FLORIDA SUPREME COURT

JUDICIAL ETHICS ADVISORY COMMITTEE

receded by in Op. 05-07

Opinion Number: 2000-17

Date of Issue: September 20, 2000

WHETHER A JUDGE MAY PARTICIPATE IN HIS/HER CHILD'S SCHOOL FUND-RAISING ACTIVITIES BY WORKING IN A CONCESSION STAND. WHETHER A JUDGE, WHOSE SPOUSE IS EMPLOYED PART-TIME WITH THE POLICE DEPARTMENT, MUST DISCLOSE THIS ASSOCIATION IN CASES IN WHICH THE SPOUSE HAS ABSOLUTELY NO INVOLVEMENT.
ISSUES

Whether a judge may participate in his/her child's school fund-raising activities by working in a concession stand.
ANSWER: No, unless the role performed in the concession booth does not involve active solicitation of funds or selling goods.

Whether a judge, whose spouse is employed part-time with the police department, must disclose this association in cases in which the spouse has absolutely no involvement.
ANSWER: No.

FACTS

The inquiring judge raised the above-referenced issues. These issues will be discussed separately.


DISCUSSION
Issue 1

The inquiring judge asks whether he/she may participate in the concession stand for his/her child's band when all parents are being requested to physically support the band's efforts (or other school- related activities).

There are many roles in a concession booth that will not require one to actively solicit funds or sell goods. The answer to this inquiry will depend on the type of fund- raising activity undertaken by the judge.

The commentary to Canon 5A recognizes that "complete separation of a judge from extra judicial duties is neither possible nor wise; a judge should not become isolated from the community in which the judge lives."

Canon 5(C)(3)(b)(i) and (iii) provide in pertinent part that:

3. A judge may serve as an officer, director, trustee or non-legal advisor of an educational, religious, charitable, fraternal, sororal or civic organization not conducted for profit, subject to the following limitations and the other requirements of this Code.

* * *

(b) A judge as an officer, director, trustee or non-legal advisor, or as a member or otherwise:
(i) may assist such an organization in planning fund-raising and may participate in the management and investment of the organization's funds, but shall not personally participate in the solicitation of funds or other fund- raising activities, except that a judge may solicit funds from other judges over whom the judge does not exercise supervisory or appellate authority;
* * *
(iii) shall not use or permit the use of the prestige of judicial office for fund-raising or membership solicitation.

The commentary to this canon specifies that a judge must not engage in direct individual solicitation of funds except in very limited circumstances that are not pertinent to this inquiry. Under Canons 5(A) and 5(C) judges may participate in civic charitable activities that do not: 1) cast reasonable doubt on the judge's capacity to act impartially as a judge; 2) demean the judicial office; or 3) interfere with the proper performance of judicial duties.

Canon 2B specifies that a judge shall not lend the prestige of judicial office to advance the private interests of others. The judge should be mindful in stressing, if necessary, that his/her presence emanates from his/her role as a parent, and not as a judge.

In Opinion 88-31, this committee addressed an inquiry whether a judge may ethically participate as a model in a fashion show benefiting the local Legal Aid Society. In that opinion, the committee determined that the judge was ethically prohibited from being involved. In reaching this conclusion, the committee concluded that "the mere fact that the event had fund-raising as its objective forecloses participation by members of the judiciary." This language does not mean that a judge cannot participate in those activities that the rule permits simply because the event is a fund- raiser. The judge cannot participate in the solicitation of funds.

In Opinion 93-65 this committee addressed the same issue addressed in Opinion 88-31 and, in a 5-4 opinion, concluded that the judge could participate as a guest model. That opinion makes clear that there would be no prior notice of a "mystery guest model." No fund-raising would occur after the judge's appearance. The committee cited Opinion 88-31 in Opinion 93-65, but did not distinguish or harmonize the opinions.

Although this inquiry does not concern whether a judge can participate as a model in a fund-raiser, the committee takes this opportunity to clarify the inconsistency between Opinions 88-31 and 93-65. The committee recedes from its Opinion 93-65 and determines that a judge cannot participate as a model in a fund-raiser fashion show because to do so lends the prestige of the office and is an implicit solicitation of funds.

In another opinion regarding a charity fashion show, Opinion 98-32, the committee opined that a judge could not participate in a charity fashion show by announcing the winning tickets and describing the items won in a "Chinese Raffle." In that opinion the committee noted:

Judges do appear to be able to participate in fund-raising events where they are not identified as judges and their participation is more in the realm of physically providing help to the event.

Upon taking the bench, a judge does not and is not required to abdicate his/her role as a supportive parent. A judge cannot work in his/her child's school fund-raising activities if the job would entail active solicitation of funds or selling goods. However, a judge can participate in such fund-raising events where the judge is not identified as a judge, and the judge's participation is more in the realm of physically providing help to the event.

