FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2010-15
Date of Issue: June 10, 2010

ISSUE

Whether a judge may participate as a walker in a walk-a-thon fund-raiser to benefit a charitable organization and make a personal contribution to support the cause, so long as the judge does not solicit sponsorships.

ANSWER: Yes.

FACTS

The Inquiring Judge is a supporter of a charitable organization dedicated to funding global biomedical research into the causes, prevention, treatments, and cure for a particular illness; to raising public awareness about the illness and its effects on individuals, families, and society; and to bringing hope to all who deal with the hardships of this disorder.  For 12 to 13 years prior to taking the bench, the judge participated in the organization’s local walk-a-thon fund-raiser to benefit the organization and served as captain of a team of walkers – soliciting team members and coordinating the walkers in the annual fund-raising event.  The walk-a-thon serves to raise funds for research and increase awareness about the increasing prevalence of the illness as well as the need for increased research funding to combat the complex disorder.  According to the organization’s website, walk-a-thon walkers are encouraged to raise funds through pledges, direct solicitations and sponsorships.

After taking the bench, the judge will not serve as a team captain and the new team captain is not related to the judge.  While acknowledging that soliciting funds to benefit the non-legal organization is inappropriate and prohibited by Florida’s Code of Judicial Conduct, the judge seeks guidance concerning the propriety of continued involvement with the walk-a-thon; specifically, the extent to which the judge’s participation is permissible under the Code.

DISCUSSION

The issues presented by the Inquiring Judge involve extrajudicial activities which are controlled by Canon 5 of the Florida Code of Judicial Conduct.  Canon 5 generally provides that judges must regulate extrajudicial activities to minimize the risk of conflict with their judicial duties.

Canon 5C(3) allows participation by judges in governmental, civic, or charitable activities, with certain limitations.  The Canon has historically precluded a judge from participation in the solicitation of funds or in any “other fund-raising activities.”  See former Canon 5C(3)(b)(i).  In 2008 the Supreme Court of Florida amended Canon 5C(3)(b) to delete the reference to “other fund-raising activities.”

Currently Canon 5C(3)(b) generally provides that a judge: (i) may assist charitable organizations in planning fund-raising events, “but shall not personally or directly participate in the solicitation of funds, except that a judge may solicit funds from other judges over whom the judge does not exercise supervisory or appellate authority; (ii) shall not personally or directly participate in membership solicitation if the solicitation might reasonably be perceived as coercive; and (iii) shall not use or permit the use of the prestige of judicial office for fund-raising or membership solicitation.”  (emphasis supplied).  Additionally, Canon 2B specifies that “[a] judge shall not lend the prestige of judicial office to advance the private interests of the judge or others.” 

In this regard, prior Judicial Ethics Advisory Committee opinions have held that a judge cannot be a model in a charity fashion show (JEAC Op. 88-31); participate in fundraising events by announcing the winning tickets and describing the items won (JEAC Op. 98-32); solicit the donation of coats and gloves to be distributed by the Salvation Army (JEAC Op. 92-38); ring a bell at a Salvation Army kettle (although disguised as a holiday character) (JEAC Op. 04-36); or participate in fund-raising when the judge’s participation “lends the prestige of the office and is an implicit solicitation of funds.”  (JEAC Op. 00-17, amended in part by JEAC Op. 05-07).  

On the other hand, the Committee has also found no ethical prohibition against a judge’s participation in a Habitat for Humanity build (JEAC Op. 96-27); helping referee and checking press credentials at a fund-raising sports event where the public was given no indication that the judges involved held office (JEAC Op. 89-19); helping plan fund-raising activities for educational, charitable or civic organizations (JEAC Op. 04-36); or decorating a hall where a fund-raising event is to be held or donating or assessing value to items to be auctioned for charity (JEAC Op. 01-09).  

In JEAC Op. 05-14, the Committee considered whether a newly-elected judge could participate in a charity marathon, where the judge, prior to appointment to the bench, had published letters soliciting funding for the event.  Citing Canon 2B and 4D(2)(a), the Committee held that as the marathon was intended to raise money for charity, the judge’s participation as a runner was precluded, “even if no further solicitation of funds will be done by the judge personally. Moreover, there is also the danger that the judge will be perceived by the public as, essentially, a ‘celebrity participant,’ thereby lending the prestige of the office to the charity’s indisputably good works.” Fla. JEAC Op. 05-14.  The Committee further opined that the underlying purpose of the race, i.e., to raise funds, notwithstanding the judge’s intention not to personally solicit funds, was of significant import in yielding its conclusion.  Moreover, since the marathon was not only a fund-raiser, but an event likely to be highly publicized with the judge in a very visible role, the Committee concluded that the judge’s participation would be inappropriate.  There, the Committee was concerned with the danger that the judge may be perceived by the public as a “celebrity participant,” thereby lending the prestige of the office to the charity’s indisputably good works.  The Committee distinguished prior opinions which found the judge’s participation permissible, because those activities did not involve the active solicitation of money and did not cross the line into “lending the prestige of the judicial office,” where they were done discreetly and without calling attention to the judge’s office.  

