FLORIDA SUPREME COURT

JUDICIAL ETHICS ADVISORY COMMITTEE

Opinion Number: 2001-09
Date of Issue: May 18, 2001

ISSUES
1.

MAY A JUDGE HELP DECORATE A HALL WHERE A FUND-RAISING EVENT IS TO BE HELD?

ANSWER: Yes.

2.

MAY A JUDGE ASSIST IN SETTING THE VALUE OF ITEMS TO BE AUCTIONED AT A FUND-RAISING EVENT?

ANSWER: Yes.

3.

MAY A JUDGE DONATE ITEMS TO BE AUCTIONED?

ANSWER: Yes, but the source of the donation should not be noted by the organization.

4.

MAY A JUDGE PARTICIPATE AS A FEATURED SPEAKER AT A FUND-RAISING ROAST OF A PROMINENT LOCAL FIGURE?

ANSWER: No.

5.

MAY A JUDGE SERVE AS AN OFFICER, INCLUDING PRESIDENT, OF ROTARY INTERNATIONAL AND ATTEND ALL FUNCTIONS OF ROTARY, BUT "HAND THE GAVEL" TO ANOTHER OFFICER IF AND WHEN FUND-RAISING IS THE SUBJECT OF DISCUSSION?

ANSWER: Yes. The judge may also participate in planning fund-raising events, but may not actually preside over any fund-raising event.

6.

MAY A JUDGE, IN AN EFFORT TO ASSIST A NON-PROFIT ORGANIZATION IN ITS FUND-RAISING, AUCTION OFF DINNER AND DRINKS FOR TWELVE IN THE JUDGE'S HOME?

ANSWER: No.

7.

IF THE JUDGE'S SPOUSE CHOOSES TO HOLD SUCH AND EVENT IN THE HOME OF THE JUDGE, MAY THE JUDGE BE PRESENT DURING THE EVENT?

ANSWER: No.

8.

MAY A JUDGE WHO LIVES IN A HISTORICAL HOME ALLOW CHARITABLE ORGANIZATIONS TO USE THE JUDGE'S HOME FOR FUND-RAISING PURPOSES?

ANSWER: No.

9.

IF THE JUDGE'S SPOUSE DECIDES TO ALLOW CHARITABLE ORGANIZATIONS TO USE THE JUDGE'S HOME FOR FUNDRAISING EVENTS, MUST THE JUDGE VACATE THE HOME DURING SUCH EVENT?

ANSWER: Yes.

FACTS

The inquiring judge is a recently elected county judge who apparently was, before his election, very involved in charitable and community organizations and events. The judge now seeks answers to numerous inquiries concerning the propriety of continuing involvement in the judge's previous activities.

One of the many organizations that the judge and the judge's spouse belong to which holds an annual fund-raiser involving a silent auction. In preparation for the fund-raiser, multiple displays will be made. In the past, the judge and the judge's spouse have volunteered to decorate and make such displays. The judge now inquires whether he may help decorate the hall while not participating in the actual fund-raising event. The judge also inquires whether he may assist in setting the value of auction items, and finally whether the judge may donate items to be auctioned.

Another charitable organization with which the judge is affiliated has asked the judge to help "roast" a prominent local figure. The roast is for the purpose of raising money for this charity, although during the roast, the roasters would not actually attempt to raise money. The organization sells tickets in advance and conducts a silent auction during the event. The judge asks whether he may participate as a featured speaker at such an event.

The judge also belongs to a local chapter of Rotary International. The judge asks whether he may serve on the local chapter's board of directors and, if so, whether he may eventually serve as president. The inquiring judge notes that Rotary Clubs generally raise money for charitable purposes. The judge suggests, however, that if he became an officer, he would "hand the gavel to another officer if and when fund-raising is the subject of discussion."

Another non-profit organization to which the judge and the judge's spouse belong holds an annual auction. In past years, the judge has contributed as an auction item, a dinner for twelve people in the judge's home. The judge and the judge's spouse provide all of the drinks, food, and services for the dinner. In the past, this dinner opportunity has raised a lot of money for the organization. The judge asks whether he may continue to offer dinner in his home as an auction item. The judge also inquires that if this is prohibited, whether he may attend an event in his home if his spouse "chooses to participate and hold such an event" in his home. The judge specifically wonders if it would be necessary for him to vacate his home during such an event.

In addition to his charitable and civic endeavors, this particular judge owns a "historical home" in his community. In the past, the judge and the judge's spouse have often been asked to host parties for various charitable organizations. These organizations, like other organizations to which this judge belongs, have silent auctions and raffles. These auctions and raffles take place in the judge's home during such parties. The judge inquires whether he may now continue to allow charitable organizations to use the home for such events. The judge also inquires whether, in the event his wife decides to allow such events to continue in the home, he must vacate the home during those events.

