FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2007-03
Date of Issue: February 20, 2007

ISSUES

May a judge accept an appointment to membership on the Taxation and Budget Reform Commission, created in article xi, section 6 of the Florida Constitution?

ANSWER: Yes.

FACTS

The inquiring judge was recently offered an appointment to the Taxation and Budget Reform Commission by the Speaker of the Florida House of Representatives. One purpose of the proposed appointment is to ensure that the judiciary has some input into the issues that come before the Commission.

The Commission, created in Article XI, Section 6 of the Florida Constitution, comes into existence in 2007 and every twentieth year thereafter. Art. XI, § 6(a), Fla. Const.  Members are selected by the governor, the speaker of the house and the president of the senate.  Art. XI, § 6(a)(1)-(3), Fla. Const.

Funding of the state court system is the subject of Article V, Section 14 of the Florida  Constitution.  The Commission is to “examine the state budgetary process, the revenue needs and expenditure processes of the state, the appropriateness of the tax structure of the state, and governmental productivity and efficiency; review policy as it relates to the ability of state and local government to tax and adequately fund governmental operations and capital facilities required to meet the state's needs during the next twenty year period; determine methods favored by the citizens of the state to fund the needs of the state, including alternative methods for raising sufficient revenues for the needs of the state; determine measures that could be instituted to effectively gather funds from existing tax sources; examine constitutional limitations on taxation and expenditures at the state and local level; and review the state's comprehensive planning, budgeting and needs assessment processes to determine whether the resulting information adequately supports a strategic decision making process.”  Art. XI, § 6(d), Fla. Const.

DISCUSSION

Canons 4 and 5 of the Code of Judicial Conduct govern this inquiry. Generally, both of these canons encourage judges to engage in activities that relate to improving the law, the legal system, the judicial branch, or the administration of justice. While engaging in such activities, however, judges must comply with other provisions of the Code and must specifically avoid conduct or words that 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. See Canons 4A and 5A, Fla. Code Jud. Conduct.

Canon 4D states, in part, that a judge may “serve as a member, officer, director, trustee or non-legal advisor of an organization or governmental agency devoted to the improvement of the law, the legal system, the judicial branch, or the administration of justice.”  Canon 4(D), Fla. Code Jud. Conduct (emphasis added).  However, Canon 4D(1) prohibits such membership if it is likely that the organization will be engaged in proceedings that would ordinarily come before the judge, or be engaged frequently in adversary proceedings in the courts.

Canon 5C(2) provides that “[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, the judicial branch, or the administration of justice.”  (Emphasis added.)

Over the years, numerous inquiries have been submitted to this committee and its predecessor, the Committee on Standards of Conduct Governing Judges. As noted in the commentary to Canon 4B, judges are in a unique position, by virtue of their training and experience, to make valuable contributions to boards and commissions charged with carrying out the public’s business.

Previous Committee opinions have found it proper for a judge to serve on some advisory councils. The committee has thought it appropriate for judges to serve on an alcohol, drug abuse, and mental health district planning council,see Fla. JEAC Op. 88-24 and 88-30, on the board of directors of a DUI countermeasure school, see Fla. JEAC Op. 93-23, in an advisory capacity on the regional juvenile detention center's community advisory board, see Fla. JEAC Op. 94-04, as a member of a district juvenile justice board, see Fla. JEAC Op. 94-31, and as a member of the Victim's Assistance Advisory Council. See Fla. JEAC Op. 98-26.
By contrast, in Fla. JEAC Op. 01-16, the committee concluded that a judge could not serve as an appointed member of a commission of a municipal government charged with fiscal oversight of government funds. In that opinion, we noted that the commission involved itself in the "granting of government funds and overseeing their use." We stated that such a function is a "clear responsibility of the executive branch, no different than the operations of the police and fire departments." Id.

This committee has also advised inquiring judges not to participate as members of a county fire board, an advisory board that would oversee a federal block grant, and an advisory commission on alcohol and tobacco. See Fla. JEAC Ops. 99-11, 97-24, and 94-19. These opinions have hinged upon the potential for conflict for the judge.

In Fla. JEAC Opinion 81-06 the committee expressed the opinion that a judge could not properly serve on the state's Parole and Probation Commission. The committee noted, "these appointments are political in nature and would involve the judge in the political process of the Executive Department . . . ." See also Fla. JEAC Op. 82-11, in which the committee expressed the opinion that a judge could not ethically serve on a mayor's charter revision committee.

The constitutional functions of the Taxation and Budget Reform Commission do not appear to pose the risk of conflict described in Canon 4D(1).  In addition, each item of the Commission’s responsibility is directed toward improving the law and its administration. Narrowing the subject to taxation and budget matters does not detract from its purpose of improving the law and the administration of the law. Unless the Commission were to exceed its constitutional mandate or encounter unexpected litigation, nothing in Canon 4 prohibits the inquiring judge from accepting the appointment and serving on the Commission.

The limitations on judges imposed by Canon 5 do not apply here. The purpose of the Commission, as stated in the constitution, is to improve the law, precisely the policy role Canon 5C(2) describes as approved for judges. The fact that the judicial branch’s portion of the state budget is small does not mean the Commission’s involvement in improving the judicial branch will be small.
                       
Finally, the Taxation and Budget Reform Commission is not a part of either the executive or legislative branch of government. It is an independent constitutional Commission. Therefore, it cannot be said that a judge’s membership on the Commission would be an intrusion on the separation of powers, prohibited by Article II, § 3, Fla. Const. and Canons 4 and 5, Fla. Code Jud. Conduct.
                                               
This committee is of the opinion that nothing in the Code of Judicial Conduct prevents the inquiring judge from accepting an appointment to the Taxation and Budget Reform Commission.

REFERENCES

Florida Constitution, Article II, § 3, Article V, § 14, and Article XI, § 6.

Florida Code of Judicial Conduct: Canons 4, 4A, 4B, 4D, 4D(1), 5, 5A, 5C(2).

Florida Judicial Ethics Advisory Committee Opinions:  01-16, 99-11, 98-26, 97-24, 94-31, 94-19, 94-04, 93-23, 88-30, 88-24, 82-11 & 81-06.

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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 the judge or judicial candidate. Its opinions are advisory to the inquiring party, to the Judicial Qualifications Commission and 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 Qualifications 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 Robert T. Benton, II, Chair, Judicial Ethics Advisory Committee, 301  S. MLK Jr. Blvd. Tallahassee, FL 32399.

Participating Members:
Judge Robert T. Benton, II, Judge Michael Raiden, Judge Lisa Davidson, Judge McFerrin Smith, Judge Leslie B. Rothenberg, Judge Emerson R. Thompson, Jr., Judge Richard R. Townsend, Judge T. Michael Jones, Marjorie Gadarian Graham, Esquire & Patricia E. Lowry, 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
Inquiring Judge (Name of inquiring judge deleted from this copy)