FLORIDA SUPREME COURT
Judicial Ethics Advisory Committee
Opinion Number: 2008-15 (Election)1
Date of Issue: June 26, 2008
May a candidate for election to judicial office use the title “Administrative Law Judge” when describing the candidate’s years of service with the Florida Division of Administrative Hearings, even though during a portion of the candidate’s service with the division the title “Hearing Officers” was used for its administrative adjudicative officials?
ANSWER: Yes, if the candidate clarifies that for a period of time early in his service the position bore the title “hearing officer.”
A candidate for judicial office filled by election asks about the propriety of his/her use of the title “Administrative Law Judge” when describing the candidate’s years of service with the Florida Division of Administrative Hearings. The inquiry states the candidate is currently an administrative law judge with the State of Florida, Division of Administrative Hearings (DOAH), having been employed with DOAH for fifteen years and four months, beginning in February 1993. According to the inquiry, DOAH’s administrative law judges, governed by Chapter 120, Florida Statutes, are the only administrative law adjudicators authorized by the Florida Legislature to use the title, “Administrative Law Judge.” When the inquiring candidate first began working with DOAH, Chapter 120 referred to DOAH’s administrative law adjudicators as “hearing officers.” In 1996, the Florida Legislature amended Chapter 120, effective October 1, 1996, by among other things, changing the title from “hearing officers” to “administrative law judges.” According to the inquiring candidate, the responsibilities of these adjudicative officials remained essentially unchanged under the amendments, although the legislature gave them some additional authority over variances and waivers, a “supplement” to their authority to award attorneys’ fees, and a summary proceeding process. Ch. 96-159, Laws of Fla. Thus, the inquiring candidate has served eleven years and eight months of his total fifteen years and four months with DOAH as an administrative law judge, preceded by three years and eight months as a hearing officer.
Canon 7A(3)(d)(ii), Florida Code of Judicial Conduct, provides that a candidate for a judicial office shall not “knowingly misrepresent the identity, qualifications, present position or other fact concerning the candidate or an opponent.” Inherent in this canon is the need for clarity in statements by candidates to eliminate any possibility of misrepresentation of facts or confusion.
In Florida Judicial Ethics Advisory Committee Opinion 2006-16, the Committee received an inquiry from a candidate for judicial office who had served as a general master, child support hearing officer, and magistrate in family law matters and who was asking several questions related to the propriety of advertising this experience in campaign materials. Specifically, the candidate wanted to know if it would be permissible to use only the word “magistrate” when describing this prior experience, even though the Florida Legislature and Florida Supreme Court did not authorize such a title until several years after the candidate began hearing cases and that term was not in use during a substantial portion of the candidate’s term. The Committee answered that question in the negative, saying:
The fact remains ... that such officials are not judges.... Historically, ethics opinions have tended to dissuade candidates from falsely stating or implying that they have judicial experience when they do not.... Instead, such service is better described as “quasi-judicial”.... Turning to the inquiring candidate’s specific proposals, the difference between the job titles “master,” “hearing officer,” and “magistrate” may to some extent be a matter of semantics if all three performed much the same functions. The title change could simply be for appearances’ sake, or it could represent an expansion of the responsibilities that may be delegated to that official. Without knowing this, the Elections Subcommittee concludes that the candidate may not conflate the terms even for brevity’s sake.
The Committee's response in Opinion 06-16 should not be read to permit a candidate to use a title such as “magistrate" or "administrative law judge” inaccurately or without clarification in describing the candidate’s prior experience or current position, even though the term is in use during a substantial portion of the candidate’s service in that position. Regarding the position at issue here, it may be true that the responsibilities of a pre-1996 DOAH “hearing officer” were substantially the same as a post-1996 “administrative law judge,” but a DOAH “hearing officer” was not an “administrative law judge” until the Florida Legislature made it so in 1996.
In the leading case of In re Alley, 699 So. 2d 1369 (Fla. 1997), the Supreme Court of Florida found the candidate’s claim “to have circuit judicial experience, when in fact her service was that of a general master” to be misleading and a violation of Canon 7. The Florida Supreme Court agreed with the Judicial Qualifications Commission Investigative Panel’s observation “that the advertising violations were ‘very serious because they present significant impediments to an orderly and truthful electoral process, and because they raise serious questions of personal and professional integrity.’” Alley, 699 So. 2d at 1369-70.
It would be accurate, truthful, and avoid confusion, if the inquiring candidate used the term “administrative law judge” when referring to the candidate’s current position or to that portion of her/his service as such, while clarifying that at the inception of the candidate’s service with DOAH the equivalent position was that of “hearing officer.” The candidate may, as a matter of explanation or clarification, render an opinion that the legislative title change from “hearing officers” to “administrative law judges” in 1996 did not involve any substantial change in or expansion of responsibilities.
Fla. Code of Jud. Conduct, Canon 7A(3)(d)(ii).
Fla. JEAC Op. 06-16.
In re Alley, 699 So. 2d 1369 (Fla. 1997).
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: Judge Lisa Davidson, Chair, Judicial Ethics Advisory Committee, The Moore Justice Center, 2825 Judge Fran Jamieson Way, Viera, FL 32940.
Participating Members (Elections Subcommittee): Judge Kerry I. Evander, Judge T. Michael Jones, and Patricia Lowry, Esq.
Copies furnished to:
Inquiring judge (Name of the Inquiring Judge deleted)
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
1.The Judicial Ethics Advisory Committee has appointed an Election Practices Subcommittee. The purpose of this subcommittee is to give immediate responses to campaign questions in instances where the normal Committee procedure would not provide a response in time to be useful to the inquiring candidate or judge. Opinions designated with the “(Election)” notation are opinions of the Election Practices Subcommittee of the Judicial Ethics Advisory Committee, and have the same authority as an opinion of the whole Committee.