FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2018-16 (Election)1
Date of Issue: June 25, 2018

ISSUE

May a judicial candidate’s committee of responsible persons engage the services of a person or entity who will perform fundraising activities on behalf of the committee and be compensated based on a percentage of the contributions received through the efforts of such fundraiser persons or entities?

ANSWER: An individual who solicits a contribution must be a member of the committee of responsible persons. Whether such individual may be compensated based on a percentage of the contributions received through his or her individual efforts is not addressed in the Canons.

 

FACTS

This inquiry comes from a candidate for judicial office to be filled by election. The candidate asks whether the committee of responsible persons may engage the services of a person or entity who will perform fundraising activities on behalf of the committee and compensate such fundraiser a percentage of the contributions received through the efforts of such fundraiser persons or entities. In posing this inquiry, the judicial candidate asks the Committee to assume that the committee of responsible persons complies with all the restrictions for fundraising communications.

  
DISCUSSION

Canon 7A(1)(e) provides that a candidate for election to judicial office shall not “solicit funds for, pay an assessment to or make a contribution to a political organization or candidate, or purchase tickets for political party dinners or other functions.” (Emphasis added.) However, Canon 7C(1) provides that:

A candidate, including an incumbent judge, for a judicial office that is filled by public election between competing candidates shall not personally solicit campaign funds, or solicit attorneys for publicly stated support, but may establish committees of responsible persons to secure and manage the expenditure of funds for the candidate's campaign and to obtain public statements of support for his or her candidacy. Such committees are not prohibited from soliciting campaign contributions and public support from any person or corporation authorized by law. A candidate shall not use or permit the use of campaign contributions for the private benefit of the candidate or members of the candidate's family. (Emphasis added)

In addition, Canon 7A(3)(b) provides that “[a] candidate for judicial office … shall encourage members of the candidate’s family to adhere to the same standards of political conduct in support of the candidate as apply to the candidate.” Similarly, Canon 7A(3)(c) provides that “[a] candidate for judicial office …shall prohibit employees and officials who serve at the pleasure of the candidate, and shall discourage other employees and officials subject to the candidate’s direction and control from doing on the candidate’s behalf what the candidate is prohibited from doing under the Sections of this Canon.”

Applying these requirements, in Florida Judicial Ethics Advisory Committee Opinion 14-04 this Committee advised that a candidate may have a campaign website which, if created and maintained by a committee of responsible persons, may contain a link permitting direct contributions, as long as solicitations are made by the candidate’s committee of responsible persons, and not by the candidate. If a campaign website seeks to solicit campaign funds, it must state that it is maintained by the committee of responsible persons in support of the candidate’s campaign, so it is clear that it is not maintained by the candidate personally. See Fla. JEAC Op. 12-15. “Websites and Facebook pages promoting the candidacy of a judge or judicial candidates should be established and maintained by these committees, and not by the judge or judicial candidate personally.”  Fla. JEAC Op. 10-28. See also Fla. JEAC Op. 08-11. In Florida Judicial Ethics Advisory Committee Opinion 10-16 (Election), this Committee advised that a judicial candidate’s relatives, who are members of the committee of responsible persons, other than those in “close familial relationship,” may solicit contributions and endorsements in support of candidate’s election.

The Canons and their application through the referenced opinions are clear that only members of the committee of responsible persons may solicit funds for a judicial candidate's campaign. In Florida Judicial Ethics Advisory Committee Opinion 04-04 (Elections), this Committee opined, in the context of the committee seeking contributions through a website, that “nothing in the Code precludes the committee from delegating various responsibilities to a single committee member.” Thus, so long as the solicitation of contributions is a solicitation from a member of the committee of responsible persons, it is consistent with the requirements of the Canons and the opinions of the Committee.

Nothing in the Canons addresses whether a member of the committee of responsible persons who performs fundraising activities on behalf of the committee can be compensated for such activities based on a percentage of the contributions received through his or her efforts in obtaining a contribution. Nor has the committee found any prohibition in Florida’s election laws on compensating a fundraiser based on a percentage of the contributions received through his or her efforts. However, rendering an opinion on Florida’s election laws exceeds the charge of this committee. The judicial candidate is advised that an opinion may be sought as to whether Florida’s elections laws permit compensating a fundraiser based on a percentage of the contributions received through his or her efforts in obtaining a contribution from the Florida Division of Elections, pursuant to Section 106.23, Florida Statues.

 

REFERENCES

Fla. Code Jud. Conduct, Canons 7A(1)(e); 7A(3)(b); 7A(3)(c); 7C1
Fla. JEAC Ops. 04-04; 08-11; 10-16; 10-28; 14-04

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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,Miami-Dade County Courthouse, 73 W. Flagler Street, Room 1407, Miami, FL 33130.

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, Judge David Green, Mark Herron, Esquire, Judge Barbara Lagoa, Judge Spencer D. Levine, Judge Michael Raiden and Charles Reynolds, Esquire.

 


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

 

 

1.The Judicial Ethics Advisory Committee has appointed an Election Practices Subcommittee. The purpose of this subcommittee is to give immediate responses to campaign questions in instances where the normal Committee procedure would not provide a response in time to be useful to the inquiring candidate or judge. Opinions designated with the “(Election)” notation are opinions of the Election Practices Subcommittee of the Judicial Ethics Advisory Committee, and have the same authority as an opinion of the whole Committee.