FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2015-11
Date of Issue: October 2, 2015

ISSUE

May a judge serve on the board of directors of a non-profit community organization for the purpose of assisting the organization to implement a program which assists persons previously convicted of crimes to find a job, mental health counseling, and a safe place to live?

ANSWER: Yes, if the judge does not: (i) assist the organization in fund raising; (ii) participate in the administration of public funds; nor (iii) contact potential employers to persuade them to employ ex-offenders.

 

FACTS

The inquiring judge has been asked to accept an appointment to the board of a church-sponsored non-profit organization that plans to establish and manage a program to assist ex-offenders in finding a job, and otherwise integrating into society. The inquiring judge states that the role would not include involvement in fundraising activities. The role of the inquiring judge would be limited to attending quarterly board meetings, providing occasional advice, and interfacing with local community contacts regarding training and hiring non-violent felons who have already fulfilled their sentences.

As originally planned, the program in which the judge would participate was to have been funded by a grant from the State of Florida. Although the legislature appropriated the funds for this purpose, the Governor vetoed the appropriation. The program is now anticipated to be funded through private sources.1

 

DISCUSSION

The issue presented involves extrajudicial activities which are governed by Canon 5 of the Code of Judicial Conduct. Canon 5 provides generally that judges must regulate extrajudicial activities to minimize the risk of conflict with their judicial duties.

Canon 5C(3) allows a judge to serve as a director of a non-profit organization, if the service does not violate any other provision of the Code. Although the inquiring judge has provided a description of the activities which are contemplated regarding the program for ex-offenders, it is not possible for the Committee to anticipate, nor for the inquiring judge to describe, every possible type of involvement which may be involved.

That said, there is nothing in the inquiring judge's description of the contemplated activities which would, per se, prohibit the judge's service as a director of the organization, and involvement in the program for ex-offenders.

The Committee cautions the inquiring judge to be vigilant concerning possible violations of the Code as the contemplated service goes forward. As one example, direct solicitation of potential employers to join the program and hire ex-offenders would place the inquiring judge at risk of violating other provisions of Canon 5.

For example, Canon 5A(6), provides that "[a] judge shall conduct all of the judge's extra-judicial activities so that they do not: (6)  appear to a reasonable person to be coercive." Similarly, Canon 5C(3)(b)(iii), provides that a judge, as a part of service on a board of an organization, may not use "the prestige of the judicial office for fund-raising or membership solicitation."

If the inquiring judge directly and personally contacted potential employers to recruit them into the program, this solicitation, coming from a judge to a member of the community which the judge serves, could be perceived by the recipient of the solicitation to be coercive.

Therefore, the Committee believes that the inquiring judge should avoid direct solicitation of potential employers to initially become involved in the program, but instead should interface with employers who have previously agreed to join the program.

 

REFERENCES

Fla. Code Jud. Conduct, Canons 5A & 5C.

Fla. JEAC Ops. 12-16, 07-03, 01-16.

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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 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, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Jack Espinosa, Jr., Judge Spencer Levine, Judge Miguel de la O, Judge Barbara Lagoa, Patricia E. Lowry, Esquire, and Judge Michael Raiden.


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. If the program had been funded by the state, the judge could not serve because the organization would, in effect, be performing an executive branch function, through its administration of state funds. Fla. JEAC Ops. 12-16, 07-03, 01-16.