Opinion Number: 98-6
Date of Issue: May 28, 1998
ETHICAL PROPRIETY OF JUDGE'S CONTINUED DIRECTORSHIP OF THE "MENTAL HEALTH TASK FORCE" FOLLOWING THE FORMATION OF A NON-PROFIT CORPORATION RESPONSIBLE FOR SEEKING PRIVATE FUNDING TO SUPPORT A MENTAL HEALTH FACILITY CONNECTED WITH THE COURT.
Will a judge's continued directorship of a "mental health task force"
be compromised by the creation of a non-profit corporation if the corporation
seeks private funding to support a mental health facility that is connected
to the mental health court? This question assumes that neither the directors
and participants of the non-profit corporation are task force members nor
would the judge render any advice, direction or support to the newly formed
ANSWER: No. A judge may engage in activities to improve the law, the legal system, and the administration of justice. However, a judge must not solicit funds, participate in fund raising activities, or give investment advice to such organization. The judge must be mindful of any conflicts that may arise and act appropriately in such cases.
The inquiring judge has been the chairperson of a task force that identifies and addresses issues involving the mentally ill in the criminal justice system. The task force has been responsible for the creation of the nationís first "Mental Health Court".
Their latest project is to establish a mental health treatment facility to house individuals under the jurisdiction of the mental health court. The primary capital and operating funds for this facility are being sought from the state legislature and the county commission. In addition, a significant commitment has also been received from a fund of money administered by the federal court consisting of fines paid by the county from jail overcrowding.
The committee is also discussing the creation of a non-profit corporation that would solicit private funding, as a possible additional revenue source for the operation of the facility. The directors and participants of the non-profit corporation would not be task force members, nor would the inquiring judge render any advice, direction or support.
Canon 4 of the Code of Judicial Conduct is entitled, "A Judge May Engage in Activities to Improve the Law, the Legal System, and the Administration of Justice."
Canon 4A states that a judge may be involved in the above with the proviso that all of the judge's quasi-judicial activities do not:
(1) cast reasonable doubt on the judgeís capacity to act impartially as a judge;
(2) demean the judicial office; or
(3) interfere with the proper performance of judicial duties.
Section 4B provides:
A judge may speak, write, lecture, teach and participate in other quasi-judicial activities concerning the law, the legal system, and the administration of justice, subject to the requirements of this Code. [emphasis added]
Additionally, the Commentary to Canon 4B instructs that:
[A] judge is in a unique position to contribute to the improvement of the law, the legal system, and the administration of justice, including revision of substantive and procedural law and improvement of criminal and juvenile justice.
Therefore, being a part of the task force with which he has been a member for over four years is permissible since it seeks to improve the administration of justice by addressing issues involving mentally ill defendants. In addition, the role of task force chairperson alone neither appears improper nor does it interfere with the proper performance of judicial duties.
Prior Committee Opinion 94-31 approved of such an activity. In that opinion, the committee members agreed that a judge could serve on the District Juvenile Justice Board and associated local councils which plan to raise funds through establishing related 501(c)(3) nonprofit corporations and to lobby for legislative changes. The committee concluded that because the activities of the District Juvenile Justice Board is law related, the judge should be able to continue to serve, at least as a member, pursuant to Canon 4(c). However, the committee held that the judge should abstain from certain votes that involve conflict of interest issues. In addition, the judge should not personally solicit funds as proscribe by Canon 4 (B)(2). The committee also emphasized that because of the high profile nature of serving as a chairperson, the judge should be especially sensitive to not allow the misuse of the prestige of the judicial office by the Board or any corporation in future fund raising efforts.
Opinion 93-23 involved a judge's service as an unpaid member of the board of directors of a local DUI countermeasure school. This committee referred to Canon 4C and agreed that the judge was permitted to serve. However, five committee members stated that judicial ethics require personal decisions by a judge and that he/she should decide whether such service would create an appearance of impropriety or create a conflict with the judge's particular judicial position.
It has likewise been recognized that a judge may serve as a member of an Alcohol, Drug Abuse and Mental Health Planning Council. See, Op. 88-30 and 88-24. The caveat attached to such determination is that being honorary chairman will not impair the exercise of judicial duties through excessive recusals or otherwise adversely affect the full and fair exercise of judicial duties.
In Opinion 93-40 a criminal judge inquired if it was a conflict to be a member of the board of directors of a Mental Health Center, Inc., a non-profit corporation which provides service to the chronically mentally ill. This committee reasoned that it would be best for the judge to discontinue service on the board of directors until such time as he/she was transferred to a civil division.
In the present inquiry, the judge sits in the probate and criminal divisions. This may cause a conflict when guardianship cases involving mental health wards or mentally ill defendants are before the court. The inquiring judge must be on guard, as well as sensitive to these potential issues.
As in the present situation, Opinion 94-36 was an inquiry as to whether a circuit court judge may permit a not-for-profit corporation that provides drug and alcohol treatment to name its meeting and dining hall after the judge. The Committee felt that because the inquiring judge sat in a criminal division, there was a likelihood that he/she and other criminal division judges could be in a position to sentence defendants to that not-for-corporation for treatment. The opinion further states that at a minimum there would be the caveat that to avoid the appearance of partiality the judge should consider not referring defendants to that particular program.
In conclusion, assuming the directors and participants of the newly formed non-profit corporation are not task force members and the inquiring judge refrains from rendering any advice, direction or support, the inquiring judge may remain the chairperson of the Task Force. The inquiring judge must refrain from soliciting funds, participating in fund raising activities, or giving investment advice to the corporation. See, Opinion 74-16. The judge must also be mindful of any conflicts that may arise and act appropriately in such cases.
Florida Code of Judicial Conduct: Canons 4, 4A, 4B, 4B2, and 4C
Florida Judicial Ethics Advisory Committee Opinions: 94-36, 94-31, 93-40, 93-23, 88-30, 88-24, and 74-16
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 by the Committee. Petition of the Committee on Standards of Conduct Governing Judges, Opinion No. 90,133 (Fla. September 4, 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. Id.
For further information, contact The Honorable Scott J. Silverman, Chairman, Judicial Ethics Advisory Committee, The Richard E. Gerstein Justice Building, 1351 NW 12th Street #513, Miami, Florida 33125.
Participating Members: Judges Cardonne, Dell, Charles J. Kahn, Lisa D. Kahn, Patterson, Rushing, Silverman, Smith, Tolton, and Attorney Blanton.
Copies furnished to:
Justice Charles T. Wells
All Committee Members
All Members of the J.Q.C.
Office of the State Courts Administrator (Name of judge deleted from this copy)