FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2016-01
Date of Issue: January 4, 2016

ISSUE

May a judge serve on the board of directors of a non-profit organization which owns and operates a charter school, and works in the community to combat illiteracy?

ANSWER: No.

FACTS

The inquiring judge asks whether it is permissible to serve on the board of directors of a charter school. Recognizing Florida Judicial Ethics Advisory Committee Opinion 11-05, which opined that a judge could not sit on the board of a public educational institution, the inquiring judge notes that the entity which owns the charter school also functions as a charitable institution which raises and distributes funds to combat illiteracy in the community. The inquiring judge asks whether it would be permissible to serve on the board of the entity "as it pertains to the functions that are solely related to combating illiteracy in the community."

"Charter schools shall be part of the state’s program of public education. All charter schools in Florida are public schools." 1002.33(1), Fla. Stat. (2015). The Commentary to the Florida Code of Judicial Conduct, Canon 5C(2) explains: "service on the board of a public educational institution, unless it were a law school, would be prohibited under Canon 5C(2), but service on the board of a public law school or any private educational institution would generally be permitted under Canon 5C(3).”

This position has been affirmed and applied numerous times to various public entities. It was cited most recently in Florida Judicial Ethics Advisory Committee Opinion 15-11, which approved a judge's participation in a non-profit's board, noting however, that the participation would not have been permitted if the organization was receiving public funds.

With regard to the inquiry as to whether the judge could serve on the board as it pertains to the functions which are solely related to combating illiteracy in the community, and thus not related to the operation of the charter school, the Committee concludes that service on a board of directors cannot be divided in the way the inquiring judge describes. If the judge is on the board of directors of the entity which owns and operates the charter school, the judge's responsibility and authority on that board remains, whether the judge elects to exercise it or not. Therefore, such service is not permissible.

Of course, the inquiring judge could assist as a volunteer in any of the educational activities of the entity, so long as the activities did not otherwise violate the Code.

 

REFERENCES

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

Fla. JEAC Ops. 15-11 and 11-05.

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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 II, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Miguel de la O, Judge Jack Espinosa, Jr., Judge K. Douglas Henderson, Judge Barbara Lagoa, Judge Spencer Levine, 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