FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2016-11
Date of Issue: July 27, 2016

ISSUES

1. May a judge serve on a statutorily created School Advisory Council for a public elementary school, where the council is tasked to assist with the preparation and evaluation of a School Improvement Plan setting forth recommended strategies to address and improve gaps or shortfalls in specific areas of academic achievement; assist in preparing school’s annual budget; and participate in determining how certain funds will be allocated among teacher bonuses, hiring temporary staff, or purchasing equipment or materials?

ANSWER: No.

2. May a judge serve as a board member of a non-partisan political and public affairs organization, which functions to inform and educate the community’s business, political, and social interests and to promote more active participation by all citizens in the democratic process?  The inquiring judge’s role as a board member will involve no fundraising.

ANSWER: Yes.

ISSUE 1 - FACTS

The inquiring judge wishes to serve on the School Advisory Council (“SAC”) for a local public school. The SAC is created pursuant to section 1001.452, Florida Statutes(2016), and is composed of parents, teachers, education support employees, students (where appropriate), and other business and community citizens. The county school board created a specific written policy governing SACs to ensure compliance with section 1001.452. The SAC is tasked to assist in the preparation of the school’s annual budget and a School Improvement Plan (“SIP”), which sets forth recommended strategies to address and improve gaps or shortfalls in specific areas of academic achievement. The SAC shall be the sole body responsible for final decision making at the school regarding school improvement and accountability. However, the county’s superintendent of schools annually reviews the SIP, and it must be approved by the school board.

Pursuant to section 1008.36(4), Florida Statutes (2016), the SAC and the school’s staff jointly determine how school recognition funds will be distributed among these authorized purposes: nonrecurring bonuses to faculty and staff, nonrecurring expenditures for educational equipment or materials used to maintain or improve student performance, or temporary personnel to assist in maintaining and improving student performance.

According to statute and the school board’s policy, the SAC shall be governed by and comply with the Sunshine Law (section 286.011, Florida Statutes) and the Public Records Law (Chapter 119, Florida Statutes).

 

DISCUSSION

Canon 5C(2) prohibits a judge from serving on a governmental committee or commission that is concerned with issues of fact or policy other than improvement of the law, the legal system, or the judiciary. The comments to Canon 5C(2) state in part that “service on the board of a public educational institution, unless it were a law school, would be prohibited under Canon 5C(2).” Citing to the just quoted comment, the Committee found in Opinion 16-01 that a judge was prohibited from serving on the board of directors of a non-profit organization that works in the community to combat illiteracy and operates a charter school, noting that all charter schools are public schools under section 1002.33(1), Florida Statutes.

Citing the same comment, the Committee stated in Opinion 11-05 that a judge may not chair an educational non-profit organization designed to assist, promote, and support the public school board and superintendent in activities that advance and improve the quality of instruction in the public school system. The Committee’s analysis in Opinion 11-05 is instructive here, as the SAC performs several important policy making tasks that are akin to governmental functions: (1) prepare the School Improvement Plan, (2) assist in the preparation of the school’s annual budget, (3) determine allocation of school recognition funds, acting jointly with the school’s staff, and (4) select programs or projects to receive school improvement funds provided by the school board. All of the SAC’s policy-making authority comes from and is limited by statute and the schoolboard’s written policy. The SAC’s SIP must be reviewed and verified by the superintendent and approved by the school board, which means that the SAC policy decisions must be in concert with the goals established by the school board. Although the school board’s policy specifically states that the SAC has no powers or duties reserved to the school board, it is clear that the SAC would be performing functions similar to those of a school board.

We note that in Opinion 96-22 the Committee found that a judge may participate in an educational assembly sponsored by a number of public and private sector entities to assist in establishing a model public educational system for the county. The assembly’s efforts were to be coordinated by a university. That opinion noted the assembly was not a governmental committee or commission, and “the inquiring judge has not asked to be permitted at this point to participate in the implementation of any policy recommendations that may come out of the assembly.” In contrast, the inquiring judge here, as part of the SAC, will create and help implement policy including funding and spending in a united effort with and approved by the school board.

Therefore, because the SAC in question would operate for a non-law related public school, the inquiring judge may not serve as a member.

 

ISSUE 2 - FACTS

The inquiring judge wishes to serve as a board member of a non-partisan political and public affairs organization that functions to inform and educate the community’s business, political, and social interests and to promote more active participation by all citizens in the democratic process. The inquiring judge’s role as a board member will involve no fundraising.

 

DISCUSSION

In Opinion 95-1, the Committee found that a judge could become a member of and attend nonpartisan or bipartisan public awareness organizations, such as Tiger Bay Clubs, that may be involved in the discussion of political and societal issues. The question raised in the present inquiry takes it one step beyond membership, as the judge wishes to serve on the organization’s board of directors. In Opinion 82-03 the Committee determined that it would be inappropriate for a judge to continue serving as president of the Forum Club, which is similar to a Tiger Bay Club. However, the concerns expressed in Opinion 82-03 were focused on the overall nature of the club’s activities, rather than any specific issues that might arise by the judge serving as president of the club. Those more general concerns were dealt with in Opinion 95-1 and are no longer a basis for discouraging participation in such an organization.

We acknowledge that there may be important differences between mere membership and service on the board of such an organization; however, the inquiring judge has already advised that no fundraising will be involved. The Committee reminds the inquiring judge to remain constantly on guard not to be placed in a partisan position or to act for the political advantage of a person or party in order to avoid inadvertently violating Canon 7. The judge must also abide by the limitations set forth in Canon 5C(3)(b)(ii)-(iii) regarding membership solicitation. Therefore, we find that the inquiring judge may serve on the board of a nonpartisan or bipartisan public awareness organization.

 

REFERENCES

Fla. Stat. sections, 119.01 et seq, 286.011, 1001.452, 1002.33(1), 1008.36(4)
Fla. Code of Jud. Conduct, Canons 5C(2), 5C(3)(b)(ii)-(iii), 7, and Comments to 5C(2)
Fla. JEAC Ops. 16-01, 11-05, 96-22, 95-1, 82-03.

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

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 Spencer D. Levine, Chair, Judicial Ethics Advisory Committee, Fourth District Court of Appeal, 1525 Palm Beach Lakes Blvd., West Palm Beach, FL 33401

Participating Members:
Judge Roberto Arias, Judge Nina Ashenafi-Richardson, Judge W. Joel Boles, Judge Lisa Davidson, Judge Miguel de la O, Judge James A. Edwards, Mark Herron, Esquire, Judge Barbara Lagoa, Judge Spencer D. Levine, Judge K. Douglas Henderson, Patricia E. Lowry, Esquire, 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