FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2013-06
Date of Issue: February 21, 2013

ISSUE

May a judge become a board member of a not-for-profit organization which will be dedicated to providing financial assistance to anonymous needy children and families who are referred to the organization by a local law enforcement agency which will have one of its officers serve as a board member.

ANSWER: Yes.

FACTS

The inquiring judge, who serves in the juvenile division, has been invited to become a member of a board of directors of a not-for-profit organization which will be formed to provide financial assistance to needy children and families.  The children and families will be referred to the not-for-profit organization by a local law enforcement agency.  An officer from that law enforcement agency also will serve on the board.

The board will not know the identities of the children and families who will be referred to the not-for-profit organization for financial assistance.  The board will be provided with only a description of the proposed recipient, as well as the circumstances justifying the need for financial assistance.  The not-for-profit organization also will be involved in fund-raising activities in which the inquiring judge would not be involved.

DISCUSSION

The conduct proposed in the inquiry constitutes extrajudicial activities which are governed by Canon 5 of the Code of Judicial Conduct.  Canon 5B encourages judges to participate in extrajudicial activities concerning non-legal subjects.  However, Canon 5A provides that a judge must conduct all extrajudicial activities so that they do not cast reasonable doubt on the judge’s capacity to act impartially, undermine the judge’s independence or integrity, demean the judicial office or interfere with the proper performance of judicial duties.

This Committee has rendered a number of opinions addressing the type of organizations and activities in which judges may participate under Canon 5C(3).  This Canon allows a judge to serve as an officer, director, trustee, or non-legal advisor of a not-for-profit charitable or civic organization, subject to certain limitations and requirements of the Code of Judicial Conduct.  Specifically, a judge shall not serve as an officer, director, trustee or non-legal advisor if it is likely that the organization will be engaged in proceedings that would ordinarily come before the judge, or will be engaged frequently in adversary proceedings in the court of which the judge is a member.  Additionally, we have cautioned judges against membership in not-for-profit organizations which may convey an appearance of bias in favor of one class of litigants over another.

In Fla. JEAC Op. 04-16, this Committee opined that a judge could serve as a trustee of a non-profit philanthropic trust, where the judge would not be asked to provide legal advice or services and the trust would not be involved in significant litigation.  Similarly, in Fla. JEAC Op. 05-09, we opined that a judge could serve on the board of a local community children’s alliance, whose goal was to benefit children and families generally and which would occasionally apply for grants and conduct fund-raising activities.  We further opined that such service was permissible where the organization would be chaired by elected officials, including the sheriff.  We noted that “[t] here is no provision in the Code restricting service to a civic or charitable organization because it has a member, or even a chair-person, who is an elected official, such as a sheriff.”

Likewise here, the Code of Judicial Conduct does not prohibit the inquiring judge’s participation in the proposed organization solely because a law enforcement officer would also be a board member.  However, this Committee cautions the inquiring judge that if a fellow board member appears as a witness before the judge, Canon 3E(1) provides that “a judge shall disqualify himself or herself in a proceeding in which the judge’s impartially might reasonably be questioned.”  Canon 3E(1)’s Commentary also cautions judges to disclose, on the record, information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification.

The inquiring judge has explained that the needy children and families will be referred by one particular local law enforcement agency.  However, the board of directors will decide whether to award the funds, independent of that law enforcement agency.  This Committee does not consider the judge’s participation in this board as being so closely connected to that law enforcement agency that the public would feel the two entities are alter egos of one another, as found in Fla. JEAC Op. 10-38.  There, a majority of this Committee opined that the inquiring judge should not sit on a board of a not-for-profit charitable foundation where the foundation’s principal source of funds would be the owner of a for-profit rehabilitation program to which defendants were routinely directed by the inquiring judge.  Because of the close connection between the for-profit rehabilitation program and the not-for-profit foundation, the majority felt the public would view the inquiring judge’s involvement in the not-for-profit foundation as involvement with the for-profit rehabilitation program.  Therefore, the majority believed that such service would “cast reasonable doubt upon the judge’s capacity to act impartially as a judge,” as prohibited by Canon 5A(1).

Additionally, in Fla. JEAC Op. 97-24, this Committee opined that a judge could not serve on an advisory board overseeing a federal block grant program secured by a local law enforcement agency.  We observed that the advisory board would not only listen to presentations from the law enforcement agency and citizens regarding how the grant money should be spent, but also would assist and advise the law enforcement agency during the entire course of the grant.  We reasoned that service on such a board would place the judge in a position of advising the local law enforcement agency how it should spend its money and conduct its operations, thereby converting the judge into an advisor to the law enforcement agency.  Additionally, we reasoned that the judge’s service on this advisory committee would lead to many conflicts with the judge’s judicial duties, because the law enforcement agency would be engaged in proceedings which would ordinarily come before the judge or would be engaged frequently in adversary proceedings in the court of which the judge was a member.

Here, while the not-for-profit organization and its board are being referred needy children and families solely by one particular law enforcement agency, the governance and decisions of the organization and its board will be made independent of the law enforcement agency.  Therefore, the Code of Judicial Conduct does not prohibit the inquiring judge’s participation on the organization’s board.

While having found no prohibition to the inquiring judge’s participation on this board, this Committee cautions the inquiring judge to adhere to the admonition of Canon 5C(3)(a)’s Commentary.  That Commentary reminds judges that due to the changing nature of some organizations and their relationship to the law, a judge regularly must re-examine the activities of each organization with which the judge is affiliated to determine if it is proper for the judge to continue the affiliation.

 

REFERENCES

Fla. Code Jud. Conduct Canons 3E(1), 5A, 5B, 5C, Commentary to Canon 5C(3)(a).

Fla. JEAC Ops. 97-24, 04-16, 05-09, 10-38.

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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 the Committee Chair: Judge Jonathan D. Gerber, Chair, Judicial Ethics Advisory Committee, Fourth District Court of Appeal, 1525 Palm Beach Lakes Boulevard, West Palm Beach, Florida 33401.

Participating Members:
Judge Roberto Arias, Robert T. Benton, II, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Jack Espinosa, Jr., Judge Jonathan D. Gerber, Judge T. Michael Jones, Judge Barbara Lagoa,  Patricia E. Lowry, Esquire, Judge Michelle Morley, Judge Richard R. Townsend, Judge Dorothy L. Vaccaro.


Copies furnished to:
Inquiring judge (Name of the Inquiring Judge deleted)
Justice Charles T. Canady
Thomas D. Hall, Clerk of Supreme Court
All Committee Members
Executive Director of the J.Q.C.
Office of the State Courts Administrator