FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2011-14
Date of Issue: September 20, 2011

ISSUE

May a judge serve as a member of the wait staff at a charitable organization’s fundraiser luncheon when the wait staff will be comprised of only elected officials and contributions will be solicited and collected at the event by the non-judicial wait staff?

ANSWER: No.

FACTS

The inquiring judge has been invited to attend a fundraiser for a respected organization that provides emergency shelter, food, clothing, case management and spiritual guidance to the disadvantaged, needy and homeless and to abused women and children. The inquiring judge would be one of several elected officials who would be the wait staff at the organization’s fundraiser luncheon. The wait staff will be comprised of only elected officials, and they will wear special aprons showing support for the organization. None of the wait staff will be asked to collect or solicit money. Members of the wait staff are not featured individually at the program. Members of the wait staff, referred to as “servants,” are not named; however, they are asked to gather as a group for a general thank you at the end of the program. Their names are not used in any pre-event advertisements. The inquiring judge will not be asked to solicit money in any way, from any person at the event.  Other non-judicial “servants” will collect money at the end of the event, and one non-judicial “servant” will be making a personal appeal for contributions at the end of the luncheon.

The inquiring judge has been involved with this event for the past seven years.

DISCUSSION

Canon 5 controls this inquiry. That canon regulates a judge’s extrajudicial activities with nonprofit educational, religious, charitable, fraternal, sororal, or civic organizations.

Both Canon 4 and 5 encourage judges to become involved in their community, within limits described in the Code. The Commentary to Canon 5 encourages a judge to participate in extrajudicial activities, and to not become isolated from the community in which the judge lives.

The limitations on a judge’s extrajudicial activities are specific. Canon 5A provides that a judge shall conduct all extrajudicial 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.

Expanding on Canon 5A, Canon 5C(3)(b)(i) provides that a judge may not “personally or directly” participate in the solicitation of funds for a nonprofit educational, religious, charitable, fraternal, sororal, or civic organization. The commentary to this subsection further clarifies “personally or directly” by making it clear that mere attendance at a fundraising event does not constitute a violation of this provision, and that it is permissible to pass a collection plate at a place of worship, to serve as an usher, or food server or preparer (as proposed here), or to perform similar subsidiary and unadvertised functions at such fundraising events.

The JEAC has repeatedly concluded that judges may not personally or directly participate in charitable fundraising. See 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. 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).

Canon 5C(3) 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).  However, in 2008, the Supreme Court of Florida amended several provisions of the Code, including the Commentary to Canon 5C(3). In Re: Amendments to the Code of Judicial Conduct-Limitations on Judges’ Participation in Fundraising Activities, 983 So. 2d 550 (Fla. 2008). One of the 2008 amendments creates a very specific exception to prior fundraising restrictions. The Court amended Canon 5C(3)(b) to delete the reference to “other fund-raising activities.”

In JEAC Op. 10-15 this Committee concluded that, with the 2008 amendments to the Canon 5 Commentary, the inquiring judge could properly participate in a charity’s fundraising walk-a-thon as a show of support for the purposes of the organization, as long as the judge engaged in no direct pledge solicitation or direct fund-raising and complied with other restrictions in the Code.

By contrast, 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 5. In this opinion the committee interpreted Canon 5 as it existed before “other fundraising activities” was deleted by the 2008 amendments to the Commentary.

The facts presented by the inquiring judge here do not fall in the commentary’s permitted category of “food server.” By using only elected officials as its wait staff, or “servants,” the charitable organization has made the judge a featured participant, whose presence is requested to enhance the collection of contributions. Elected officials who are not judges will be collecting money at the end of the event. A personal appeal for funds will be made at the end of the event by a non-judicial “servant.” The judge is then thrust into the business of fundraising, whether the judge intends this or not. The inquiring judge should not participate as a member of the wait staff for this fund-raising event.

One dissenting member of the committee views the majority opinion as a refusal to accept and implement the policy changes adopted by the Supreme Court with the 2008 amendments to the Code and Commentary; the dissenting member states that being a food server at a charity’s fund-raising event is specifically mentioned with conditional approval in the present commentary, and the dissenting member believes this proposed food serving activity satisfies every condition in the Code and Commentary. This dissenting member sees the majority opinion as a continuation of pre-2008 restrictive rules that caused judges to become isolated from the community in which they live.

REFERENCES

In Re: Amendments to the Code of Judicial Conduct-Limitations on Judges’ Participation in Fundraising Activities, 983 So. 2d 550 (Fla. 2008).

Fla. Code Jud. Conduct, Canons 4, 5, 5B, 5C and 5C(3)(b).

Fla. JEAC Ops. 88-05, 90-12, 90-20, 98-32, 99-15, 00-31, 01-09, 03-16, 08-17, 08-22, 09-07, and 10-15.

_____________

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 Committee expresses no view on whether any proposed conduct of an inquiring judge is consistent with substantive law. The 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: Patricia E. Lowry, Esquire, Chair, Judicial Ethics Advisory Committee, Squire, Sanders & Dempsey (US) LLP, 777 South Flagler Drive, Suite 1900 West, West Palm Beach, Florida 33401.

Participating Members:
Judge Roberto Arias, Judge Robert T. Benton, II, Dean Bunch, Esquire, Judge Jonathan Gerber, Judge T. Michael Jones, Patricia E. Lowry, Esquire, Judge Jose Rodriguez, Judge McFerrin Smith, III,  Judge Richard R. Townsend, and Judge Dorothy L. 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)