Similarly, in JEAC Op. 88-05, the Committee opined that a judge was prohibited from playing in an exhibition basketball game intended to raise money for scholarships, because the judge’s “participation implicates the prestige of [the judge’s] office for the purpose of raising funds and hence, is not permitted under Canon 5B(2).”  This was so even though the judge pointed out in the inquiry the judge was not asked to solicit funds and the judge would not be identified in pre-event advertising.

While at first blush the Committee’s prior opinions may appear contradictory or inconsistent, the Committee has observed a distinction between those activities in which the judge is, or appears to be, personally or actively participating in soliciting funds or membership and those where the judge is not, regardless of whether the identity of the judge is revealed.  Similarly, the opinions make a distinction between those activities where the prestige of the judge’s office is being used for fund-raising and those where it is not.

The Committee has not previously addressed an inquiry implicating the Supreme Court’s 2008 amendments to Canon 5C(3)(b).  Thus, the Committee will take this occasion to address those amendments as they apply to the facts of this inquiry.  

Here, the Inquiring Judge poses several questions regarding the extent to which participation in the walk-a-thon is permissible.  As noted previously, walk-a-thon walkers are encouraged to raise funds through pledges, direct solicitations and sponsorships.  However, the Inquiring Judge contemplates merely participating in the walk as a show of support for family members afflicted with the illness and for the purposes of the organization, without personally complying with the pledge-solicitation-sponsorship fund-raising component.  Simply stated, the judge proposes to participate in the walk and make a personal contribution, without soliciting donations from others.   

When the Supreme Court amended Canon 5C(3)(b) covering Governmental, Civic or Charitable activities in 2008, it also amended the Commentary to provide that

“Mere attendance at an event, whether or not the event serves a fund-raising purpose, does not constitute a violation of Canon 5C(3)(b).  It is also generally permissible for a judge to pass a collection plate at a place of worship or for a judge to serve as an usher or food server or preparer, or to perform similar subsidiary and unadvertised functions at fund-raising events sponsored by educational, religious, charitable, fraternal, or civic organizations, so long as they do not entail direct or personal solicitation.  However, a judge may not be a speaker, guest of honor, or otherwise be featured at an organization’s fund-raising event, unless the event concerns the law, the legal system, or the administration of justice as authorized by Canon 4D(2)(b)". (emphasis added).

In re Amendments to the Code of Judicial Conduct, 983 So. 2d 550 (Fla. 2008)

This new commentary language reveals a willingness by the Supreme Court to allow judges to be involved in fund-raising “so long as the [function the judge is performing] does not entail direct or personal solicitation”.  Thus, the instant inquiry is whether the judge’s unadvertised participation as a walker can be said to “entail direct or personal solicitation.”  Clearly, it does not.

On the other hand, as the judge acknowledged in the inquiry, serving as a team captain or personally soliciting funds to benefit the non-legal organization is still inappropriate and prohibited by Florida’s Code of Judicial Conduct.  Canon 5C(3)(b) continues to prohibit a judge from soliciting funds, pledges or sponsorships, or soliciting others to become walkers and thereby causing or encouraging them to pay money to such an organization.

The Canons do not preclude a judge from participating in a civic or charitable organization’s fund-raising event, so long as the event does not entail direct or personal solicitation.  Thus, a judge may purchase a ticket or pay an entry fee at an event that serves as a fund-raiser, such as a dinner, a concert, a play, a golf tournament, or a walk-a-thon, and the judge may attend and eat, hear the symphony, view the play, play a round of golf with other participants, or walk.  See, Arizona JEAC Op. 00-06 (and citations to other States similarly holding this conduct is allowed).

