FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2013-15
Date of Issue: August 6, 2013

ISSUE

May a civil traffic infraction hearing officer simultaneously serve as a municipality’s local hearing officer pursuant to section 316.003(91), Florida Statutes (2013)?

ANSWER: The substantive legal issues are beyond the scope of the Committee’s responsibility. However, dual employment would not be prohibited by the Code of Judicial Conduct.

FACTS

Civil traffic infraction hearing officers (“CTHO”), among other things, adjudicate infractions concerning red light cameras.  Section 316.003, Florida Statutes (2013), was recently amended to include a definition for “local hearing officer”:

(91) LOCAL HEARING OFFICER.--The person, designated by a department, county, or municipality that elects to authorize traffic infraction enforcement officers to issue traffic citations under s. 316.0083(1)(a), who is authorized to conduct hearings related to a notice of violation issued pursuant to 316.0083. The charter county, noncharter county, or municipality may use its currently appointed code enforcement board or special magistrate to serve as the local hearing officer. The department may enter into an interlocal agreement to use the local hearing officer of a county or municipality.

The inquiring judge states that as a result of the amendment to section 316.003 to provide for a “local hearing officer,” municipal police departments and city governments within the inquiring judge’s circuit have inquired about engaging CTHOs to dually serve as local hearing officers to preside over their red light camera cases.  The inquiring judge is concerned that a CTHO hearing a matter involving a red light camera violation that occurred in the local municipality where he or she also serves as a local hearing officer may result in disqualification, present an actual or perceived conflict of interest, or an appearance of impropriety.

 

DISCUSSION

Pursuant to section 318.36, Florida Statutes (2012), the Code of Judicial Conduct has a limited application to CTHOs.  That section states, in part: “Hearing officers shall be subject to The Florida Bar Code of Professional Responsibility and not the Judicial Code of Ethics, except that they shall avoid practices or occupations that would constitute a conflict of interest or give the appearance of impropriety.”  § 318.36, Fla. Stat. (2012); see also Fla. JEAC Op. 12-38.  To that end, as stated in the Application section of the Code of Judicial Conduct, “a civil traffic infraction hearing officer . . . shall, while performing judicial functions, conform with Canons 1, 2A, and 3.”  See also Fla. JEAC Ops.10-17, 08-08.  The Application section of the Code of Judicial Conduct is in turn made applicable to CTHOs through Florida Rule of Traffic Court 6.630(j), which states that “[a]ll traffic hearing officers shall be subject to the Code of Judicial Conduct as provided in the application section of the code [of Judicial Conduct].”

To the extent the inquiring judge seeks an opinion whether dual employment as a CTHO pursuant to section 318.30, Florida Statutes (2012), and as a local hearing officer pursuant to section 316.003(91), conflicts with the statutory prohibition set forth in section 318.36, the inquiry concerns substantive legal issues beyond the scope of the Committee.  The Judicial Ethics Advisory Committee is expressly charged with rendering advisory opinions interpreting the application of the Code of Judicial Conduct, and only has authority to interpret the Code of Judicial Conduct.  The Committee does not provide advice on legal conflicts.  See Fla. JEAC op. 09-05 (“It is this Committee’s responsibility to interpret the Code of Judicial Conduct, and give guidance to judges under the Code.  It is not this Committee’s responsibility to give legal opinions under Florida Statutes . . . .”); Fla. JEAC Op. 94-17 (whether there was a legal or ethical conflict for an assistant statewide prosecutor to also act as a part-time traffic court magistrate constituted advice on legal conflicts beyond the scope of the Committee). 

The inquiring judge is concerned that a CTHO hearing matters involving a red light camera violation “occurring in the local municipality where that attorney also serves as a local hearing officer” may present a perceived conflict of interest and an appearance of impropriety.  Based on the inquiry, it appears that the inquiring judge is specifically concerned that the dual employment may be prohibited under Canon 2A, which provides that “[a] judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”  Even if the inquiring judge’s concern were within the Committee’s scope of responsibility, the dual employment would not be prohibited under Canons 1, 2A, and 3 of the Code of Judicial Conduct.  The individual attorney would be presiding as a hearing officer in both capacities, and therefore no lack of integrity or impartiality of the judiciary is apparent from the facts provided.  See Fla. JEAC 09-05 (stating that a senior judge sitting as traffic hearing officer does not conflict with the Code because both positions “serve compatible judicial functions”).

 

REFERENCES

§§ 316.003, 316.003(91), Fla. Stat. (2013); §§ 318.30, 318.36, Fla. Stat. (2012).

Fla. R. Traf. Ct. 6.630(j).

Fla. Code Jud. Conduct, Canons 1, 2A, and 3; Application.

Fla. JEAC Ops. 12-38, 10-17, 09-05, 08-08, 94-17.

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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 to 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 Judge Roberto Arias, Chair, Judicial Ethics Advisory Committee, Duval County Courthouse, 501 West Adams Street, Room 7180, Jacksonville, Florida 32202-4603.

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