FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2014-20
Date of Issue: August 13, 2014

ISSUE

May a judge serve on a statutorily-created county development authority which determines whether to fund grant requests from industry seeking to start or relocate in the county and from local governments seeking to upgrade their infrastructure?

ANSWER: No, because such an authority is concerned with issues of fact or policy other than the improvement of the law, the legal system, the judicial branch, or the administration of justice.

FACTS

The inquiring judge asks whether the judge may serve on a county development authority for a county in which the judge formerly resided but still owns property. The judge now resides and sits as a judge in a county three to four counties away, depending on the driving route taken. The county development authority at issue is located within a different judicial circuit than the county in which the judge now resides and sits as a judge.

The county development authority at issue was created by the legislature several years ago by a special act. According to the Act, the Authority is a public corporation and its purpose is to perform such acts as shall be necessary for the sound planning and development of the county. The Act provides that the Authority’s membership shall be appointed by the Governor from among county residents; that the Authority’s membership shall serve without compensation but shall be reimbursed for travel expenses incurred in the performance of their duties; and that the county and its incorporated cities are authorized to enter into contracts with the Authority as a public corporation. The Act also provides that the Authority shall have the following powers, among others: to acquire, hold, and dispose of personal property; to enter into contracts with the county and its incorporated cities; to acquire, lease, and make contracts with respect to real property; to hire employees; to erect and acquire projects; to borrow money for any of its purposes; and to issue revenue-anticipated certificates to pay for the cost of any of its projects.

According to the inquiring judge, the Authority currently is funded almost totally from a percentage of taxes paid yearly to the State based on the amount of a natural resource removed from the county. The Authority also receives a very small amount of income from various businesses to which loans have been made or property has been sold. The Authority funnels its funds to local governments for the development of infrastructure to support incoming industry and by making grants and loans to industries seeking to expand into the county. The Authority’s overarching goal is to replace jobs which are lost when local industry closes.

According to the inquiring judge, the Authority’s decisions, almost exclusively, determine whether to fund grant requests from industry seeking to start or relocate in the county and from local governments seeking to upgrade their infrastructure. The Authority’s decisions are sometimes subject to controversy, but those controversies are based on economic and fiscal/business discretionary decisions, and not those involving moral turpitude or legal decisions.

According to the inquiring judge, the Authority’s members consist of local business people and landowners who have some experience and background in the types of endeavors in which the Authority is engaged, i.e., business, growth, industry economics, etc. The Authority’s members still receive no compensation. The judge’s service on the Authority may entail serving as its chair, in which event the judge would not vote unless there was a tie vote which needed to be broken. The Authority’s meetings are subject to the Government-in-the-Sunshine Act and, therefore, are noticed, agendaed, open to the public, and recorded. The Authority is operated day-to-day by a salaried executive director and has a general counsel who attends every meeting.

According to the inquiring judge, nothing the judge has been involved within the judge’s circuit has been related to anything which the Authority has been involved with in its operation. The inquiring judge also believes that the judge would lose no time performing judicial work due to being appointed to the Authority. The meetings of the Authority are only in the evenings on one evening a month during which the inquiring judge is not sitting. The inquiring judge’s docket is current and the inquiring judge recognizes that the paid judicial position should take priority at all times over the volunteer Authority position. The inquiring judge desires to serve on the Authority not for any personal gain or aggrandizement, but instead to help another county in which the judge does not reside or sit as a judge.

 

DISCUSSION

Code of Judicial Conduct Canon 5C(2) provides:

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. A judge may, however, represent a country, state or locality on ceremonial occasions or in connection with historical, educational or cultural activities.

(emphasis added). Further, Canon 5C(2)’s Commentary provides, in pertinent part:

Canon 5C(2) prohibits a judge from accepting any governmental position except one relating to the law, legal system or administration of justice as authorized by Canon 4D. The appropriateness of accepting extrajudicial assignments must be assessed in light of the demands on judicial resources created by crowded dockets and the need to protect the courts from involvement in extrajudicial matters that may prove to be controversial. Judges should not accept governmental appointments that are likely to interfere with the effectiveness and independence of the judiciary.

