FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2015-09
Date of Issue: July 13, 2015

ISSUE

Whether Canon 3C(4) is violated if a judge continues to employ the judge’s judicial assistant, after the assistant marries the judge’s child.

ANSWER: Yes, even if the proposed action may observe technical compliance with Florida’s nepotism statute.

 

FACTS

The inquiring judge’s judicial assistant has become engaged to the judge’s child and plans to get married in the near future. The judicial assistant has worked for the judge since January 2014, before the engagement. The inquiring judge asks whether the Code of Judicial Conduct would allow the continuing employment of the judicial assistant after the marriage.

 

DISCUSSION


(a) Introduction

The question posed by the inquiring judge calls on this Committee to examine not only the Code of Judicial Conduct, but also section 112.3135, Florida Statutes (2015). In light of Canon 2A of the Code of Judicial Conduct, which mandates that judges “shall respect and comply with the law,” the committee believes the judge’s inquiry should be answered although it does pose a mixed question of ethics and law, because under these particular facts those questions are inextricably linked.1

A majority of this Committee (ten members) concludes that retaining the judicial assistant post-marriage would constitute a violation of Florida’s nepotism statute and therefore the Code of Judicial Conduct as well.  Moreover, even if the minority (two members) is correct in its legal analysis (which is that the law would not be violated), the majority believes the proposed action would still run afoul of the Code of Judicial Conduct.

(b) Conclusions Regarding the Anti-Nepotism Statute and Its Companion Provisions in the Code of Judicial Conduct

Section 112.3135, (Florida’s anti-nepotism law), applies to the judicial branch. Section 112.3135(1)(d) defines “relative” to include “an individual who is related to the public official as . . . son-in-law [or] daughter-in-law.” Section 112.3135(2)(a) provides that “[a] public official [judge] may not appoint, employ, promote, or advance, or advocate for appointment, employment, promotion, or advancement, in or to a position in the agency in which the official is serving or over which the official exercises jurisdiction or control any individual who is a relative of the public official.”

The Code of Judicial Conduct dovetails with the statute as follows. Canon 3C(4) provides:

A judge shall not make unnecessary appointments. A judge shall exercise the power of appointment impartially and on the basis of merit. A judge shall avoid nepotism and favoritism. A judge shall not approve compensation of appointees beyond the fair value of services rendered.

The Commentary to Canon 3C(4) offers further explanation:

Appointees of a judge include assigned counsel, officials such as referees, commissioners, special magistrates, receivers, mediators, arbitrators, and guardians and personnel such as clerks, secretaries, and bailiffs. Consent by the parties to an appointment or an award of compensation does not relieve the judge of the obligation prescribed by Section 3C(4).See also Fla. Stat. § 112.3135 (1991).

(emphasis added).2

Because the statute utilizes a two-prong test to determine the occurrence of nepotism, it is not an automatic violation if an official and a relative are employed by the same agency. While the spouse of a judge’s child may qualify as a relative under the law, the statute’s second component - which forbids employment, promotion, and other actions inuring to the relative/employee’s benefit - may not be offended if all decisions regarding those actions are left to someone other than the judge. In Florida Judicial Ethics Advisory Committee Opinion 99-10, the Committee considered the issue of whether Canon 2 or Canon 3C(4) would be violated if a judge’s spouse were hired or appointed as a court program specialist in the same division as the judge, when the judge took no part in voting on the individual to fill the position. In Florida Judicial Ethics Advisory Committee Opinion 02-02, the Committee dealt with the issue of whether the Code would be violated if the spouse of the Administrative Judge of the Family Division were to be employed by the Court Administrator’s Office as a case manager in the Family Law Division. The Committee found no potential violation of the Code in either of these two opinions.

If “promotion” of a relative/employee were the only focus of the nepotism statute, it is possible that a different result might have been reached by this Committee. As pointed out by the minority, the Florida Supreme Court has established the Trial Court Budget Commission (TCBC) as the entity responsible for “developing and overseeing the administration of trial court budgets.” Fla. R. Jud. Admin. 2.230(a). The TCBC in turn has established a Budget Management Committee charged with recommending policies for managing operating budgets within the trial courts and monitors those budgets. Thus, the judge may have no ability to promote or increase the assistant’s salary.