Likewise, under the facts herein, it cannot be said that the judge might be impermissibly lending the prestige of the office to the organization by merely walking in the event where someone might recognize the judge.  It is akin to the judge serving as an usher, food preparer or server at a fund-raiser.  The Supreme Court listed these as examples of conduct allowed by Florida’s Code of Judicial Conduct.  See Commentary, Canon 5C(3)(b).

The Commentary to Canon 5(A) states, “Complete separation of a judge from extra-judicial activities is neither possible nor wise; a judge should not become isolated from the community in which the judge lives.  For that reason, judges are encouraged to participate in extrajudicial community activities.”

Therefore, the Committee advises that a judge may participate as a walker in a walk-a-thon fund-raiser to benefit a charitable organization and make a personal contribution to support the cause, so long as the judge does not solicit sponsorships.  To hold otherwise would tend to isolate the judge “from the community in which the judge lives,” a consequence to be avoided, according to the Commentary to Canon 5A.

Additionally, a prohibition against merely paying a registration fee and walking in the walk-a-thon would prevent the judge from personally supporting an afflicted family member or friend.  Such a result would tend not only to isolate judges from the community but also would impose an intolerable and unreasonable restriction on judges and their families.  The inquiring judge should be allowed to participate as requested.

To the extent that this opinion conflicts with JEAC Op. 05-14, that opinion is hereby withdrawn, in consideration of the amendments to Canon 5C(3)(b).

Minority View

 A minority of the Committee would advise the judge that the proposed conduct violates Canons 2B and 5C(3)(b).  The minority would advise that, as the walk-a-thon is intended to raise money for the organization, the judge may not actively participate as a walker.  Canon 2B and 5C(3)(b); JEAC Op. 05-14; JEAC Op. 89-19.  The minority agrees that the judge may, however, participate as a volunteer in organizing, planning or otherwise assisting behind the scenes on the day of the event.

The minority notes that although the judge proposes to participate in the walk-a-thon without satisfying the fundraising component, the underlying and advertised purpose of the walk-a-thon is to raise funds for the organization.  Walk-a-thon walkers are encouraged to raise funds through pledges, direct solicitations and sponsorships.  The reasonable presumption will be that each walker did so.  Even if the judge does not solicit pledges, donations or sponsorships from others, such would not be known or discernible to anyone other than the judge.  The proposition that the judge may participate in the walk, absent the solicitation aspect, does not change the nature of the walk as a fundraiser.  Additionally, the minority concludes that the Inquiring Judge’s proposition does not overcome the impermissible appearance that the judge is lending the prestige of the judicial office to the charitable organization by participating in its fundraising event, as was the concern in JEAC Op. 05-14

Canon 5C(3) allows limited participation in charitable fundraising activities.  The minority of the Committee observes that the Inquiring Judge may support the walk-a-thon in ways other than walking.  The Florida Code of Judicial Conduct provides, and the Committee has consistently held, that judges may assist in organizing and planning fund-raising events.  See Fla. Code Jud. Conduct, Canon 5C(3)(b)(i); JEAC Op. 01-09 (judge may decorate a hall where a fund-raising event is to be held and may assist in setting the value of items to be auctioned at a fundraising event); JEAC Op. 89-19 (judge may help referee and check press credentials at a fund-raising sports event where the public is given no indication that the judges involved held office); JEAC Op. 00-17 (judge could not actively participate in a school fundraising activity by working in a concession stand, unless the role performed in the concession stand did not involve active solicitation of funds or selling food); JEAC Op. 04-36 (judges may play supportive roles in fundraising events, such as planning and scheduling).

According to the organization’s website, it seeks volunteers in many capacities on the day of the event, including checking in participants, providing encouragement at water stops and cleaning up after the event. Therefore, the minority of the Committee opines that the Inquiring Judge may volunteer and be involved on the day of the event, for example, as part of the set-up/break-down crew or as a check-in, rest stop or parking attendant, etc., so long as, even in this capacity, no indication is given that the judge holds judicial office.

REFERENCES

In re Amendments to the Code of Judicial Conduct, 983 So. 2d 550 (Fla. 2008)

Fla. Code Jud. Conduct, Canons 2B, 4D(2)(a), 4D(2)(b), 5, 5(A), 5B(2), 5C(3), 5C(3)(b), 5C(3)(b)(i)

Fla. JEAC Ops. 05-14, 05-07, 04-36, 01-09, 00-17, 98-32, 96-27, 92-38, 89-19, 88-31, 88-05

Ariz. JEAC Op. 00-06

_____________

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 T. Michael Jones, Patricia E. Lowry, Esquire, Judge José Rodriguez, 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)