following Wells and concluding
that the plaintiff was not required to present written claims to the charter school under the
Government Claims Act before filing sexual harassment and tort claims].) The court
further concluded that although traditional public school districts are not persons subject
to suit under the California False Claims Act and the unfair competition law, charter
schools and their operators are not public or governmental entities and not exempt from
these laws “merely because such schools are deemed part of the public schools system.”
(Wells, supra, 39 Cal.4th at p. 1164; see id. at pp. 1179, 1202, 1204; see also Sufi v.
Leadership High School (N.D.Cal., July 1, 2013, No. C-13-01598(EDL)) 2013 WL
3339441, at *8 [2013 U.S.Dist.Lexis 92432] [a charter school is not a state actor for
purposes of 42 U.S.C. § 1983] (Sufi); Caviness v. Horizon Community Learning Center,
Inc. (9th Cir. 2010) 590 F.3d 806, 812-814 (Caviness) [an Ariz. charter school is acting
as a private actor in connection with employment decisions and not a state actor for
purposes of 42 U.S.C. § 1983].)

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As evidenced by the case law, a charter school can be considered a public or
private entity depending upon the issue. (Caviness, supra, 590 F.3d at pp. 812-813 [“an
entity may be a State actor for some purposes but not for others”].) Nothing affirmatively
resolves whether service on a nonprofit charter school board is a governmental position
for the purpose of judicial ethics. However, the decisions of a charter school board and a
traditional public school board have substantially similar impacts, affecting the operation
of the local school system and playing significant roles in local communities. (See
Ghafur, supra, 131 Cal.App.4th at pp. 1238-1239.) The committee advises that based on
the case law and the substantially similar impact that decisions of either a charter school
board or a traditional school board have on a community, service on a local charter
school board would likely be considered a governmental position.
d. Other State Advisory Opinions on Charter School Board Service
Judicial ethics advisory bodies in other jurisdictions are also divided on whether
service on a charter school board constitutes a governmental position prohibited by the
canons, supporting the committee’s recommendation not to accept a charter school board
position. Some states with similar canons, constitutional prohibitions on holding dual
offices, and charter school laws as in California advise that a judge may not serve on the
board of a charter school. The New York Advisory Committee on Judicial Ethics advises
that a judge may not serve on the board of a charter school because, like public schools, a
charter school may “generate quasi-political and highly controversial issues that could
interfere with a judge’s judicial duties and compromise his/her appearance of
impartiality.” 3 (N.Y. Jud. Advisory Com. Jud. Ethics, Op. 11-44.) The New York
3 In New York, charter schools are also deemed public schools (N.Y. Educ. Law §
2853, subd. (1)(c)-(d)), and judicial officers are prohibited from simultaneously holding
any other public office, absent limited exceptions (N.Y. Const., art. VI, § 20). Like the
California canon, New York’s canon 4 prohibits a judge from accepting appointment to a
governmental committee, commission, or other governmental position that is not
concerned with the improvement of the law, the legal system, or the administration of
justice, but permits service as an officer, director, trustee, or nonlegal advisory of an

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committee found “no reason to distinguish between service on a public school board and
a public charter school board.” (Ibid.) Similarly, a Florida Judicial Ethics Advisory
Committee opinion advises simply that because in Florida, charter schools are part of the
state’s program on public education and all charter schools in the state are public schools,
such service is prohibited. (Fla. Jud. Ethics Advisory Com., Opn. 2016-01.)
Other states have advised that service on a charter school board is permitted under
the state’s canons. The Arizona Supreme Court Judicial Ethics Advisory Committee,
also with substantially similar canons, constitutional prohibitions on holding dual offices,
and charter school laws, has determined that service on a charter school board is not a
governmental position and is therefore permitted, subject to the other provisions within
the canons. (See Ariz. Const., art. VI, § 28; Ariz. Supreme Ct. Rules, Judicial Ethics,
rules 3.4, 3.7(A)(6); Sufi, supra, 2013U.S.Dist.Lexis 92432 [2013 WL 3339441]
[comparing Ariz. and Cal. charter schools and finding that the two states have
substantially similar charter school laws].) The Arizona committee has determined that,
based on the purpose of the canon and the differences between charter schools and public
schools and service on a local school board and a charter school board, “[m]embership on
the board of directors of a non-profit corporation that operates a charter school is not a
governmental position.” (Ariz. Jud. Ethics Advisory com., Op. 96-5, p. 1.) Other states
have reached similar conclusions. (See Conn. Com. on Jud. Ethics, Opn. 2015-22
[judicial officer may serve on the board of a nonprofit that consists of four public charter
schools so long as the judge meets nine conditions within the canons]; Del. Jud. Ethics
Advisory Com., Opn. 2001-2 [judge may serve as a board member for a military
academy operated as a charter school after assuming that although publicly funded, the
charter school would not be considered a governmental committee or commission]; Colo.
educational organization not conducted for profit. (N.Y. State Rules of the Unified Court
System, Rules of the Chief Admin. Judge, § 100.4(C)(2)(a), 100.4(C)(3).)

