May 25, 1989

Opinion No. 89/10
Canon 5B(2)

Lending prestige of office: ordering probationer to perform private, non-governmental services

Dear Judge

In your inquiry you have asked two questions:

May a judge order a probationer as a condition of probation, to perform community service work for a specific charitable/benevolent on non-profit organization, e.g., Elks, Moose, Lions Club, Chamber of Commerce, etc.?

If such is permissible what is the distinction between ordering a probationer to contribute money to the organization as opposed to physical labor (Opinion 87/6, Canon 2B and 5B(2), attached)?

The committee's view is that your first question generates substantial concerns and the consensus is a negative response to both questions. I find one member's comment most compelling:

"I wonder why Judge.... would walk into this quagmire when there
are so many non-charitable public institutions which would benefit
from these services."

Another member has suggested the possibility of a list of all appropriate community service organizations rendering particular types of services. You could then indicate the type of service appropriate for the probationer rather than a specific entity.

It has been suggested by one member that a judge ordering a probationer to perform services for the Elks Club, which could include cleaning the bar on Sunday morning, would probably raise more eyebrows than a judge ordering a probationer to address envelopes for the United Way.

In short, the committee finds Opinions 87/6 and 84/11, copies of which are enclosed, responsive to the questions you have posed with the result that there is no distinction between ordering a probationer to contribute money to a prescribed organization as opposed to physical labor.

I emphasize, however, that the committee does not suggest a prohibition barring a probationer from the performance of service for a non-private, governmental agency.

The 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 issued by the committee. Petition of the Committee on Standards of Conduct for Judges 327 So2d 5 (Fla. 1976).

Cordially yours,

Richard H. Frank, Chairman
Committee on Standards of Conduct Governing Judges

cc: All Committee Members

Participating Members: Judges Green, Tolton, Booth, Dell, Doughtie,Frank, Simons, Goldstein, and Clarke, Esquire.

All reference to the inquiring judge is deleted from the copies sent to the following individuals.

Mr. Sid White, Clerk of the Supreme Court of Florida
Linda Yates, Managing Editor, The Florida Bar Journal
Brooke S. Kennerly, Executive Director, Judicial Qualifications Commission.
Hon. Walter K. Stapleton, Chairman, Ethics Advisory Panel of the Judicial Conference of the United States .
Jeffrey M. Shaman, Esquire, Director, Center for Judicial Conduct Organizations
Ms. Jean Underhill, Librarian, Broward County Law Library
Mr. Robert Wallace, Librarian, Dade County Law Library
Mr. Brian Polley, Librarian, Supreme Court of Florida
Mr. Richard Kuhn, Court Administrator, Lee County
Hon. Thomas H . Barkdull , Jr ., Third District Court of Appeal
Ms. Georgeanne Marsh, Center for Professional Responsibility, American Bar Association