FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2018-19
Date of Issue: July 25, 2018

ISSUE

May a judge accept an appointment as non-voting chair of a committee created by a county commission to consider establishment of a Children’s Services Council as provided in Chapter 125, Florida Statutes?

ANSWER: Yes, but the judge should be mindful of significant restrictions that might hinder the judge's ability to chair such a committee.

FACTS

The inquiring judge advises that the county commission of the county in which the judge sits is considering the creation of a Children’s Services Council. Such councils are, in effect, special taxing districts. As proposed, the council would be created upon a favorable vote of the county electorate at an upcoming general election.

The judge has been asked to consider serving as non-voting chair of a committee that would be created to consider the establishment of the Children’s Services Council. It is anticipated that the committee would consider matters such as the types of services and needs that might be addressed if such a council is established. According to the judge, it is likely that the judge would be acting as a spokesperson and would be advocating on behalf of the committee.

 

DISCUSSION

Judges are encouraged by Fla. Code Jud. Conduct, Canon 4 to engage in activities to improve the law, the legal system, and the administration of justice. Canon 4(C), however, places limits on such activities, stating:

A judge shall not appear at a public hearing before, or otherwise consult with, an executive or legislative body or official except on matters concerning the law, the legal system, or the administration of justice . . .

Fla. Code Jud. Conduct, Canon 5(C)(1) restates the above limitation in language almost identical to that cited from Canon 4(C), above. Canon 5(C)(2) places the following further restrictions on a judge’s non-judicial activities:

A judge shall not accept 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.

This Committee has previously concluded that judges are permitted to serve on Children’s Services Councils. Although we were concerned that service on a governmentally appointed committee with powers as broad and diverse as those of a Children’s Service Council might appear to violate the proscriptions of Canon 5(C)(2), the Committee concluded that such service does not violate the Code of Judicial Conduct. See Fla. JEAC Op. 97-20.

The Committee has not previously considered the specific issue raised by the inquiring judge, but has considered related questions. It found in Fla. JEAC Op. 90-24 that a judge may publicly support passage of a law creating a special taxing district for child welfare under Section 125.901. We have also opined that a judge could speak on behalf of the establishment of a Children’s Services Council in the judge’s home county “so long as the program is law related” and the judge does not become active in any fund raising aspect. SeeFla. JEAC Op. 91-02.

In light of the previous opinions issued by this Committee, and the spirit of the Code of Judicial Conduct discussed in Fla. JEAC Op. 97-20, we are of the opinion that the inquiring judge may accept appointment to, and serve on, a committee created by the county commission to consider establishment of a Children’s Services Council and may serve as its non-voting chair. Further, the judge may publicly state the judge’s support for the establishment of a Children’s Services Council.

Although the committee believes the judge may accept the appointment, as stated above, we are compelled to remind the judge that there are certain duties that may be expected of the chair of such a committee that a judge cannot undertake. Fla. Code Jud. Conduct, Canon 5(C)(3)(b)(i) and (iii) prohibit judges from personally or directly participating in the solicitation of funds and from using or permitting the use of the prestige of judicial office for such purposes. Because judges are so restricted in engaging in fund-raising activities, the judge as chair would not be in a position to fund raise by advocating for imposition of taxes to fund the council’s activities. The judge should consider whether it would be more appropriate to serve only as a member of the committee and forego the appointment as chair to permit another person who may properly address finances and fund raising to serve as chair instead. Should the judge still decide to serve as chair, the judge must avoid use of the judge's name or office for the fund-raising aspect of the campaign, and should avoid any involvement in issues concerning fund-raising or tax consequences related to either the Children's Services Council or to the programs advocated by the committee or the council. (See Fla. JEAC Ops. 91-02, 90-24, and 78-14.)

 

REFERENCES

Section 125.901, Florida Statutes (2018)
Fla. Code Jud. Conduct, Canons 4(C), 5(C)(1), 5(C)(2), 5(C)(3)(b)(i), 5(C)(3)(b)(iii)
Fla. JEAC Ops. 97-20, 91-02, 90-24, 78-14

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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 James A. Edwards, Judicial Ethics Advisory Committee Chair, Fifth District Court of Appeal, 300 South Beach Street, Daytona Beach, FL 32114.

Participating Members:
Judge Michael 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