Examples of opinions where judges have been able to participate in such fund- raising events include: Opinion 89-19 (a judge could participate in a fund-raising sport event to the extent of holding a side line marking and checking credentials at the press gate where he was not identified either before or during the event as a member of the judiciary); Opinion 75-11 (a judge could use his home for the purpose of holding a garage sale to benefit a charity where any publicity would list the names as "Mr. and Mrs." with no reference being made to "Judge"); Opinion 96-27 (a judge could participate in a one day home building project with Habitat for Humanity, where the committee strongly cautioned that the project should not be portrayed as a project of the judges of the county).

In other opinions, the committee has made clear that if the judge's participation in any way involves solicitation or lending the prestige of the judge's office for fund-raising purposes, the judge may not participate. For instance, see Opinion 92-38 (judge may not be involved in the solicitation of donation of coats for the homeless that would be distributed by the Salvation Army); Opinion 88-5 (judge cannot participate in an exhibition basketball game to raise scholarship money where participation implicated the prestige of judge's office for the purpose of raising funds).

Issue 2

The inquiring judge asks whether he/she must disclose his/her spouse's association (part-time employment) with the police department in all cases involving that police department. This inquiry clearly exemplifies the judge's understanding of his/her duty to disclose in those cases in which the spouse was even tangentially involved which is to appear before the judge. Opinion 93-18 appears to have addressed a similar question in that a traffic magistrate, whose spouse was a deputy sheriff, inquired whether the magistrate was required to refrain from hearing all traffic cases from the sheriff's office. The Committee found that a traffic magistrate was not required to refrain from hearing all cases by the sheriff's office for which the magistrate's spouse is employed. It would appear that no disclosure is required. See Opinion 93-41 (judge's spouse was employed as a secretary for a local law enforcement agency); Opinion 94-03 (judge's spouse is a chemist for the Florida Department of Environmental Regulation). These opinions also addressed the issues of disclosure and disqualification (recusal) and required neither. Id.

The commentary to Canon 3E(1)(d) also provides some guidance in the note that: "The fact that a lawyer in a proceeding is affiliated with a firm which a lawyer relative of the judge is affiliated does not itself disqualify the judge." Although the judge's spouse is not a lawyer, the sheriff spouse appearing before the judge poses a similar problem. Further guidance is provided in the holding of Pool Water Products, Inc. v. Pools by L.S. Rule, 612 So. 2d 705 (Fla. 4th DCA 1993), in which the court ruled that:

The judge should disclose matters which he or she believes might reasonably impair his or her impartiality. However, after searching his of (sic) her conscience and determining that the matter will not have an effect, disclosure is not required.
REFERENCES
Issue 1

Florida Code of Judicial Conduct, Canon 2B; Commentary to Canon 5(A); and Canon 5(C)(3)(b)(i) and (iii).

Florida Judicial Ethics Advisory Committee Opinions: 75-11; 88-5; 88-31; 89-19; 92-38; 93-65; 96-27; and 98-32.

Issue 2

Pool and Water Products, Inc. v. Pools by L.S. Rule, 612 So. 2d 705 (Fla. 4th DCA 1993).

Florida Code of Judicial Conduct, Commentary to Canon 3E(1)(d).

Florida Judicial Ethics Advisory Committee Opinions: 93-18; 93-41; and 94-03.

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The Judicial Ethics Advisory Committee is expressly charged with rendering advisory opinions interpreting the application of the Code of Judicial Conduct to specific circumstances confronting or affecting a judge or judicial candidate. Its opinions are advisory to the inquiring party, to the Judicial Qualifications Commission and to the judiciary at large. Conduct that is consistent with an advisory opinion issued by the Committee may be evidence of good faith on the part of the judge, but the Judicial Qualifications Commission is not bound by the interpretive opinions by the Committee. Petition of the Committee on Standards of Conduct Governing Judges, 698 So.2d 834 (Fla. 1997). However, in reviewing the recommendations of the Judicial Qualification Commission for discipline, the Florida Supreme Court will consider conduct in accordance with a Committee opinion as evidence of good faith. Id.

For further information, contact The Honorable C. McFerrin Smith, III, Chair, Judicial Ethics Advisory Committee, DeLand Jail Building, 130 West New York Avenue, DeLand, Florida, 32720.

Participating Members: Graham. Attorney at Law, Judges C. Kahn, L. Kahn, Kotey, Silverman, Smith, Swartz, Thompson and Townsend.

Copies furnished to:
Justice Peggy Quince
All Committee Members
All Members of the J.Q.C.
Office of the State Courts Administrator (Name of inquiring judge deleted from this copy)