FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2010-08
Date of Issue: April 15, 2010

ISSUES

1. Whether an impropriety or appearance of impropriety would exist if a judge were to serve as the chief judge in a judicial circuit while being in a committed relationship with one of the general magistrates serving in that circuit when the judge serving as the chief judge had no role or influence in the hiring of said general magistrate.

ANSWER: Yes.

2. If the answer to question number one is "yes," whether the impropriety or appearance of impropriety continue to exist if the judge's first act upon becoming chief judge in the circuit was to execute an administrative order formally transitioning all supervisory authority over all of the general magistrates to another circuit court judge.

ANSWER: Yes.

FACTS

The inquiring circuit judge is considering seeking election to chief judge.  The judge is currently in a long-term committed relationship with a general magistrate serving within the same circuit.  The inquiring judge had no role in the decision to hire the general magistrate. 

DISCUSSION

Pursuant to Section 43.26(1), Fla. Stat. (2009) and Fla. R. Jud. Admin. 2.215, a circuit court chief judge has supervisory administrative responsibilities over the judges and general magistrates serving in that circuit.  Included within those supervisory responsibilities is the right to determine a general magistrate's responsibilities and workload, and the right to terminate a general magistrate's employment.  The inquiring judge's letter to this committee also suggests that the chief judge has input in the establishment of a general magistrate's compensation rate.

Fla. Code Jud. Conduct, Canon 2 is applicable to this case.  That Canon provides:

A judge shall  avoid  impropriety and the appearance of impropriety in all of the judge's activities.

The test for appearance of impropriety is whether the conduct identified (i.e., the judge serving as chief judge in a circuit in which the judge's "significant other" is employed as a general magistrate) creates in reasonable minds a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality and confidence is impaired, Fla. JEAC Op. 02-02.

We conclude that the judge's contemplated conduct as described in issues one and two above violates Fla. Code Jud. Conduct, Canon 2.  Notwithstanding the judge's good-faith intention to properly perform chief judge duties, there is a significant likelihood that reasonable persons would perceive that the performance of the chief judge administrative duties would be influenced by a close personal relationship with a general magistrate -- particularly with regard to decisions concerning the general magistrate's continued employment and compensation. 1

We further conclude that the appearance of impropriety would not be dissipated by the entry of an administrative order by the chief judge delegating supervisory responsibilities over the general magistrate to another judge.  Pursuant to Fla. R. Jud. Admin. 2.215(b), the chief judge is responsible to the chief justice of the supreme court for the proper exercise of the administrative duties set forth in Fla. R. Jud. Admin. 2.215.  That responsibility would remain even if the chief judge assigned a portion of those duties to another judge.  Furthermore, the chief  judge would have the power to rescind or modify the administrative order at any time.

We find support for our decision from Fla. JEAC Op. 02-02.  There, our committee determined that it would be a violation of Fla. Code Jud. Conduct, Canon 2 for the spouse of the administrative judge of the family division to be employed by the court administrator's office as a case manager in the family law division.  We found that the pivotal issue was the appearance of impropriety that could occur as the result of the fact that the spouse's employment as case manager was directly involved and related to the family law division and its operation.  We noted that although the inquiring judge indicated that the judge would have  no supervisory control or decision-making authority over the spouse's employment, promotion or termination, it was unclear to the committee how an administrative judge of the family law division would have no input regarding the duties and performance of a family law division case manager.

The inquiring judge suggests a willingness, upon election to the chief judge position, to immediately request the Supreme Court to reassign the oversight duties associated with general magistrates to another judge.  We cannot speculate as to whether the Supreme Court would grant such a request and, accordingly, decline to address this issue.

REFERENCES

Fla. Stat., Section 43.26(1) (2009)
Fla. R. Jud. Admin. 2.215
Fla. Code Jud. Conduct, Canon 2
Fla. JEAC Op. 02-02

_____________

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 T. Michael Jones, Chair, Judicial Ethics Advisory Committee, 190 Governmental Center, M.C. Blanchard Judicial Building, Pensacola, Florida  32502.

Participating Members:
Judge Roberto Arias, Judge Robert T. Benton, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Kerry I. Evander, Judge Jonathan D. Gerber, Judge T. Michael Jones, Judge C. McFerrin Smith III, Judge Richard R. Townsend.


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)

1. The facts in this case should be distinguished from the situation in which a chief judge and another judge in the circuit are related.  A circuit judge's continued employment and compensation are not determined by a chief judge.  However, the chief judge would have to ensure that division and workload assignments were properly handled in a manner so as not to suggest an appearance of favoritism.