FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2014-23
Date of Issue: October 2, 2014

ISSUE

May a judge make a public appeal for potential foster parents in a circuit or county where the vetting and training of foster parents is performed by a nonprofit agency that is reimbursed for its administrative costs?

ANSWER: Yes, so long as the judge does not do so in a manner reasonably perceivable as coercive or casting doubt on the judge’s ability to handle such cases impartially, the judge holds no personal stake in the agency in question, and the judge does not attempt to influence the distribution of training assignments.

FACTS

The present inquiry comes from a judge who desires to make a public appeal for potential foster parents. In the judge’s circuit foster parents are vetted and trained by nonprofit agencies that are reimbursed for their administrative costs. The judge is concerned that this fact might place the judge in a position of lending the prestige of judicial office to a private endeavor. See generally Code of Judicial Conduct, Canon 2B.

DISCUSSION

This Committee has previously considered the more general question whether a judge may make appeals to the general public to serve as foster parents. The inquiring judge in Fla. JEAC Op. 2013-10 was handling dependency cases and became concerned over a significant lack of foster parents for the children in those cases. The judge desired to record public service announcements encouraging citizens to become involved as volunteers. This Committee approved of the judge’s proposal so long as the judge did not act in such a manner as to appear coercive or to cast reasonable doubt on the judge’s ability to act impartially in such cases. Canon 4 of the Code of Judicial Conduct encourages judges to “engage in activities to improve the law, the legal system, and the administrative justice,” subject to restrictions contained therein. The Committee concluded that the activities contemplated by that judge fell within the boundaries of Canon 4B.

Our first observation is that there appears to be no personal or business connection between the inquiring judge and the agencies who would train potential foster parents. This fact distinguishes the present situation from In re DeFoor, 494 So. 2d 1121 (Fla. 1980), in which the judge had a personal stake in a company that manufactured ankle monitors of the sort often imposed upon probationers or pretrial releasees. Because of this the judge stood to benefit financially whenever a defendant was required to wear one of the monitors.

By contrast, it is not unreasonable to expect that a foster parent training program would succeed without incurring some expense, regardless whether the service was provided in-house by the court system or outsourced to independent parties. This fact alone should not deter the judge’s independent call for volunteers to perform a valuable court-related service. That is at most an indirect benefit to an agency or agencies that would have been involved in the training whether the judge spoke out or not.

The judge’s letter of inquiry does not specify exactly how many nonprofit agencies are involved in foster parent training nor how the distribution of individual foster parents between the agencies is determined. We therefore caution that the judge should not express favoritism for one agency over another or otherwise attempt to influence the method of assigning the cases.

Our position on this is consistent with numerous prior opinions in which well-intentioned judges considered praising certain innovations or programs whose purpose may have been commendable and useful to the legal system, but whose utilization conferred a profit or other benefit upon a private party. See, e.g., Fla. JEAC Ops. 1982-01 (brochure for a dispute conciliation service), 1997-16 and 2006-14 (literacy programs run by local newspaper and a for-profit educational company), and 1997-29 (commending a particular brand of videoconferencing equipment). Notably, some of these opinions did not involve overt endorsements by the inquiring judges, but only the utilization of their names, photos, or remarks. Nor should the judge personally solicit contributions for the agencies themselves. See Canon 5C.

Finally, the judge should take care to avoid any use of agencies that may fairly be described as ideological or advocating one side over another in matters likely to come before the courts. See, e.g., Fla. JEAC Op. 2008-18 (regarding Mothers Against Drunk Drivers).

 

REFERENCES

In re DeFoor, 494 So. 2d 1121 (Fla. 1980)

Code of Judicial Conduct, Canons 2B, 4B, and 5C

Fla. JEAC Ops. 1982-03, 1997-16, 1997-29, 2006-14, 2008-18, and 2013-10

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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, 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