FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2010-33
Date of Issue: October 20, 2010

ISSUE

Whether a judge may accept the “Spirit of Excellence” Government Leader of the Year Award from an organization whose purpose is to provide business training and networking opportunities for women, where the award will be presented at a ceremony not advertised as a fundraiser but at which event expenses will be paid by the sale of tickets to the event and by congratulatory, business or personal ads in an event publication and where the organization will conduct a raffle to raise money for a scholarship fund.

ANSWER: No.

FACTS

The inquiring judge has been notified that an organization devoted to providing business training and networking opportunities for women wishes to present the judge with the “Spirit of Excellence” Government Leader of the Year Award at its Annual Awards Ceremony.  According to the inquiring judge the event “is not advertised as a fundraiser,” although expenses of the event are covered by the sale of tickets and sale of congratulatory, business, or personal ads in an event publication, and, to the extent that revenues from the sale of tickets and ads exceed expenses, the event may raise money for the organization. Additionally, the organization will conduct a raffle at the event to raise money for a scholarship fund.

DISCUSSION

Canon 2B of the Code of Judicial Conduct states, in pertinent part:

A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge.

Canon 5C relates to a judge’s governmental, civic or charitable activities. Canon 5C(3)(b) provides, in relevant part:

A judge as an officer director, trustee or non-legal advisor [of an educational, religious, charitable, fraternal, sororal or civic organization not conducted for profit], or as a member or otherwise:

(i) may assist such an organization in planning fund-raising and may participate in the management and investment of the organization’s funds, but shall not personally or directly participate in the solicitation of funds…;
(ii) shall not personally or directly participate in membership solicitation if the solicitation might reasonably be perceived as coercive;
(iii) shall not use or permit the use of the prestige of judicial office for fund-raising or membership solicitation.

(Emphasis supplied.)  The Commentary to Canon 5C(3)(b) provides:

Mere attendance at an event, whether the event serves a fund-raising purpose, does not constitute a violation of Canon 5C(3)(b)…. 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 supplied.)

The subject organization is not an “organization devoted to the improvement of the law, the legal system, the judicial branch, [and] the administration of justice” as authorized by Canon 4D(2)(b).  Thus, the judge may not attend the event for the purpose of receiving the Government Leader of the Year Award, i.e., be a “guest of honor” or “be featured” at the event if the event is a fundraiser. 

While the inquiring judge states that the event is not advertised as a fundraiser, the Committee notes that whether or not the event is actually a fundraiser for the organization is dependent upon an objective consideration of all the relevant and material facts related to the contemplated conduct.  The organization is selling tickets and congratulatory, business, or personal ads in an event publication to cover event expenses.  To the extent that revenues from the sale of tickets and ads exceed expenses, the event may raise money for the organization.  Additionally, the organization will conduct a raffle at the event to raise money for a scholarship fund.  The committee concludes on these facts that the event is actually a fundraiser and, thus, the judge may not attend for the purpose of receiving the Government Leader of the Year Award.

We have opined repeatedly that judges may not participate in fundraisers where the event’s purpose is not law-related.  See Fla. JEAC Op. 09-07 (judge may not receive award at fundraiser for organization that is mainly involved in education programs because event would not concern the law, the legal system or the administration of justice, and the funds raised would not be used for law related purpose); Fla. JEAC Op. 08-22 (judge may not appear as “dignitary guest” in fund-raising ballet, sponsored by ballet company organized as charitable organization, and allow company to use judge’s name and title to advertise event); Fla. JEAC Op. 03-16 (judge may not participate in voluntary bar association’s fundraising event by providing goods for sale or auction, performing skit, displaying talent, being a model, or otherwise performing at event); Fla. JEAC Op. 01-09 (judge may not participate as featured speaker at fundraising roast of prominent local figure); Fla. JEAC Op. 00-31 (judge may not act as chairperson of kickoff event for fundraising organization); Fla. JEAC Op. 99-15 (judge may not be guest speaker at college alumni banquet, when banquet is main fund-raiser for alumni club); Fla. JEAC Op. 98-32 (judge may not participate in charity fashion show by announcing winning tickets and describing items won); Fla. JEAC Op. 90-20 (judge may not participate as guest of honor at charitably-funded institution’s dinner where patrons may purchase journal advertisements dedicated to the judge, and distribution of journal is one of institution’s main fundraising activities); and Fla. JEAC Op. 90-12 (judge may not serve as chairman of golf tournament, even though judge would neither participate in solicitation of funds nor be identified as judge in materials associated with tournament, where entity sponsoring tournament is nonprofit organization which raises funds to support sports activities).