The Committee opines that the Authority, as described in its enabling Act and by the inquiring judge, is a governmental committee or commission or other governmental position that is concerned with issues of fact or policy other than the improvement of the law, the legal system, the judicial branch, or the administration of justice. The Committee also opines that the inquiring judge’s service on the Authority would go beyond representing the locality on ceremonial occasions or in connection with historical, educational, or cultural activities. Therefore, according to Canon 5C(2)’s plain language, the inquiring judge may not serve on the Authority. Put another way, because the Authority is not concerned with the improvement of the law, the legal system, the judicial branch, or the administration of justice, the inquiring judge may not serve on the Authority.

In rendering our opinion, we recognize that service on the Authority is a local leadership position which is unpaid, volunteer, and not compensated; that as the Authority’s chair, the inquiring judge would not vote unless there was a tie vote which needed to be broken; that the Authority is legislatively funded for the sole purpose of making grants and loans and is not a money-making, money-raising, or taxing authority; that there may be no crossover of policies or issues upon which the inquiring judge may be called upon to rule or vote because of the geographical distance between the two counties/circuits and the two positions; that any local controversy over the funding of any given project may involve economic and fiscal/business discretionary decisions, and not those involving moral turpitude or legal decisions; that the inquiring judge’s docket is current; and that the inquiring judge desires to serve on the Authority not for any personal gain or aggrandizement, but instead to help another county in which the judge does not reside or sit as a judge. However, all of these factors are irrelevant given Canon 5C(2)’s plain language 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.”

We also recognize that the inquiring judge’s service on the Authority, as described by the inquiring judge, would not appear to overstep Canon 5C(2)’s Commentary that “[t]he appropriateness of accepting extrajudicial assignments must be assessed in light of the demands on judicial resources created by crowded dockets and the need to protect the courts from involvement in extrajudicial matters that may prove to be controversial” and that “[j]udges should not accept governmental appointments that are likely to interfere with the effectiveness and independence of the judiciary.” However, those admonitions must be read in the context of the first sentence of Canon 5C(2)’s Commentary: “Canon 5C(2) prohibits a judge from accepting any governmental position except one relating to the law, legal system or administration of justice as authorized by Canon 4D.”

Our opinion today is consistent with our numerous prior opinions advising judges not to accept appointment to a governmental committee or commission or other governmental position that is concerned with funding issues which are unrelated to the improvement of the law, the legal system, the judicial branch, or the administration of justice. See Fla. JEAC Ops. 04-08 (a judge cannot serve as a board member of the Florida Workers’ Compensation Insurance Guaranty Association); 01-16 (a judge may not serve as an appointed member of a commission of a municipal government charged with fiscal oversight of government funds); 99-11 (a judge may not serve on a county fire board); 97-24 (a judge may not serve on an advisory board which would oversee a federal block grant secured by a local police department).

A quote from Fla. JEAC Op. 01-16 remains applicable here: “[T]he judge has described the commission in question as one which involves itself in the granting of government funds and overseeing their use. This is a clear responsibility of the executive branch . . . . Although a creative justification as tangentially relating to the justice system may be made, the committee believes that the judge’s participation would be a clear violation of Canon 5C(2) and advises the inquiring judge to decline the appointment being offered.”

 

REFERENCES

Fla. Code Jud. Conduct, Canon 5C(2), Commentary to Canon 5C(2).

Fla. JEAC Ops. 04-08, 01-16, 99-11, 97-24.

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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.    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 Petition of the Committee on Standards of Conduct Governing Judges, 698 So. 2d 834 (Fla. 1997).

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 whether the proposed conduct violates a provision of that Code.

For further information, contact Dean Bunch, Chair, Judicial Ethics Advisory Committee, 3600 Maclay Boulevard, South, suite202, Tallahassee, Florida 32312.

Participating Members:
Judge Roberto Arias, Judge Nina Ashenafi-Richardson, Judge 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 Michael Raiden, Judge Richard R. Townsend.


Copies furnished to:
Inquiring judge (Name of the Inquiring Judge deleted)
Justice Charles T. Canady, Justice Liaison
John A Tomasino, Clerk of Supreme Court
All Committee Members
Executive Director of the Judicial Qualifications Committee
Office of the State Courts Administrator