This does not completely assuage the majority’s concerns. Although the salaries of judicial system employees may be fixed by the legislature, some of those employees (unlike judges themselves) may occupy positions with salary ranges with the possibility of raisesbased on length of service, merit, and other considerations. It is also not unthinkable that a circuit’s Chief Judge may have leftover funds at the end of the fiscal year with considerable discretion as to how to spend them, such as one-time bonuses for certain valued employees. In either instance if the favored employee were to include a relative of one of the circuit’s judges, it is difficult to avoid speculation that that judge, as a member of the “Collegial body” spoken of in section 112.3135(1)(b), had a voice in the “advancement.” Even if the Chief Judge were deaf to such questionable pleas, the situation could pose a threat to the court’s collegiality.

In any event, the facts of the present case are not limited solely to the employee’s future advancement. Instead, the focus should be on the word “employ” as used in the statute. There should be little question that a judicial assistant is selected by the judge and not assigned by some higher authority such as a Chief Judge or court administrator. The judicial assistant thereafter serves at the judge’s pleasure.3 It should be emphasized that in the present case the inquiring judge did not actuallyhire a relative. Instead, the judge proposes to retain the employee once the familial relationship status is conferred by the upcoming marriage. The anti-nepotism statute does not actually mention retention - that is, it does not address the situation where an existing employee’s non-familial status suddenly changes. The minority concludes that this is a distinction with a difference. The majority cannot agree and would interpret the term “employ” as denoting, at least in this case, a continuing process.

The minority position is not without precedent. Attorney General Opinion 77-36, which the inquiring judge has also considered, dealt with a county property appraiser subject to the prohibitions of section 116.111, Florida Statutes (the predecessor of section 112.3135).4 That official inquired whether, if he married an employee of his office, that employee could continue to work in her same position. The Attorney General opined that it would not be a violation of the anti-nepotism law as it did “not require termination of a validly hired employee who becomes the spouse of the appointing or employing officer. The employee in such a situation may continue working in his or her same position, but may not be promoted or advanced thereafter by the related public official or upon the official recommendation of the related public official.” Op. Att’y Gen. Fla. 77-36, at *2 (1977).

Similarly, in Opinion 70-18 the Attorney General held that “a change in the marital status of the appointing officer, or of a relative of such officer, could effect a change in the relationship of an existing employee to the official. In these circumstances, since the original appointmentwas not based on a blood or marital relationship, the reason for the antinepotism rule ceases insofar as the employment of such employeeis concerned and should not be applied to require the discharge of such employee.” Op. Att’y Gen. Fla. 70-18, at 214 (1970). The opinion went on to hold that the statute would still prohibit the promotion or advancement of the employee once an employer-employee relationship comes into existence subsequent to a valid appointment or employment. Since, in the present case the judicial assistant was employed at a time where the prohibited relationship did not exist, the minority argues that the assistant’s change in circumstance, which now will transform the assistant into a “relative,” should not require the assistant’s discharge. The majority, however, cannot agree with the reasoning behind these opinions.5 Although not the basis for the majority’s determination, it may well be that the Attorney General viewed those parties as career civil service employees with more restrictions on termination than an at-will employee.

(c) Additional Considerations Based On the Code of Judicial Conduct

In addition to its conclusion that Florida law prohibits retention of the judicial assistant, the majority concludes that Canon 3C(4) was not drafted solely as a reminder to judges that they too fall under Florida’s anti-nepotism laws. Instead, the majority would go farther and hold that the Code should be interpreted as requiring more than just technical compliance with a statute that may be understood by persons “inside the system” but viewed with skepticism by those on the outside. At the root of the majority’s reservations is the well-established admonition that judges should avoid even the appearance of impropriety.

Even if the Attorney General opinions are legally correct, and the relative-employee simply is never considered for promotion or other advancement, the minority’s argument would be more persuasive if the relative-to-be were in a position other than judicial assistant. Florida Judicial Ethics Advisory Committee Opinion 99-10 dealt with a spouse who may have occasionally worked with but did not answer to the judge; other possibilities might include staff attorneys or case managers assigned to divisions in which the judge-relative does not sit. The relationship between judge and judicial assistant is fundamentally different. Not only does the judge-assistant relationship imply nearly constant personal contact, it also imposes upon the judge close and permanent supervisory responsibilities. See, e.g., Fla. Code Jud. Conduct,Canon 3C(2). Not only does the Code of Judicial Conduct apply to judges, but it might be said that it encompasses the entire judicial office. The added pressures of family ties might tempt even the most conscientious judge to overlook or downplay situations that could erode public confidence in the integrity of the judicial system.