In Fla. JEAC 99-09 the Committee advised a judge that she could not receive an award and be inducted into a County Women’s Hall of Fame at an annual luncheon where program advertisements had been sold to raise funds for the sponsoring organization.  We noted that while the luncheon itself was not a fundraiser, the organization’s “major source of income [was] through advertising in the program,” which was a souvenir journal in which the public could purchase ads congratulating the inductee(s).  Thus, the ultimate purpose of the luncheon was to raise funds for the organization.

In conclusion, the fact that the sponsoring organization does not bill an event as a fundraiser is not dispositive.1   If the event has the characteristics of a fundraiser, it must be considered as such, labels notwithstanding.  Further, as a practical matter, whether the event will realize a profit is unknowable in advance, and so the likelihood of a profit cannot be used to determine if the event is intended to be a fundraiser.

The Committee’s prior opinions suggest the
following test to evaluate whether an organization’s event must be construed by a judge to be a fundraiser:
          a.  If an organization holds an event, and sells tickets for the dinner at a price which roughly corresponds to the costs of putting on the event, then it is not a fundraiser.  It is the judge’s responsibility to ensure the ticket price meets this requirement.
          b.  If the ticket price is more than the costs of putting on the event, or if other aspects of the event have a fundraising purpose, then it is a fundraiser and the judge may not participate as a part of the draw (featured speaker, guest of honor, etc.)  A non-exhaustive list of such aspects include:

i. Selling ads for a program.
ii. Raffle.
iii. Auction of contributed items.
iv. Similar activities at or associated with the event to raise money for the organization or its causes.

The Committee notes that this analysis has to do only with whether the judge can permit the judge’s name to be associated with the event as a feature of it.  The Committee reminds the inquiring judge that nothing prohibits the judge from contributing to or attending a fundraising event.  It is the use of the judge or the judge's name as part of the draw (either as a speaker, guest of honor, or other feature) that is impermissible.

Finally, while the inquiry does not reflect that the sponsoring organization practices invidious discrimination on the basis of gender or that the judge holds membership in the organization, the committee draws the judge’s attention to the Commentary to Canon 2C, which states, in pertinent part:

Although Section 2C relates only to membership in organizations that invidiously discriminate on the basis of race, sex, religion or national origin, a judge’s membership in an organization that engages in any discriminatory membership practices prohibited by the law of the jurisdiction also violates Canon 2 and Section 2A and gives the appearance of impropriety.  In addition, it would be a violation of Canon 2 and Section 2A for a judge to arrange a meeting at a club that the judge knows practices invidious discrimination on the basis of race, sex, religion or national origin in its membership or other policies, or for the judge to regularly use such a club.  Moreover, public manifestation by a judge of the judge’s approval of invidious discrimination on any basis gives the appearance of impropriety under Canon 2 and diminishes public confidence in the integrity and impartiality of the judiciary, in violation of Section 2A.

(Emphasis supplied.)  The Committee advises every judge to take steps to ensure that an organization does not practice invidious discrimination in its membership or other activities before agreeing to attend the organization’s event or to receive an award from an organization, notwithstanding the fundraising issue.

