FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2005-09
Date of Issue: April 7, 2005

ISSUES

Whether the inquiring judge can ethically engage in proposed extra-judicial conduct relating to 1) serving as a member of the board of a local community children’s alliance, and 2) serving as a celebrity waiter or server at an annual breakfast for the local children’s alliance, and 3) serving on a committee concerning family violence and its reduction, and 4) serving on the board and as a presenter at a symposium of a child advocacy center, and 5) writing letters of support for different organizations, and 6) serving on committees or organizations, when they are chaired by elected officials such as the sheriff, possibly in their election year.

ANSWER: YES to Issues 1, 2, 3, and 6.
NO to Issue 4.
Declines to issue opinion as to Issue 5 .

FACTS

The inquiring judge, assigned to a family law docket, that includes domestic violence, dependency, and mental health cases, has asked a series of questions concerning the ethical propriety of various contemplated extra-judicial activities with organizations intended to benefit children and families. Specifically, the inquiry proposes the following conduct:
1) serving as a member of the board of a local community childrens’ alliance, whose goal is to benefit children and families generally, and which occasionally applies for grants and conducts fund-raising activities, and
2) serving as a waiter or server at an annual breakfast for the local children’s alliance where the event is not intended as a fund raiser, but where a fee may be charged for the breakfast, and
3) serving on a committee concerning family violence and its reduction, and
4) serving on the board and as a presenter at a symposium of a child advocacy center, where the symposium has a fund-raising component, such as a raffle or a drawing for prizes, and
5) writing letters of support for different organizations offering services for children and families who are applying for grants for funding, and
6) serving on committees or organizations, such as those described above, when they are chaired by elected officials such as the sheriff, and possibly in their election year.

DISCUSSION

Canon 5 contains the primary rules governing a judge’s extra-judicial conduct (see Canon 4 for rules concerning quasi-judicial conduct). Any discussion of contemplated extra-judicial activities, such as those described in this inquiry, must begin with the requirement in Canon 5A that a judge must conduct all extra-judicial activities so that they do not cast reasonable doubt on the judge’s capacity to act impartially as a judge, demean the judicial office, or interfere with the proper performance of judicial duties. Within that framework, judges are encouraged to engage in extra-judicial community activities. The Commentary to Canon 5A reminds us that judges’ isolation from the community in which we live is neither possible nor wise.

Several recent JEAC Opinions have described community activities that may be appropriate, as long as they are conducted in a way that does not violate other provisions of the Code or convey the impression of bias in favor of one class of litigants over another.

In JEAC Op. 04-02, we concluded that it would be improper to serve as a member of an advocacy group, but proper to serve on certain advisory councils. The Committee has given approval for judges to serve on an alcohol, drug abuse, and mental health district planning council (Fla. JEAC Op. 93-23); on a local criminal justice advisory committee (Fla. JEAC Op. 04-14); in an advisory capacity on a regional juvenile detention center’s community advisory board (Fla. JEAC Op. 94-04); as a member of a district juvenile justice board (Fla. JEAC Op. 94-31); as a member of the Victims’ Assistance Advisory Council (Fla. JEAC Op. 98-26); and as a member of an ad hoc task force created to assist and facilitate the implementation of recent legislation (Fla. JEAC Op. 99-12). However, the Committee found it improper for a judge to serve on a Criminal Justice Commission which operated a batterer’s intervention program and which appeared to have become an advocacy group (Fla. JEAC Op. 01-14). See also JEAC Ops. 98-08 and 94-38; 04-26.

Therefore, subject to compliance with other provisions of the Code, such as 2C, the extra-judicial service contemplated in this inquiry is similar to other service described above and may be appropriate, so long as the judge carefully avoids association with this advocacy group or with any advocacy group or activity that would give the appearance of bias in favor or against a class of litigants.

Canon 5C(3) also makes it clear that service with a civic or charitable organization is not without limits. The judge should decline to serve any organization that is likely to have cases before the judge or will engage frequently in adversary proceedings in the court of which the judge is a member. Nor may the judge give any such organization legal advice. The fund-raising questions contained in issues 1, 2, and 4 are difficult because this inquiry provides few details. However, with exceptions not pertinent here, Canon 5C(3)(b) prohibits the judge’s personal participation in fund-raising. While the judge may belong to civic organizations that engage in fund-raising, the judge may not personally participate in any program or presentation that has a fund-raising component.

The inquiring judge contemplates being a waiter or server at an annual breakfast for the local children’s alliance. This breakfast is conducted as a recognition of the involvement of various agencies in the community. Since the inquiry specifically states the event has no fund-raising component, it would not appear to violate the Canon 5C fund-raising prohibition. The organization charging a reasonable fee to defray the costs of the breakfast is not “fund-raising.” See JEAC Op. 05-02. However, a judge has a duty to make an in depth inquiry into the fund raising aspect of the activity, and if it is a fundraiser, the judge should respectfully decline.

The Commentary to Canon 5C(3)(b) provides that a judge may attend fund-raising events and assist in planning or organizing fund-raising activities, but may not be on the program or a part of the advertising promoting the fund-raising event. The judge’s proper role in these activities is essentially to be behind the scene, so as to insure that the prestige of judicial office is not used to advance the organization’s fund-raising goals. See also Canon 2B. JEAC Op. 05-07 contains a thorough description of a judge’s proper role in assisting in the fund-raising functions of a civic organization. There is no provision in the Code restricting service to a civic or charitable organization because it has a member, or even a chairperson, who is an elected official, such as a sheriff. However, the judge should conduct these activities in such a way that carefully avoids any suggestion of partisan political activity or of endorsing the other official’s candidacy during an election. See Canon 7A and 7D, and Fla. JEAC Ops. (Elections) 04-20, 04-21, 04-28, 04-29.

This Committee respectfully declines to issue an opinion regarding issue number 5. The inquiring judge asks for general guidance regarding letters of support for charitable or civic organizations, without giving specific details. This Committee responds to questions regarding specified proposed conduct, and without further specificity is unable to offer proper guidance.

As one final caveat, the commentary to Canon 5C(3) reminds the inquiring judge that the changing nature of organizations requires a re-examination of the ethical propriety of continuing to be associated with them. For example, an advisory committee could easily evolve into an advocacy group, causing the judge to have an ethical obligation to withdraw. The changing nature of any extra-judicial activity by a judge makes it necessary for the judge to regularly reexamine the appearances created by these activities to determine if it is proper for the judge to continue in that activity.

REFERENCES

Florida Code of Judicial Conduct: Canons 2B; 2C; 5A; 5C(3); 5C(3)(b); 7A and 7D.

Florida Judicial Ethics Advisory Committee Opinions: 93-23; 94-04; 94-31; 94-38; 98-08; 98-26; 99-12; 01-14; 04-02; 04-14; 04-20; 04-21; 04-26; 04-28; 04-29; 05-02; 05-07.

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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 Vacccaro, 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)