Opinion Number: 98-22
Date of Issue: September 25, 1998

WHETHER A PART-TIME CHILD SUPPORT HEARING OFFICER MAY ALSO SERVE AS A PART-TIME FAMILY MEDIATOR?

Whether a part-time Child Support Hearing Officer may also serve as a part-time family mediator?
ANSWER: YES.

The inquiring chief judge states his circuit is planning to use a part-time mediator who does mediation in family and dependency court to also work as a part-time Child Support Hearing Officer. Compensation for both of these services are paid through the Court system, i.e, the person is not privately paid for either of these functions. The judge asks whether this employment arrangement would constitute a violation of the Code of Judicial Conduct.

The "Application of the Code of Judicial Conduct" states that the Code is applicable to child support hearing officers. This would include "part-time" child support hearing officers. Opinion 95-8. The "Application of the Code of Judicial Conduct" requires such officers to conform with Canons 1, 2A, and 3, and such other provisions of the Code that might be reasonably applicable, depending on the nature of the judicial function performed.

Canon 5F forbids a judge from acting as an arbitrator or mediator or otherwise performing judicial functions in a private capacity unless expressly authorized by law or Court rule. (emphasis added.) The Canons do not prohibit a judge from acting as an arbitrator or mediator in fulfilling his or her judicial functions. Canon 3(B)(7)(d) permits a judge, with the consent of the parties, to confer separately with the parties and their lawyers in an effort to mediate or settle matters pending before the judge.

In Opinion 85-3, a retired circuit judge subject to recall to judicial service asked whether he could serve as an arbitrator or hearing examiner for a county. The Committee was of the unanimous opinion that the judge could accept employment as an arbitrator or for some other quasi-judicial service such as that of a hearing examiner. There was cautionary language in the opinion that the judge avoid conflict, either direct or indirect, which might arise if he, as an arbitrator or hearing examiner, were involved in a case or matters relating thereto, which was subject to review by him as a judicial officer. There was a recommendation that the judge not sit during the same time period as judge and as arbitrator or examiner. See also Opinion 95-33 in which the Committee relying on Opinion 85-3 concluded that a retired judge subject to recall could serve as a hearing officer for a city.

Therefore, the Committee is of the opinion that if a retired judge subject to recall can also serve as an arbitrator or mediator, then a part-time Child Support Hearing Officer can also serve as a mediator. However, since the hearing officer/mediator has two distinct roles (unlike the judge who might mediate his or her own case pursuant to Canon 3(B) (7) (d)) the hearing officer should carefully avoid conflict by not mediating cases, which would come before the hearing officer or vice versa.

Florida Code of Judicial Conduct; Canons 3 (B)(7)(d) and 5(F) and Application of the Code of Judicial Conduct.

Florida Judicial Ethics Advisory Committee Opinions: 95-33; 95-8; 85-3.

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, 698 So.2d 834 (Fla. 1997). However, in reviewing the recommendations of the Judicial Qualification 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 Lisa D. Kahn, Chair, Judicial Ethics Advisory Committee, Moore Justice Center, 2825 Judge Fran Jamieson Way, Viera, Florida, 32940-8006.

Participating Members: Judges, C. Kahn, L. Kahn, Patterson, Rodriguez, Rushing, Smith, Swartz, Tolton

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 inquiring judge deleted from this copy)