          Minority View

Two members of the Committee would conclude on these facts that the judge’s contemplated conduct is permissible. The judge would not be lending the prestige of judicial office to advance the private interests of the judge or the organization merely by attending the organization’s Annual Awards ceremony and accepting the Government Leader of the Year Award.  Nor does the minority believe that the judge’s conduct would convey an improper impression that the organization or its members are in a special position to influence the judge.

From the facts disclosed by the inquiring judge, the minority concludes that the event does not serve a fundraising purpose. The organization is not advertising the event as a fundraiser; the organization simply is covering the event’s expenses by the sale of tickets and congratulatory, business, or personal ads in an event publication; and the organization will be deemed to have raised money only to the extent that revenues from the sale of tickets and ads exceed expenses.

The minority believes this event is clearly distinguishable from that described in Fla. JEAC 99-09, in which the Committee advised a judge that she could not receive an award and be inducted into a County Women’s Hall of Fame at an annual luncheon where program advertisements had been sold to raise funds for the sponsoring organization.  We noted there that while the luncheon itself was not a fundraiser, the organization’s “major source of income [was] through advertising in the program,” which was a souvenir journal in which the public could purchase ads congratulating the inductee(s).  Thus, the ultimate purpose of the luncheon in that inquiry was to raise funds for the organization.

The judge’s participation would be limited to appearing at, receiving recognition in the form of the “Spirit of Excellence” Government Leader of the Year Award at, and being a guest of honor at, the event.  The judge is not going to solicit any donations or memberships, collect any monies, or make any payments.

The minority believes this position is consistent with the committee’s prior opinions which concluded that judges may participate in similar civic or charitable events, so long as the event is not a fundraiser.  In Fla. JEAC Op. 98-10 the committee opined that a judge may attend an awards dinner and ceremony sponsored by an organization which provided child abuse services at which the organization would honor family attorneys and mediators and present an award to the judge, assuming the event was not fundraiser.  While that opinion dealt with Canon 4, the opinion turned on the issue of whether the event was a fundraiser.  We observed that the organization would not be “using the judge’s name or title on its invitations or solicitations for attendance at the event;” that the organization advised the judge the event was “not a fund raiser;” and that the ticket sales proceeds were “to be used to defray the expenses of the event.”

While the organization will conduct a raffle at the event to raise money for a scholarship fund, this appears to be an incidental activity and not a substantial part of the event.  Thus, the minority does not perceive that the conduct of the raffle transforms the event into a fund-raising activity.  The minority is aware that a number of civic and charitable organizations, including Rotary clubs and churches, conduct raffles as an incidental part of a meeting or event. The raffle at the subject awards dinner does not appear to be a major part of the purpose of the event, based upon the judge’s inquiry. Thus, it does not convert this event to a fundraiser in the opinion of the minority.

As with Fla. JEAC Op. 08-17, the inquiring judge should make reasonable and continuous efforts to ensure that participating in the event falls clearly within the parameters of the Code of Judicial Conduct.      

REFERENCES

Fla. Code Jud. Conduct, Canons 2B, 5A, 5C(3)(b), Commentary to 2C and 5C(3)(b)
Fla. JEAC Ops. 09-07, 08-22, 03-16, 01-09, 00-31, 99-15, 99-09, 98-32, 98-10, 90-20, 90-12

_____________

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 Kerry I. Evander, Chair, Judicial Ethics Advisory Committee, Fifth District Court of Appeal, 300 South Beach Street, Daytona Beach, Florida  32114-5002.

Participating Members:
Judge Roberto Arias, Judge Robert T. Benton, Dean Bunch, Esq., Judge Lisa Davidson, Judge Kerry I. Evander, Judge Jonathan D. Gerber, Judge T. Michael Jones, Patricia E. Lowry, Esq.,  Judge Jose 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)

1. “What's in a name? That which we call a rose by any other name would smell as sweet.” William Shakespeare (1564 - 1616), "Romeo and Juliet", Act 2 scene 2