FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2010-38
Date of Issue: December 7, 2010

ISSUE

May a judge sit on the board of a charitable foundation whose principal source of funds is the owner of a for-profit rehabilitation program to which mis-demeanants are routinely directed by the inquiring judge?

ANSWER: No.

FACTS

The inquiring judge has been asked to serve on the board of a foundation, which the inquiring judge describes as “a non-profit organization that makes a quarterly humanitarian award and engages in some charitable activities.” Apparently its sole source of funding is an individual who is the “proprietor of a popular for-profit rehabilitation program to which misdemeanants are routinely directed by” the inquiring judge and other county judges.  The inquiry notes that the foundation and the rehabilitation program “have similar names,” and that the rehabilitation program company’s principal is a social friend and a supporter, but not a campaign contributor, and that the inquiring judge has no financial or proprietary interest in any pertinent entity.

DISCUSSION

The Code of Judicial Conduct explicitly authorizes a judge to “serve as an officer, director, trustee, or non-legal advisor of an educational, religious, charitable, fraternal, sororal, or civic organization not conducted for profit, subject to [certain] limitations and the other requirements of this Code.”  Fla. Code Jud. Conduct, Canon 5C(3). 

However, the Code also provides that a judge may not serve as an officer, director, trustee or advisor to an organization that frequently appears in court proceedings of a kind the judge hears.  See Fla. Code Jud. Conduct, Canon 5C(3)(a); Fla. JEAC Op. 04-26.  Canon 5C(3)(a) provides:

A judge shall not serve as an officer, director, trustee or non-legal advisor if it is likely that the organization

(i) will be engaged in proceedings that would ordinarily come before the judge, or

(ii) will be engaged frequently in adversary proceedings in the court of which the judge is a member or in any court subject to the appellate jurisdiction of the court of which the judge is a member. 

A majority of the committee note that, although the non-profit foundation and the for-profit rehabilitation program are separate legal entities, the principal of both entities is the same and they have similar names.  Further, the sole source of funds for the non-profit organization is apparently from the for-profit rehabilitation program.  All of these facts suggest to the committee that the public would view the two entities as alter egos of one another and therefore would view the inquiring judge's service on the board of the non-profit foundation as involvement with the for-profit rehabilitation program.  Viewed in that light, a majority of the committee believe that the inquiring judge's referral of misdemeanants to the rehabilitation program, which is so closely linked to the foundation on whose board the inquiring judge proposes to serve, would create the appearance of a violation of Canon5C(3)(a)'s prohibition against a judge serving on a board of an organization which frequently appears in court proceedings of a kind which the judge hears.

Extrajudicial activities must also conform to “the other requirements of the Code,” including Code of Judicial Conduct, Canon 5A, which provides:

A judge shall conduct all of the judge’s extra-judicial activities so that they do not:   (1) cast reasonable doubt on the judge's capacity to act impartially as a judge; (2) undermine the judge’s independence, integrity, or impartiality; (3) demean the judicial office; (4) interfere with the proper performance of judicial duties; (5) lead to frequent disqualification of the judge; or (6) appear to a reasonable person to be coercive. 

The majority of the committee also believe that service on the board of the foundation so closely linked to the for-profit rehabilitation program would violate Canon 5A(1) in that such service would "cast reasonable doubt upon the judge's capacity to act impartially as a judge" when the judge, as a part of his judicial duties, routinely directs misdemeanants to the rehabilitation program.

A minority of the committee believe that, inasmuch as the entity on whose board the inquiring judge has been requested to serve is a non-profit entity, and is not the entity which engages in the business of providing the rehabilitation program, the inquiring judge's proposed service on the board of the non-profit entity is permissible. 

With respect to the program identified by the inquiring judge to which misdemeanants are directed, the committee opined in Opinion 2010-10 that "ordering such a course is ethically permissible, as long as referral to such a course is not limited only to certain organizations as this action would violate Canon 2B, which prohibits a judge from lending the prestige of office to advance the private interests of others."

REFERENCES

Florida Code of Judicial Conduct: Canons 2B, 5C(3), 5C(3)(a).

Fla. JEAC Ops.: 2010-10, 04-26.

_____________

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, Esquire, Judge Lisa Davidson, Judge Kerry I. Evander, Judge Jonathan D. Gerber, Patricia Lowry, Esquire, Judge T. Michael Jones, Judge Jose′ Rodriguez, Judge C. McFerrin Smith, III, Judge Richard R. Townsend, and 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)