FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2020-10 (Election)
Date of Issue: April 8, 2020

ISSUES

1. May a judicial candidate’s campaign committee maintain a Facebook page on behalf of the candidate and post updates and communications on behalf of the candidate that are written in the first person (i.e., as if the candidate is communicating directly to the reader)?

ANSWER: Yes, provided the “first person” communications do not seek or solicit financial support or public statements of support.

2. May a judicial candidate hire a vendor company where a principal of that company is an officer in a partisan political committee?

ANSWER: A majority of the Committee answers, yes, subject to the restrictions the candidate reports. A dissenting Committee member would answer the question in the negative.

 

FACTS

A judicial candidate wishes to know whether a Facebook page that is maintained by the candidate’s committee can include communications and posts that would appear to be directly from the candidate. That is, the page’s communications and posts would be phrased in the first person (“I” for the candidate, instead of “we” for the committee).

The candidate also wishes to know whether the candidate may hire a certain vendor. According to the candidate, this vendor “happens to also be an officer in a partisan political committee. This person would not be my campaign manager and is being hired in his individual capacity as a business man. This individual also is up for election in a neighboring county but will not be on my ballot. . . . The officer’s company and not the individual would be named on the work completed. Additionally, the vendor has other people who work for or with him and he may only oversee and not do the actual work on my campaign. . . . [T]he vendor would not be utilizing the resources or materials of the political party he is affiliated with. . . . [T]he vendor does digital work and I wanted to hire his company to assist me in my campaign. My committee and I would be responsible for content and the vendor for distribution.”


DISCUSSION

Our response to the first issue begins with Fla. Code Jud. Conduct, Canon 7C(1), which provides in pertinent part:

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.

The canons (and this Committee’s opinions interpreting the canons) have consistently emphasized that a candidate cannot do indirectly through others what the candidate would be prohibited from doing directly. See Fla. Code Jud. Conduct, Canon 7A(3)(d) (“except to the extent permitted by Section 7C(1), [a judicial candidate] shall not authorize or knowingly permit any other person to do for the candidate what the candidate is prohibited from doing under the Sections of this Canon”). Since the candidate cannot “personally solicit” financial contributions or statements of public support, any Facebook page communication or post that appears to come directly from the candidate, although authored by somebody else, could not do so either. In other words, it makes no difference whether the candidate posts “I am asking for your financial support for my campaign,” or whether a committee member writing as if he or she were the candidate posts “I am asking for your financial support for my campaign.” The reader would understand either communication as coming from the candidate. According to Canon 7C(1), that is improper.

But to the extent the posts contemplated by the candidate would encompass such things as updates on campaign events, candidate appearances, public speeches, statements by the candidate about the candidate’s qualifications, and the like, there is no reason that the posts couldn’t be written in the first person, as if they were from the candidate. We do not believe Canon 7 was intended to completely stifle a candidate’s ability to communicate about his or her candidacy through what has become a very common method of campaigning. Cf. Fla. JEAC Op. 16-13 (“Nothing in Canon 7 prohibits a judicial candidate from asking the electorate to vote for him or her-whether on Facebook, in person, or through mass media.”).

The second inquiry poses a harder question, such that we do not have a unanimous opinion for the inquiring candidate.

A majority of the Committee answers the second question as follows: In Fla. JEAC Op. 18-20 we stated that Fla. Code Jud. Conduct, Canon 7 and Florida Statute section 105.071 “unequivocally prohibit judicial candidates . . . from becoming involved in partisan politics.” In that opinion we indicated that a candidate who had retained a campaign management firm, “not knowing that one of the owners or principals of the firm . . . holds an executive position in a partisan organization, in an individual capacity” could continue to employ the firm under those circumstances as long as “the judicial candidate takes all steps necessary to ensure that the campaign management firm does not utilize the resources, facilities, or materials of the partisan political organization on behalf of the judicial candidate.” Our opinion in 18-20 balanced the letter and spirit of Canon 7, section 105.071, and the reality that “[c]ampaign management firms and consultants often times advise several different candidates for different offices during the same election cycle.”

The present inquirer, however, is fully aware of the partisan connection between the vendor and its officer. Moreover, the candidate knows that the vendor’s officer is a candidate for election in a different county (we were not informed whether the election is partisan or non-partisan, but we assume it is the former). Thus, the inquiring candidate could not rely entirely on the guidance of that opinion here. Nevertheless, we think the precautions the candidate proposes sufficiently mitigate any risk that the candidate might be perceived as “becoming involved in partisan politics.”

