FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2017-19
Date of Issue: November 3, 2017

ISSUE

Whether a judge may serve on the board of directors of a neighborhood family community center which is funded almost exclusively by a government grant.

ANSWER: No.

FACTS

The inquiring judge is assigned to the family court division, and has been asked to serve on the board of directors of a neighborhood family community center (“the Center”), a 501(c)(3) not for profit organization. The Center operates a number of programs to support local families and develop local youth, such as after school programing, employment and financial training, literacy classes and the like. The judge reports that the organization was founded by members of the community, and was not created by law, statute or other governmental authority.

According to the judge, the Center is funded almost exclusively through a grant from the County Juvenile Welfare Board (“JWB”). The JWB is a governmental entity created by statute and publicly funded by taxpayer money. The JWB’s website contains a section entitled “What We Do” with a list of neighborhood family centers including the one at issue here. The Center is also supported though in-kind contributions from the city in which it is located, such as use of a building for meetings and other activities of the Center.

The judge does not intend to give legal advice to the organization, participate in fundraising activities beyond the planning stages, become chair of the organization or hold an office. The judge would, however, be a voting member of the board and serve on the election and recruitment committees for potential board members. As a member of the board of directors, one of the duties would be to approve the budget for the Center.

The judge has read this Committee’s opinions regarding a judge’s ability to participate in extra-curricular activities. The judge’s primary concern is whether the administration of public funds involved in serving on the board of directors of the Center presents an ethical issue that would preclude his service.

 

DISCUSSION

Canon 5B of the Florida Code of Judicial Conduct encourages judges to participate in extrajudicial activities concerning non-legal subjects. The judge must conduct all such activities so that they do not cast reasonable doubt on the judge’s capacity to act impartially, undermine the judge’s independence or integrity, demean the judicial office or interfere with the proper performance of judicial duties.

Canon 5C(2) precludes a judge from accepting “appointment to a governmental committee or commission or other governmental position that is concerned with issues of fact or policy on matters other than the improvement of the law, the legal system, the judicial branch, or the administration of justice.”

The Commentary to Canon 5C(2) states in part that “The appropriateness of accepting extrajudicial assignments must be assessed in light of . . . the need to protect the courts from involvement in extrajudicial matters that may prove to be controversial. Judges should not accept governmental appointments that are likely to interfere with the effectiveness and independence of the judiciary.”

The Commentary goes on to say:

Canon 5C(2) does not govern a judge’s service in a non-governmental position. See Canon 5C(3) permitting service by a judge with educational, religious, charitable, fraternal, sororal or civic organizations not conducted for profit. For example, 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).

Based on the information available to it, the Committee does not believe that the activities of the Center are concerned with the improvement of the law, the legal system, the judicial branch, or the administration of justice. Thus, the central issue here is whether the judge’s service on the board of the Center would constitute “appointment to a governmental committee or commission or other governmental position concerned with issues of fact or policy,” so as to be prohibited by Canon 5C(2), or whether service would otherwise violate the Code.

There is a paucity of opinions from this Committee dealing with the issue of what constitutes a government committee, commission or appointment, but in reaching its conclusion here, the Committee has considered the following opinions.

In Florida Judicial Ethics Advisory Committee Opinion 14-20, we opined that a judge could not serve on a county development authority which determines whether to fund grant requests from industry and local governments. The development authority was a statutorily-created public corporation which at the time was funded almost totally from a percentage of taxes paid yearly to the State. The Committee concluded that the authority was a governmental committee or commission or other governmental position. Because it was not concerned with the improvement of the law, the legal system, the judicial branch or the administration of justice, service on the development authority was prohibited by Canon 5C(2). The Committee noted that its conclusion was consistent with “numerous prior opinions advising judges not to accept appointment to a governmental committee or commission or other governmental position that is concerned with funding issues which are unrelated to the improvement of the law, the legal system, the judicial branch, or the administration of justice,” citing as examples Florida Judicial Ethics Advisory Committee Opinions 04-08, 01-16, 99-11 and 97-24. The Committee also noted that a quote from Florida Judicial Ethics Advisory Committee Opinion 01-16 was applicable: “[T]he judge has described the commission in question as one which involves itself in the granting of government funds and overseeing their use. This is a clear responsibility of the executive branch . . . ”

In Florida Judicial Ethics Advisory Committee Opinion 04-08 we advised that a judge could not serve as a board member of the Florida Worker’s Compensation Insurance Guaranty Association. “The FWCIGA is a public corporation, created by statute for the express purpose of participating with the Department of Financial Services.”  The Committee noted that it is arguably involved in the administration of justice. Nevertheless, the Committee determined that the activities of the FWCIGA “involve the carrying out of executive functions in administering the insurance code.” Further, as a board member the judge “would be involved in decisions concerning the payment of claims, and other actions to protect against the [in]solvency of insurers subject to the FWCIGA Act. This arguably infringes on executive branch functions.” In reaching its conclusion, the Committee noted that the conduct would “create a conflict with the judge’s adjudicatory responsibilities” and that Canon 5C(2) also prevents the judge from serving.