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Jud. Ethics Advisory Bd., Op. 2007-02 [board of directors of a nonprofit public charter
school is not a governmental organization and service on a charter school board in a
different county and different judicial district was not prohibited]; S.C. Advisory Com.
on Standards Jud. Conduct, Opn. 16-2002 [judge may accept appointment to serve on a
charter school board in a county not served by the judge].) Significantly, however, none
of these opinions address or resolve the concerns regarding dual offices, such as the
prohibition within article VI, section 17 of the California Constitution and the potential
for automatic resignation from judicial office if service on a charter school board is
deemed a public office.
C. Prohibition on Holding Dual Offices
In addition to the restrictions within the code, service in a governmental position
may also be prohibited by the California Constitution. Article VI, section 17, provides
that a judge “is ineligible for public employment or public office other than judicial
employment or judicial office.” (Cal. Const., art. VI, § 17.) Most significantly, the
acceptance of a public office “is a resignation from the office of judge.” (Ibid.)
Therefore, “[a]fter taking judicial office, a judge must be cautious in undertaking or
accepting appointment to any local, county or state government position, board, agency
or commission without first making sure that the position is not a ‘public employment or
public office other than judicial employment or judicial office.’” (Rothman, supra, §
10.01, pp. 524-525.)
Article VI, section 17 is “intended to exclude judicial officers from such activities
as may tend to militate against the free, disinterested and impartial exercise of their
judicial functions.” (Abbott v. McNutt (1933) 218 Cal. 225, 229 [judges are prohibited
from serving on a qualification board formed to submit a list of qualified candidates to
the board of supervisors for a county manager position]; see also 67 Ops.Cal.Atty.Gen.
385 (1984).) Specifically, it is intended “conserve the time of the judges for the
performance of their work, and to save them from the entanglements, at times the partisan
suspicions, so often the result of other and conflicting duties.” (Abbott, supra, 218 Cal. at

15
p. 229, quoting In re Richardson (1928) 247 N.Y. 401, 420.) The prohibition creates a
distinct separation of the judiciary from the rest of the government, protecting the
independence and impartiality of the judicial branch. (Gilbert v. Chiang, supra, 227
Cal.App.4th 537, 550; Lungren v. Davis (1991) 234 Cal.App.3d 806, 819.) These goals
are closely aligned with the limitations on extrajudicial activities within the code.
Like the code, article VI, section 17 fails to define the term public employment or
public office. It is, however, widely accepted that public school board members are
public officials. (Cal. Const., art. VI, § 17; Ghafur, supra, 131 Cal.App.4th at p. 1238;
Rothman, supra, § 10.01, p. 524.) It is less certain whether service on a charter school
board is “public employment or public office” within article VI, section 17 of the
California Constitution. (Rothman, supra, § 10.31, pp. 541-42 [“Memberships on boards
of, or leadership positions in connection with, public educational institutions are
governmental activities not related to the law, legal system, and administration of justice,
and may amount to public employment or holding public office”].) If so, a judge is
constitutionally ineligible for a charter school board position unless he or she resigns
from judicial office. To accept a public office would result in automatic resignation from
judicial office.
V. Conclusions
Judges are prohibited from serving in a governmental position that is not
concerned with the improvement of the law, the legal system, or the administration of
justice. (Canon 4C(2).) A judge may serve as an officer, director, trustee, or nonlegal
advisor of an educational organization not conducted for profit, so long as such service
does not violate any other provisions within the canons. (Canon 4C(3)(b).) The
committee believes that charter schools blur the distinction between governmental
entities and nonprofit organizations, and service on a charter school board may constitute
a violation of canon 4C(2), or implicate the constitutional provision prohibiting a judicial
officer from holding public office.

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The case law regarding whether service on a charter school board is a
governmental position and therefore prohibited by canon 4C(2), or is a public office and
therefore prohibited by the Constitution, is unsettled. 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.

This opinion is advisory only (Cal. Rules of Court, rule 9.80(a), (e); Cal. Com.
Jud. Ethics Opns., Internal Operating Rules & Proc. (CJEO) rule 1(a), (b)). It is based
on facts and issues, or topics of interest, presented to the California Supreme Court
Committee on Judicial Ethics Opinions in a request for an opinion (Cal. Rules of Court,
rule 9.80(i)(3); CJEO rule 2(f), 6(c)), or on subjects deemed appropriate by the
committee (Cal. Rules of Court, rule 9.80(i)(1); CJEO rule 6(a)).