FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2009-05
Date of Issue: February 15, 2009

ISSUE

May a retired judge sit as a senior judge and as a traffic infraction hearing officer in the same judicial circuit?

ANSWER: Yes.

FACTS

The inquiring judge is retired and enjoys the status of a senior judge.  The circuit is considering using senior judges as traffic hearing officers.  The inquiring judge is concerned as to whether or not a judge may sit as a senior judge and as a traffic hearing officer.  Each position is compensated separately from a different funding source.

DISCUSSION

A civil traffic hearing officer system was established by the legislature by the authority of Article V, Section 1, of the Florida Constitution.  The qualifications and duties of hearing officers are set forth in §318.31 through §318.36, Florida Statutes.  Hearing officers serve at the pleasure of the Chief Judge and have no definite term of office.  Furthermore, they must be members of the Florida Bar.  A civil traffic hearing officer performs the same function as a county judge sitting in traffic court.

Senior Judges are defined in the Florida Rules of Judicial Administration which were adopted pursuant to Article V, Section 2, of the Florida Constitution.  A senior judge is a retired judge who is eligible to serve on assignment to temporary judicial service.  The Chief Judge is authorized to assign senior judges to temporary service pursuant to Rule 2.215, Fla. R. Jud. Admin.  A senior judge is also defined in §25.073, Florida Statutes, which, together with the Code of Judicial Conduct, provides that a senior judge cannot practice law.

Therefore, a senior judge is an Article V judge with full judicial authority within the scope of the judge’s temporary assignment.  A traffic hearing officer is a quasi-judicial officer whose office is authorized by Article V of the Florida Constitution with duties defined by the legislature.  In each case, the individual serves at the pleasure of the Chief Judge. 

The Code of Judicial Conduct, with certain specific minor exclusions, applies to senior judges.  Additionally, Canons 1, 2A, and 3 of the Code applies to traffic hearing officers. Application Section, Code of Judicial Conduct.  However, the legislature has determined that hearing officers are subject to The Florida Bar Code of Professional Responsibility, and not the Judicial Code of Ethics.  §318.36, Florida Statutes.

This Committee can find no provision of the Code of Judicial Conduct that would prohibit a senior judge from sitting as a traffic hearing officer.  Although a hearing officer must be an attorney, the hearing officer is not practicing law.  Senior judges and hearing officers both serve compatible judicial functions.  Thus, a judge’s service as a hearing officer would not conflict with Canons 4 and 5 of the Code in that the dual functions would not (1) cast reasonable doubt on the judge’s capacity to act impartially; (2) demean the judicial office; or (3) interfere with the proper performance of judicial duties.

For the reasons set forth above, service as a senior judge and traffic hearing officer is not in conflict with the Code of Judicial Conduct.  It is this Committee’s responsibility to interpret the Code of Judicial Conduct, and give guidance to judges under the Code.  It is not this Committee’s responsibility to give legal opinions under Florida Statutes nor to render opinions regarding The Florida Bar Code of Professional Responsibility.

REFERENCES

Article V, Florida Constitution
Cannons 1, 2, 3, 4, and 5, Code of Judicial Conduct
§25.073, §318.31 through 318.36, Florida Statutes
Rule 2.215, Fla. R. Jud. Admin.

_____________

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 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. See 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. See Id.

The opinions of this Committee express no view on whether any proposed conduct of an inquiring judge is consistent with the substantive law which governs any proceeding over which the inquiring judge may preside.  This Committee only has authority to interpret the Code of Judicial Conduct, and therefore its opinions deal only with the issue of whether the proposed conduct violates a provision of that Code.

For further information, contact: Judge C. McFerrin Smith, III, Chair, Judicial Ethics Advisory Committee, 101 N. Alabama Avenue, Suite 437, Deland, FL 32724.

Participating Members:
Judge Roberto Arias, Judge Robert T. Benton, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Kerry I. Evander, Judge T. Michael Jones, Patricia E. Lowry, Esquire, Judge C. McFerrin Smith, III, Judge Richard R. Townsend, Judge Dorothy Vaccaro.


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)