FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2005-02
Date of Issue: January 31, 2005

ISSUES

May a judge be a guest speaker at a dinner honoring law enforcement and other public safety officers when the event is not a fundraiser?

ANSWER: Yes.

FACTS

The inquiring judge has been invited to speak at a Knights of Columbus dinner honoring law enforcement and other public safety officers. The organization has advised the judge the event is not "intended as a fundraiser." It is anticipated that three to five business sponsors will donate up to $250 each to underwrite the event. Dinner tickets "usually" sell for ten dollars; however, 30 to 40 dinners will be complimentary. The financial goal of the event is to "break even." The organization acknowledges there may be a slight overage, which will then be set aside for future dinners designated for the same purpose.

DISCUSSION

The provisions of the Code of Judicial Conduct relevant to this inquiry are found in Canons 4 and 5. Canon 4D(2)(a) provides that a judge "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. . . ." See Fla. Code Jud. Conduct, Canon 4D(2)(a). In addition, Canon 4D(2)(d) provides that a judge "shall not use or permit the use of the prestige of judicial office for fund-raising or membership solicitation." See Fla. Code Jud. Conduct, Canon 4D(2)(d). However, a judge "may assist [a non-profit] 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 the judge may solicit funds from other judges over whom the judge does not exercise supervisory or appellate authority. . . ." See Fla. Code Jud. Conduct, Canon 5C(3)(b)(i).1

The answer to this inquiry rises and falls on the application of the term "fund-raising." Some inquiries provide facts dictating a simple answer. We have previously opined that a judge may not be a featured speaker at a designated fundraiser. See Fla. JEAC Ops. 01-09; 99-15. We have also opined that a judge may not receive an award at a fund-raising event regardless of the nature of the organization. See, e.g., Fla. JEAC Ops. 99-09; 98-10; and 90-20. In each of these inquiries, the fund-raising nature of the event was clear.

In a recent elections opinion this Committee suggested that a common sense approach be used and that charging a fee to defray costs and expenses is not fund-raising. The Committee further opined that merely because the sponsor makes an incidental profit does not result in the event being a fund-raiser, unless the purpose of the event was to raise funds. See Fla. JEAC Op. 04-27 (Elections).

The facts in this inquiry, however, do not provide an easy application of the term "fund-raising." They raise the question of whether the term turns on the intent of the organization, the activity undertaken, and/or the actual financial outcome of the event. We believe all three areas to be relevant to the ultimate decision.

There are certain indicia of fund-raising that shed light on whether an activity constitutes fund-raising. They include: (1) the goal of the event; (2) the manner of financing the event; (3) whether the speaker's name or office is used in any manner to obtain funds; (4) the activities that take place before and during the event; and (5) the profit, if any, to be realized. Here, the event is not intended to be a fundraiser. The goal is to honor law enforcement and pubic safety officers - not raise money. Nevertheless, sponsors contribute money to underwrite the event. We do not know whether the invited speaker's name or office has been or is intended to be used in the solicitation of sponsorships.

There is no indication the organization intends to sell advertisements in a journal, hold a silent auction, or conduct a raffle. The price of the dinner would appear to suggest little hope of a profit, especially given the fact that a number of the dinners are provided complimentary. The organization has indicated, however, there may be some remaining funds after all expenses are paid.

From the facts known at the present time, this does not appear to be a fund-raising event. This would permit the judge to participate as a guest speaker. However, if either the judge's name or office is used in any manner to obtain the sponsorships or if any of the other above-described indicia of fund-raising (journals, auctions, raffles, etc.) occur either before or during the event, the character of the event then crosses the line into the side of fund-raising.

We understand the difficulty in applying canons that appear on their face to be self-evident to facts which obfuscate their clarity. We acknowledge the importance of the judiciary's participation in events that are designed to honor those who toil in the justice system. See, e.g., Fla. Code Jud. Conduct, Canon 4B. We are also aware of how important it is for the judiciary to contribute to the community in which it serves. See Commentary Fla. Code Jud. Conduct, Canon 5A.2 Nevertheless, opening the Pandora's Box of fund-raising only a crack can lead to abuse. For this reason, the box must remain closed.

We therefore answer the inquiry in the affirmative - the judge may participate as a guest speaker - with the following caveat. The judge should inquire whether any of the other indicia of fund-raising outlined above are intended to be used or have been employed in the process of organizing the dinner. If so, then our answer to the inquiry would be "no" - the judge may not participate as a guest speaker.3

REFERENCES

Canons 2, 4, and 5, Fla. Code Jud. Conduct

Fla. JEAC Opinions: 90-20, 98-10, 99-09, 99-15, 01-09, and 04-27 (Elections).

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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 Judge Richard R. Townsend, Acting Chair, Judicial Ethics Advisory Committee, Post Office Box 1018, Green Cove Springs, Florida 32043.

Participating Members:
Judge Robert Benton, Judge Karen Cole, Judge Lisa Davidson, Judge Melanie May, Judge Michael Raiden, Judge Jose Rodriguez, Judge McFerrin Smith, III, Judge Emerson R. Thompson, Jr. Judge Richard R. Townsend, Judge Dorothy Vaccaro, Ervin Gonzalez, Esquire, and Marjorie Gadarian Graham, Esquire.


Copies furnished to:
Justice Peggy Quince
Thomas D. Hall, Clerk of Supreme Court
All Committee Members
Executive Director of the J.Q.C.
Office of the State Courts Administrator
(Name of inquiring judge deleted from this copy)

1 The commentaries to Canon 4(D)(1) and 5(C)3 are identical: "A judge must not be a speaker or guest of honor at an organization's fundraising event, but mere attendance at such an event is permissible if otherwise consistent with this Code."

2 "Complete separation of a judge from extra-judicial activities is neither possible nor wise; a judge should not become isolated from the community in which the judge lives."

3 A minority suggests that prior to issuing an opinion this Committee should request that the inquiring judge make further inquiry to resolve the factual issues discussed in the majority opinion. The minority further suggests that the inquiring judge should ascertain whether the benefactors/sponsors of the event have any cases pending before the judge. If so, there may be an appearance of impropriety. See Canon 2B