October 6, 1995
PERSONAL AND CONFIDENTIAL
Service on Board of Directors
In re: Committee on Standards of Conduct Governing Judges
Your Inquiry Dated June 1, 1995
You have made two inquiries. Your first question is whether you can be an uncompensated member of the Board of Directors and/or an Advisory Committee of a Florida nonprofit corporation whose main function is the researching, locating, recovering, restoring and displaying artifacts of historical interest. You state that you will not be personally involved in fundraising, except in an "advisory" capacity. You anticipate that your name will be on the letterhead, along with other members of the Board and/or Committee. This letterhead presumably will be used in fund raising efforts.
The eight Committee members who responded to your first question unanimously agree your service as a member of the Board and/or Committee is generally permissible under Canon 5C(3), which states "[a] judge may serve as an officer, director, trustee or non-legal advisor of an educational, religious, charitable, fraternal, sororal or civic organization not conducted for profit, subject to the following limitations and the other requirements of this Code."
Canon 5C(3)(b) governs the extent to which a judge may participate in fundraising efforts:
A judge as an officer, director, trustee or non-legal advisor member or otherwise:
(i) may assist such an organization in planning fund-raising and may participate in the management and investment of the organization's funds, but shall not personally participate in the solicitation of funds or other fund-raising activities, except that a judge may solicit funds from other judges over whom the judge does not exercise supervisory or appellate authority,
(iii) shall not use or permit the use of the prestige of judicial office for fund-raising or membership solicitation.
Further guidance is provided in the commentary to Canon 5: [u]se of an organization letterhead for fundraising or membership solicitation does not violate Section 5C(3)(b) provided that the letterhead lists only the judge's name and office or other position in the organization and, if comparable designations are listed for other persons, the judge's judicial designation."
Thus, assuming the organization prepares its letterhead in compliance with the above-quoted commentary, the eight responding members agree that there should be no problem with your name appearing on the letterhead, even when it is used for fundraising. You state that you will not be personally involved in fundraising, except in an advisory capacity. If "advisory capacity" means you will give legal advice, such conduct is prohibited by Canon 5G. If "advisory capacity" means that you will participate in planing fund-raisin activities, such conduct is permitted under Canon 5C(3)(b)(i).
Your second question concerns whether you may allows juveniles to participate in the activities as part of a treatment and rehabilitation program if you are assigned to the juvenile division. You indicate you would allow such participation only with the consent of the juvenile and his or her parent/guardian. This question involves Canon 2A & B and Canon 5C(3)(a).
Canon 2 concerns the impartiality of a judge. The pertinent sections are as follows.
A. A judge shall respect an (sic) comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
B. A judge shall not allow family, social, political or other relationships to influence the judge's judicial conduct of (sic) judgment. A judge shall not lend the prestige of judicial office to advance the private interest of the judge or others; nor shall the judge convey or permit others to convey the impression that they are in a special position to influence the judge.
Further, Canon 5C(3)(a) provides that a judge shall not serve as an officer, director, etc., if the organization "(i) will be engaged I proceedings that would ordinarily come before the judge, or (ii) will be engaged frequently in adversary proceedings in the court of which the judge is a member..." Canon 3B(5) begins that "[a] judge shall perform duties without bias or prejudice."
The fear, of course, is that you may appear to not be impartial if you allow juveniles that come before you to participated in a program devised by an organization of which you are a member. In Opinion 94-36, a judge inquired whether or not she should permit a nonprofit organization providing drug and alcohol treatment to name its meeting and dining hall after her. Ten members thought that this could violate Canon 2B. The committee also raised the issue that there could be problems as the judge was in the criminal division and that, as (sic) a minimum to avoid the appearance of not being impartial, she should avoid referring defendants to that program.
However, we must also remain cognizant that the Florida Supreme Court in a conference in May 21, 1986 concluded that service on a DUI Countermeasures School Board was the type of organized activity contemplated by Canon 4C (now Canon 4D). In reaching their conclusion, the Court rejected Opinion 86-8.
Thus, six of the seven members who responded to you (sic) second question find that your service in the organization is permissible, but that you will have to make efforts to avoid the appearance of partiality if you are assigned to the juvenile division in the future. The dissenting member felt that your impartiality would come into question if your (sic) were to allow juveniles to participate in the activities as part of a treatment and rehabilitation program.
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 Cardonne, Doughtie, Green, C. Kahn, Patterson, Rushing Silverman and Tolton