FLORIDA SUPREME COURT
Judicial Ethics Advisory Committee
Opinion Number: 2012-16
Date of Issue: June 11, 2012
Whether a judge may accept a position on the board of directors of a private not-for-profit corporation to be organized to administer “52 million DCF dollars” by contracting with one or more third parties as part of “the privatization of the DCF funds”?
The inquiring judge has been asked to serve on the board of directors of a “managing entity,” a non-profit corporation to be organized to bid for the right to administer state moneys now or recently administered by the Florida Department of Children and Family Services. Only if the bid succeeds would the managing entity “be active.”
If the bid does succeed, the managing entity “would be in essence a governing entity that would contract with a [named] vendor.”
The inquiring judge was approached because of the judge’s “extensive experience with behavioral health needs” in the judge’s community. One of the organizers also wrote that “DCF strongly wishes to have a Board of Directors made up of viable community leaders,” and that a “judge is a very strong addition to the board demographics.”
Canon 5 permits a judge to serve as an officer, director, trustee or non-legal advisor of or to an educational, religious, charitable, fraternal, sororal or other civic organization, although the Code restricts a judge from undertaking such service where it is likely that the organization will be involved in proceedings that would ordinarily come before the judge or will be engaged frequently in adversary proceedings in the court on which the judge sits. See Fla. Code Jud. Conduct, Canon 5C(3)(a)(i) & (ii).
The possibility that employees of the named vendor or one of its subcontractors would be involved in proceedings regularly coming before the inquiring judge cannot be dismissed out of hand, but does not form the basis for our decision. See generally Fla. JEAC Op. 97-11 (“A family division judge may serve on this board of directors. It would be up to the judge, however, to closely monitor the activities of the program in order to ensure that the program and its employees or volunteers are not becoming involved frequently in litigation, either as parties, or as witnesses in ongoing custody or visitation disputes. Should such a development occur, future service on the board would be inadvisable.”); Fla. JEAC Op. 77-13 (advising against board membership; collecting cases).
Of particular concern in the present case is the nature of the managing entity. Viewed in one way, the managing entity is a stand in for an agency of the executive branch. After all, the letter asking the inquiring judge to serve on the managing entity’s board said the managing entity “would be in essence a governing entity.” Canon 5C(2) provides that “[a] judge shall not accept appointment to a governmental committee or commission or other governmental position that is concerned with issues of fact or policy on matters other than the improvement of the law, the legal system, the judicial branch, or the administration of justice.”
“Previous Committee opinions have found it proper for a judge to serve on some advisory councils. The committee has thought it appropriate for judges to serve on an alcohol, drug abuse, and mental health district planning council, see Fla. JEAC Op. 88-24 and 88-30, on the board of directors of a DUI countermeasure school, see Fla. JEAC Op. 93-23, in an advisory capacity on the regional juvenile detention center's community advisory board, see Fla. JEAC Op. 94-04, as a member of a district juvenile justice board, see Fla. JEAC Op. 94-31, and as a member of the Victim's Assistance Advisory Council. See Fla. JEAC Op. 98-26.”
“By contrast, in Fla. JEAC Op. 01-16, the committee concluded that a judge could not serve as an appointed member of a commission of a municipal government charged with fiscal oversight of government funds. In that opinion, we noted that the commission involved itself in the ‘granting of government funds and overseeing their use.’ We stated that such a function is a ‘clear responsibility of the executive branch, no different than the operations of the police and fire departments.’ Id.; Fla. JEAC Op. 07-03. If the managing entity is viewed as quasi-governmental, the inquiring judge could also be said to be involved in the granting of governmental funds and overseeing their use.
If the managing entity is viewed as a conduit to or agent for the named vendor, other concerns come to the fore. Canon 2(B) states: “A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others.” Whether or not the named vendor is itself a corporation not for profit, a judge should take care not to lend the prestige of judicial office to advance its interests.
We are not concerned here with an organization devoted to the improvement of the law, the legal system, the judicial branch, or the administration of justice. In JEAC Op. 99-22, we considered the propriety of a judge’s “send[ing] a letter to local businesses, explaining the goal of [a nonprofit] group’s character awareness and ethics education program. The letter states that businesses in the area would benefit from learning the ‘Nine Pillars of Character’ (Trustworthiness, Responsibility, Caring, Respect, Fairness, Citizenship, Commitment, Courage and Faith). The letter states that the organization has assembled a group of business executives and community leaders, who will come to the business at no cost and present the program.” We advised that “the inquiring judge should not identify himself as a judge when sending out the . . . proposed letter.” Fla. JEAC Op. 99-22.
In the present case the organizers of the managing entity are explicit about their desire to use the prestige of judicial office to advance the interests both of the managing entity and of the named vendor. After explaining that the managing entity “will compete for the contract” that the Department of Children and Family Services was expected to let, the letter soliciting the inquiring judge’s participation stated: “DCF strongly wishes to have a Board of Directors made up of viable community leaders. A judge is a very strong addition to the board demographics.”
In these circumstances, the JEAC advises the inquiring judge against agreeing to serve on the managing entity’s board of directors.
Fla. Code Jud. Conduct: 2B, 5C(2) & 5C(3)(a)(i)&(ii).
Fla. JEAC Ops.: 07-03, 01-06, 99-22, 98-26, 97-11, 94-31, 94-04, 93-23, 88-30, 88-24 &77-13.
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 which governs any proceeding over which the inquiring judge may preside. 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 33401-6161.
Judge Roberto Arias, Judge Robert T. Benton, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Jonathan D. Gerber, Judge T. Michael Jones, Judge Barbara Lagoa, Patricia E. Lowry, Esquire, Judge Jose′ Rodriguez, Judge C. McFerrin Smith, III, Judge Richard R. Townsend, and Judge Dorothy Vaccaro.
Copies furnished to:
Inquiring judge (Name of the Inquiring Judge deleted)
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