In Fla. JEAC Op. 08-16, a divided Election Subcommittee opined that a candidate could not employ “a partisan political candidate running for a different office or an executive officer of a partisan political party” as the candidate’s “campaign manager/consultant.” One of the then-subcommittee members believed that the candidate could hire such an individual as long as the campaign manager/consultant did not utilize any resources, facilities, or materials of his partisan political committee while performing work for the candidate and the candidate did not hold out the campaign manager/consultant in his individual capacity or as an executive officer of a partisan political committee as working for the candidate.

Those very restrictions are what the inquiring candidate proposes here. More than that, though, as we understand the inquiry the candidate would not hire an individual (who happens to be publicly engaged in partisan politics), but rather his business, thus further removing the possible perception that the judicial candidate is engaged in partisan politics (we assume the business’ name is readily distinguishable from the principal’s). And the scope of the contemplated employment appears to be limited-the candidate would hire the business as a digital advertising vendor, not as a campaign manager or consultant.1 Given these restrictions, we are confident that the candidate would not be perceived as participating in partisan politics for purposes of Canon 7 and Fla. Stat. §105.071. To the extent that our current opinion differs from Fla. JEAC Op. 08-16, we recede from our former opinion.

A dissenting Committee member would answer the second question as follows: The facts underlying this opinion indicate that the candidate proposes to hire an individual who is “an officer in a partisan political committee” and who is up for election in a neighboring county,” presumably as a partisan candidate, but who will not be on the same ballot as the candidate.

In Fla. JEAC Op. 10-18, Issue 2, the Committee opined that a candidate for judicial office could use as a campaign consultant a sitting member of the county commission who is not currently running for office or asserting any political party view in support of any other non-judicial or judicial candidate. The Committee’s conclusion: “In sum, we find no basis for a per se rule forbidding other, nonjudicial officeholders-who are not themselves candidates in the same election cycle, are not acting on behalf of any partisan organization, and are not presenting judicial candidates to the public as a group—to serve as campaign managers for judicial candidates.” One of the assumptions underlying that opinion was “that the county commissioner is not an executive officer of a partisan political committee.”

The question before the Committee in Fla. JEAC Op. 08-16, Issue 2, was: May a candidate for election to judicial office hire an executive officer of a partisan political committee to be the judicial candidate’s campaign manager/ consultant? The answer of the Committee was: No.

Reliance on the single dissenting member of the Election Subcommittee in Fla. JEAC Op. 08-16 ignores the view of the majority of the then-members of the Subcommittee:

Two members of the elections subcommittee believe that such action would improperly inject partisan politics into the campaign because the judicial candidate would likely have access (or would be perceived to have access) to the resources and materials of the partisan political committee for which the prospective campaign manager/consultant serves as executive officer. These two subcommittee members further believe that the employment of an executive officer of a partisan political committee in the high profile role of campaign manager could create the public perception that the judicial candidate was seeking the support, or had sought the support, of that partisan political committee.

I would answer the second inquiry in the same way here, and respectfully dissent from that part of the Committee’s opinion today.

 

REFERENCES

Fla. Stat. §105.071
Fla. Code Jud. Conduct, Canons 7A(3)(d), 7C(1)
Fla. JEAC Ops. 18-20, 16-13, 10-18, 08-16

_____________


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 W. Joel Boles, Judicial Ethics Advisory Committee Chair, First Circuit M.C. Blanchard Judicial Building, 190 Governmental Center, 6th Floor, Pensacola, FL 32502 or JEAC@flcourts.org.

Election Subcommittee Members:
Judge Roberto Arias, Mark Herron, Esquire, Judge Matthew C. Lucas, and Judge Michael Raiden.

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 Jeffrey T. Kuntz, Judge Matthew C. Lucas, 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 deleted)
Chief Justice Charles T. Canady, Justice Liaison
John Tomasino, Supreme Court Clerk
All Committee Members
General Counsel of the JQC
Melissa Hamilton, JEAC Staff Counsel

 

 

 

1. A campaign manager or consultant is something of a term of art. There is no statutory or regulatory definition of the role of a “campaign manager” or “consultant” for purposes of judicial elections. Nor do the canons make any mention of campaign managers or consultants. Nevertheless, the Committee is well aware of the vital (and sometimes public) role that consultants or campaign managers frequently play in judicial elections. See generally www.theaapc.org (American Association of Political Consultants, explaining that political consultants provide “survey research, television or radio production and placement, telemarketing, direct mail, fund raising, media relations, computer use, and a host of additional forms of expertise” in political campaigning). Because the inquiring candidate does not propose to hire this vendor as the candidate’s consultant or campaign manager, we do not believe the resolution of the second issue in JEAC Op. 2010-18 would have any application here.