In reaching our conclusion in Florida Judicial Ethics Advisory Committee Opinion 04-08, we again looked to Florida Judicial Ethics Advisory Committee Opinion 01-16, in which the issue was whether the inquiring judge could serve as a member of a municipal government’s Children’s Commission charged with fiscal oversight of government funds. The commission’s responsibilities were to “make final decisions on the Commission’s funding strategy and grant making.” The judge wrote that the commission’s approach was to “prevent problems before they occur and ensure accountability for the public dollars granted to programs.” In reaching its conclusion, the Committee wrote the following:

The Committee is not unmindful that participation by judges on many committees and commissions may be justified as being tangentially related to the justice system or the improvement of the law. It is this “justification” through the exceptions stated in Canon 5C(2), which has in some instances blurred the distinction between the branches of government. This blurring, which Canon 5C(2) was adopted to prevent, affects the public’s perception of the independence of the courts from the executive and legislative branches of our governments.

The commentary to Canon 5C(2) states that the purpose of the prohibition is “to protect the courts from involvement in extra-judicial matters that may prove to be controversial. Judges should not accept governmental appointments that are likely to interfere with the effectiveness and independence of the judiciary.”

The Committee opined that the granting of government funds and overseeing their use was a “clear responsibility of the executive branch . . . ” and advised the judge that participation would be a “clear violation of Canon 5C(2).”

In the judge 00-09, this Committee opined that a judge may serve on the Board of Directors of the Collins Center for Public Policy, Inc., “which is an independent, non-partisan and non-profit organization which promotes, through thought and action, creative solutions to major private and public issues facing the people of Florida and the nation.” The Collins Center was “supported from an endowment fund and receives grants from individuals, business organizations, private foundations and, for specific projects, from the Florida Legislature.” There is no discussion in the opinion regarding the impact of the receipt of some public funding, nor is there any indication that the judge would be involved in determining how the public funds from the Florida Legislature would be spent. To the contrary, the facts state that the limited funds from the Legislature were provided “for specific projects.”

Although not directly on point, our opinion in Florida Judicial Ethics Advisory Committee Opinion 01-06 is the closest factually to the issue presented here. In 01-06, it appears that the Children’s Commission was created by the municipality, and therefore was more clearly a “governmental commission.” Here, the Center was created by individuals in the community but appears to have a close association with the County JWB and receives nearly all of its funding from the JWB.

We view this to be a close question. The Committee believes the deciding factor here is that the judge’s duties as a board member would require the judge to be involved in the administration of public funds. Deciding how public funds are spent has the potential to be controversial and blurs the line separating an independent judiciary from executive branch functions.

Participation in a civic organization providing the community services described here is no doubt a laudable community activity. We must however balance that interest against the overarching principal of protecting the public’s confidence in an independent judiciary which is embodied in Canon 5C(2). Under these circumstances we advise the judge not to serve on this board.

 

REFERENCES

Fla. Code Jud. Conduct, Canons 5B, 5C(2).

Fla. JEAC Ops. 14-20, 04-08, 01-06, 00-09.

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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 Miguel de la O, Chair, Judicial Ethics Advisory Committee, Eleventh Circuit, Richard E. Gerstein Justice Building, 1351 N.W. 12th Street, Room 424, Miami, FL 33125.

Participating Members:
Judge Michael F. Andrews, Judge Roberto Arias, Judge Nina Ashenafi-Richardson, Judge W. Joel Boles, 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, and Judge Michael Raiden.


All Judicial Ethics Advisory Committee opinions, subject matter indices, and a search engine are available on the Sixth Circuit’s website at www.jud6.org under Opinions. Committee opinions and related finding tools are also accessible on the Florida Supreme Court’s website at www.floridasupremecourt.org as a secondary posting under Court Opinions.


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