FLORIDA SUPREME COURT
JUDICIAL ETHICS ADVISORY COMMITTEE
Opinion Number: 2001-16
Date of Issue: September 24, 2001
MAY A JUDGE SERVE AS AN APPOINTED MEMBER OF A COMMISSION OF A MUNICIPAL GOVERNMENT AND CHARGED WITH FISCAL OVERSIGHT OF GOVERNMENT FUNDS?
The inquiring judge has been asked by the mayor of the municipality where the judge serves to be a member of the municipality's Children's Commission. Its responsibilities are to "make final decisions on the Commission's funding strategy and grant making." In addition, the judge writes that the Commission's "two-prong approach" is to "prevent problems before they occur and ensure accountability for the public dollars granted to programs." (emphasis added)
In recent opinions, this committee has answered numerous inquiries from judges who are concerned about their inability to participate in events or organizations with admittedly admirable goals. The concern continues to be the isolation that judges suffer because of the Code of Judicial Conduct; they feel adherence to the Code separates them from the mainstream of their communities.
This committee has rendered several opinions regarding the participation of judges on civic boards and commissions. In each case, the answer has been structured and affected by the responsibilities of the board or commission in question. Canon 5C(3) permits a judge to serve as a director of a charitable or civic organization not conducted for profit subject to certain limitations and other requirements of the Code. The code even permits the judge to participate in the management and investment of the organization's funds.
The committee has previously opined that it is permissible for a judge to serve on the board of a supervised visitation program under the theory that such a program is "tangentially related to the courts." (See Opinion 97-11.) However it should be noted that the funds were raised on behalf of a private not-for-profit corporation.
The instant matter is better governed by Canon 5C(2) which states:
(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. (Emphasis added)
The Committee is not unmindful that participation by judges on many committees and commissions may be justified as being tangentially related to the justice system or the improvement of the law. It is this "justification" through the exceptions stated in Canon 5C(2), which has in some instances blurred the distinction between the branches of government. This blurring, which Canon 5C(2) was adopted to prevent, affects the public's perception of the independence of the courts from the executive and legislative branches of our governments.
The commentary to Canon 5C(2) states that the purpose of the prohibition is "to protect the courts from involvement in extra-judicial matters that may prove to be controversial. Judges should not accept governmental appointments that are likely to interfere with the effectiveness and independence of the judiciary." (Emphasis added)
In Opinion 99-11, we advised the inquiring judge not to participate as a member of a county fire board. We stated that serving on that board would "place the judge in the position of advising the fire department on how to spend its money and conduct its operations and advising and recommending personnel procedures." The committee recognized in that instance the "potential for conflict."
In Opinion 97-24, the committee advised the inquiring judge not to participate in an advisory board that would oversee a federal block grant secured by the local police department. The committee recognized that although the function of the advisory board "may be related to the administration of justice, the potential for conflict is high because the inquiring judge would in essence be serving as an advisor to the police department", a department of the executive branch of the local government.
In this inquiry, the judge has described the commission in question as one which involves itself in the granting of government funds and overseeing their use. This is a clear responsibility of the executive branch, no different than the operations of the police and fire departments. Although a creative justification as tangentially relating to the justice system may be made, the committee believes that the judge's participation would be a clear violation of Canon 5C(2) and advises the inquiring judge to decline the appointment being offered.
Florida Code of Judicial Conduct: Canon 5(B)(2), Canon 5(C)(3)
Florida Judicial Ethics Advisory Committee Opinion Numbers: 97-24, 99-11
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 The Honorable Scott J. Silverman, Chairman, Judicial Ethics Advisory Committee, The Richard E. Gerstein Justice Building, 1351 NW 12th St #712, Miami, FL 33125
Judges Cardonne; Kahn; Levy; Silverman; Smith; Swartz; Thompson, Jr.; Townsend; and Attorney Graham
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)