DISCUSSION

The activities contemplated at issues 1, 2, 3, and 5 are clearly permitted by the Code of Judicial Conduct, with one proviso on issue 3. In its commentary to Canon 5 of the Code of Judicial Conduct, the Florida Supreme Court has recognized that "a judge should not become isolated from the community in which the judge lives." Accordingly, Canon 5C allows participation by judges in governmental, civic, or charitable activities, with certain limitations. Without question, "[a] judge may serve as an officer, director, trustee or non-legal adviser of an educational, religious, charitable, fraternal, sororal or civic organization, not conducted for profit," subject to certain limitations. See Fla. Code Jud. Conduct, Canon 5C(3). As an officer or a member of the type of organization mentioned in Canon 5C(3), a judge "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, . . ." Fla. Code Jud. Conduct, Canon 5C(3)(b)i. Accordingly, a judge may perform the activities mentioned under issues 1, 2, and 3. If the inquiring judge elects to donate items to be auctioned, as mentioned in issue 3, the source of the donation should not be noted by the organization. See Fla. JEAC Op. 91-06.

Canon 5C also recognizes the right of a judge to serve as an officer of an organization such as Rotary International, so long as the judge does not personally participate in fund-raising activities. See Fla. JEAC Op. 87-10 (noting that a judge may serve as director of a local Rotary Club, but should not participate in fund-raising). Of course, consistent with responses on issues 1, 2, and 3, the judge, while serving as an officer of Rotary may perform those activities specifically allowed by Canon 5C(3)(b)i.

Regarding Issue 4, a judge may not participate as a featured speaker at a fund-raising roast of a prominent local figure. In its commentary to Canon 5, the supreme court has noted, "[a] judge must not be a speaker or guest of honor at an organization's fund-raising event, but mere attendance at such an event is permissible if otherwise consistent with this Code." Participation as a featured speaker at a fund-raising event is prohibited by Canon 5C(3)(b)i and iii. Under the former subsection, a judge should not personally participate in an organization's fund-raising activities. Under the latter, a judge shall not use or permit the use of judicial prestige for fund-raising activities. The context of inquiry number 4 makes it clear that it would be all but impossible for the judge to appear as a featured speaker at a fund-raising event without violating these sections of the Code of Judicial Conduct. The Committee reiterates that a judge may participate in fund-raising subject to Canon 5C(3)(b)i, but the judge's participation should be "in the realm of physically providing help to the event." Fla. JEAC Op. 00-17.

The activities mentioned in issues 6 and 8 are prohibited by Canon 5C(3)(b)iii as well as prior opinions of this Committee construing Canon 5. See Fla. JEAC Ops. 00-17, 91-6, and 88-31. The Committee notes, as it previously did in Opinion 00-17, that a very old opinion of this Committee suggested a judge may use the judge's home for the purpose of holding a charity garage sale so long as the publicity lists the name of the host as "Mr. and Mrs." instead of "Judge." See Fla. JEAC Op. 75-11. Opinion 75-11 contains no analysis, nor citation to any portion of Florida's Code of Judicial Conduct. The Committee now believes that it would be virtually impossible for a judge to host a charity event in the judge's home, particularly where people pay substantial sums of money to be present at the event, without running afoul of the prohibition concerning misuse of the prestige of judicial office. Accordingly, the Committee recedes from Florida JEAC Opinion 75-11 to the extent that it is inconsistent with the responses to the present inquiries.

For the same reason that the judge may not auction off dinner and drinks in the judge's home for charity, the judge also may not allow the judge's home to be used for fund-raising purposes. Although the inquiring judge, and perhaps others, might argue that the attraction is to be in the "historical home," it would be impossible to guard against a violation of the misuse of judicial prestige.

Finally, the Committee responds to inquiries 7 and 9 which ask whether the judge may be present at the judge's home should the judge's spouse choose to host fund-raising activities. The supreme court commentary to Canon 5 notes that "mere attendance at [a fund-raising] event is permissible if otherwise consistent with this Code." The scenario raised by issues 7 and 9, however, is not "mere attendance." The judge, in this case, could not help but appear as a co-host of the charitable event, and thus a feature of the event. Therefore, attendance at such fund-raising activities would violate Canon 5C(3)(b)(iii).

REFERENCES

Code of Judicial Conduct: Canons 5, 5C, 5C(3), 5C(3)(b)i, 5C(3)(b)iii.

Florida Judicial Ethics Advisory Committee Opinions: 00-17, 91-6, 88-31, 87-10, 75-11.

_____________

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 Judge Charles J. Kahn, Jr., Chairman, Judicial Ethics Advisory Committee, 301 Martin Luther King, Jr., Blvd., Tallahassee, FL 32399-1850

Participating Members:
Judge Charles J. Kahn, Jr.
Judge Gisela Cardonne
Judge Lisa D. Kahn
Judge Phyllis D. Kotey
Judge David Levy
Judge Scott J. Silverman
Judge C. McFerrin Smith, III
Judge Jeffrey D. Swartz
Judge Emerson Thompson
Judge Richard R. Townsend
Marjorie Gadarian Graham, Esquire

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)