September 22, 1995
PERSONAL AND CONFIDENTIAL
Retired judge serving as city hearing officer
In re: Committee on Standards of Conduct Governing Judges
Your Inquiry Dated August 18, 1995
You are a senior judge subject to recall. You have been asked by a city to serve as a hearing officer. You would make preliminary findings relating to claims concerning vested rights. You seek an opinion as to whether this service is permissible under the Code.
As a retired judge subject to recall, you are subject to all of the provisions of the Code, except Canon 5C(2), 5E, 5F and 6A. See Application of the Code of Judicial Conduct. Canon 5C(2) provides, in pertinent part, that 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 matter (sic) other than the improvement of the law,the legal system or the administration of justice." Canon 5F prohibits a judge from acting as "an arbitrator or mediator otherwise performing judicial functions in a private capacity unless expressly authorized by law or Court rule." If these Canon were applicable to you, you would clearly be prohibited from serving as a hearing officer for a city. However, you are expressly exempted.
Additionally, the Committee has previously addressed this issue. In Opinion 85-3, the Committee held that a retired judge subject to recall could serve as an arbitrator or hearing examiner for Dade County. At that time, we relied on the same provisions quoted above. While the Code has been amended since 1985, the provisions relied upon that Opinion remain substantially the same.
Therefore, the responding members of the Committee unanimously conclude that you can serve as hearing officer for the city. However, you are still subject to the remaining provisions of the Code and must guard against the appearance of impropriety.
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 judges, but the Judicial Qualifications Commission is not bound by the interpretive opinions by the Committee. Petition of the Committee on Standards of Conduct Governing Judges, 327 So.2d 5 (Fla. 1976).
Very Truly Yours,
Oliver L. Green, Jr., Chairman
Committee on Standards of Conduct
CC: All Committee Members
Office of the State Courts Administrator
(Name of judge deleted from this copy)
Participating Members:Judges Dell, Doughtie, Green, C. Kahn, L. Kahn, Patterson, Rushing Silverman, Tolton and Attorney Cushman