The majority’s conclusion stems from the very nature of familial relationships and the unfortunate fact that they do not always remain intact. The legal definition of “relative” is broad and some relatives are more distant than others, but the statute itself attempts no such gradation. Would the minority reach the same result if the judge, rather than a relative, were the one marrying the judicial assistant? Even in the present case, suppose marital difficulties were to arise in the future, to the point litigation ensued. Even though, as would likely happen, the case could be transferred to a different circuit, the perception could arise that the judge has taken the side of the blood relation and has retaliated against the employee as a result. Such actions are the direct opposite of advancement or promotion, a contingency the anti-nepotism statute does not address, but one that presents ethical ramifications no less serious in nature. Personality conflicts, and the troubles that often follow them, will always be with us, but in this instance are easily avoidable by accepting that the Code of Judicial Conduct may impose broader restrictions on conduct than has the Florida legislature.

Accordingly a majority of this Committee concludes that the inquiring judge should not retain the judicial assistant after the marriage.

REFERENCES

§§ 112.3135, 112.3135(1)(b), 112.3135(1)(d), 112.3135(2)(a), Fla. Stat. (2015); 116.111, Fla. Stat. (former).

State v. Family Bank of Hallandale, 623 So. 2d 474 (Fla. 1993); Browning v. Fla. Prosecuting Attorneys Ass’n, 56 So. 3d 873 (Fla. 1st DCA 2011).

Fla. Code Jud. Conduct, Definitions Section, Canons 2A, 3C(2), 3C(4), 3E(1)(d), and Commentary to Canon 3C(4).

Fla. JEAC Ops. 12-32, 07-16, 02-02, 99-10, and 98-4.

Fla. R. Jud. Admin. 2.230(a).

Ch. 69-341, Laws of Florida.

Fla. Att’y Gen. Ops. 77-36, and 70-18.

Employee Manual, Office of the State Courts Administrator

_____________


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 Judge Barbara Lagoa, Chair, Judicial Ethics Advisory Committee, Third District Court of Appeal, 2001 S.W. 117th Avenue, Miami, FL 33175.

Participating Members:
Judge Roberto Arias, Judge Nina Ashenafi-Richardson, Judge Robert T. Benton, II, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Miguel de la O, Judge Jack Espinosa, Jr., Judge Barbara Lagoa, Judge Spencer D. Levine, 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

 

1. The Committee’s purview limits its opinions to the applicability of the Code of Judicial Conduct and does not encourage it to interpret statutes. Here, however, the Canons’ commentaries refer to the anti-nepotism statute in considering the ambit of Canon 3C. Therefore, as previous Committees have done, we find it appropriate to address section 112.3135.

2. The definition of “Member of the judge’s family” found in the Definitions Section to the Code of Judicial Conduct does not expressly include in-laws. At most it speaks of “other relative[s] or person[s] with whom the judge maintains a close familial relationship.” See also Definition of “third degree of relationship,” a term employed in Canon 3E(1)(d). However, at least two opinions of this Committee, even though it was determined that the inquiring judge was not required to enter a recusal based on the unusual facts presented, make no distinction between a person related within the third degree and a spouse of such person. See Fla. JEAC Ops. 07-16 (son-in-law) and 12-32 (step-niece). Accordingly a majority of the Committee does not believe the Code exempts the inquiring judge’s judicial assistant.
In Florida Judicial Ethics Advisory Committee Opinion 98-4, the Committee opined that the judge could hire a niece-in-law as a judicial assistant, but this was because she - unlike the assistant in the present case - did not qualify as a “relative” under section 112.3135.

3. This conclusion is consistent with the Employee Manual maintained by the Office of the State Courts Administrator: “All employees of the state courts system are at-will employees. Employment at will simply means the traditional relationship between employer and employee; in other words, the relationship is for no fixed period of time and may be terminated at any time by either party unilaterally, with or without cause.” The manual goes on to provide that “[j]udicial assistants . . . serve as personal staff to their individual judicial officers and are subject to their individual officer’s plenary authority over the employment relationship -- including all hiring, supervisory, and firing decisions.” Manual, at 9.

4. The former section 116.111 was created by chapter 69-341, Laws of Florida. The definition of “relative” in the earlier statute also included daughters- and sons-in-law, and the nepotism prohibition similarly extended to both employment and advancement/promotion. There has been no legislative change since 1969 that would affect the outcome of this case.

5. It is well established that opinions by the Attorney General (much like our own) cannot be relied upon as legal precedent, as opposed to persuasive authority. See, e.g., State v. Family Bank of Hallandale, 623 So. 2d 474 (Fla. 1993); Browning v. Fla. Prosecuting Attorneys Ass’n, 56 So. 3d 873 (Fla. 1st DCA 2011).