FLORIDA SUPREME COURT

JUDICIAL ETHICS ADVISORY COMMITTEE

Amended Opinion Number: 99-10

Date of Issue: March 31, 1999

WHETHER CANON 2 or 3C(4) IS VIOLATED IF A JUDGE'S SPOUSE IS HIRED/APPOINTED AS A COURT PROGRAM SPECIALIST IN THE SAME DIVISION AS THE JUDGE WHEN THE JUDGE RECUSES HIMSELF FROM VOTING ON THE INDIVIDUAL TO FILL THE POSITION?


ISSUES

WHETHER CANON 3C(4) IS VIOLATED IF A JUDGE'S SPOUSE IS HIRED/APPOINTED AS A Court PROGRAM SPECIALIST IN THE SAME DIVISION AS THE JUDGE WHEN THE JUDGE RECUSES HIMSELF FROM VOTING ON THE INDIVIDUAL TO FILL THE POSITION?
ANSWER: No.

WHETHER THE REMAINING JUDGES IN THE SAME CIRCUIT WOULD BE IN VIOLATION OF THE JUDICIAL CANONS TO VOTE IN FAVOR OF ANOTHER JUDGE'S SPOUSE WHEN THE PARTICULAR JUDGE RECUSES HIMSELF FROM SUCH VOTING?
ANSWER: No.

WHETHER THE APPEARANCE OF IMPROPRIETY WOULD EXIST IN VIOLATION OF CANON 2? ANSWER: Yes.

FACTS

The inquiring judge asks whether the appearance of nepotism would be alleviated if the particular judge recused himself from voting on the individual to fill the position that his wife may be seeking to fill. The wife may be seeking a position as a court program specialist for the family law division. The particular judge is currently sitting in the family law division. The practice for hiring in the circuit is for the judges to vote and consider in a meeting all hiring decisions.

The inquiring judge also asks whether the remaining judges would be in violation of the Judicial Canons to vote in favor of the particular judge's wife when this particular judge has recused himself from the voting.


DISCUSSION

Canon 3 of the Code of Judicial Conduct is entitled "A Judge Shall Perform the Duties of Judicial Office Impartially and Diligently." Canon 3C(4) of the Code states:

A judge shall not make unnecessary appointments. A judge shall exercise the power of appointment impartially and on the basis of merit. A judge shall avoid nepotism and favoritism. A judge shall not approve compensation of appointees beyond the fair value of services rendered. (Emphasis added).

The Commentary to Canon 3C(4) explains, by example, the meaning of the Section. It provides:

Appointees of a judge include assigned counsel, officials such as referees, commissioners, special masters, receivers, mediators, arbitrators, and guardians and personnel such as clerks, secretaries, and bailiffs. Consent by the parties to an appointment or an award of compensation does not relieve the judge of the obligation prescribed by Section 3C(4). See also Fla.Stat. 112.3135 (1991).

In Opinion 82-13, a brief opinion, the Committee found that a judge appointing a relative to serve as guardian ad litem, receiver, or a master would violate Canon 3B(4) [now Canon 3C(4)]. In Opinion 98-4, the Committee found that a judge would not be engaged in ethically prohibited nepotism if he or she appointed or employed his or her niece-in-law as a judicial assistant. The Committee noted that the Commentary to Canon 3C(4) referred to §112.3135, Florida Statutes, and used this section in its analysis. See Opinion 98-4.

Section 112.3135, Florida Statutes, is Florida's anti-nepotism law.1 This statute applies to the judicial branch. See §112.3135(1)(a), Fla. Stat. (1999). It states:

A public official may not appoint, employ, promote, or advance, or advocate for appointment, employment, promotion, or advancement, in or to a position in the agency in which the official is serving or over which the official exercises jurisdiction or control any individual who is a relative of the public official.

§112.3135(2)(a), Fla. Stat. (1999). A wife is a relative under this section. Id. at (1)(d).

This statute is a civil statute of a penal nature. See City of Miami Beach v. Galbut, 626 So. 2d 192, 194 (Fla. 1993). The Florida Supreme Court, in Galbut, construed Florida's anti-nepotism law so as not to create an unnecessary barrier to public service by otherwise qualified individuals. Id. at 195. The Supreme Court found that the anti-nepotism statute was not violated when a relative of a city commissioner was reappointed by a five-sevenths vote of the city commission, as long as the related city commissioner abstained from the voting and in no way advocated the reappointment of his relative. Id. The court stated that the statute is clear and unambiguous that only overt actions by a public official resulting in appointment of that official's relative is prohibited. Id. at 193-94.

The same situation as in Galbut is presented in the judge's inquiry here. Therefore, the Committee finds that if the particular judge abstained from voting and in no way advocated the hiring of his wife, the appearance of nepotism would be avoided and no violation of Canon 3C(4) would exist.

Further, the Committee finds that the remaining judges would not be in violation of the Canon 3C(4) to vote on this application when this judge/spouse has recused himself from the voting, as long as the appointment is impartial and based on the wife's merit rather than favoritism or her relationship to the particular judge. See Opinion 98-4; Fla. Code Jud. Conduct, Canon 3C(4).

However, the Committee is of the opinion that, while no violation of Canon 3C(4) would exist, the judges, in hiring a fellow judge's spouse for this position, would violate the spirit of Canon 2 - A Judge Shall Avoid Impropriety And The Appearance Of Impropriety In All Of The Judge's Activities. The appearance of hiring favoritism would exist in the mind of the public and other candidates for the position, and the opponent of a pro se litigant who was assisted by the presiding judge's spouse could reasonably be expected to fear the effect of that assistance on the judge.


The Committee is mindful of the Supreme Court's policy objectives in Galbut to avoid creating an unnecessary barrier to public service by otherwise qualified individuals. However, the facts of this inquiry are unique and require a special examination and application of Canon 2. It is for those reasons that the Committee answers the last question in the affirmative.


REFERENCES

§112.3135, Florida Statutes (1999).

Florida Code of Judicial Conduct, Canons 3 and 3C(4).

Florida Judicial Ethics Advisory Committee Opinions: 82-13 and 98-4.

City of Miami Beach v. Galbut, 626 So. 2d 192 (Fla. 1993).


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, Harry T. and Harriette V. Moore Justice Center, 2825 Judge Fran Jamieson Way, Viera, Florida, 32940-8006.



Participating Members: Judges Dell, C. Kahn, Patterson, Rodriquez, Rushing, Smith, Swartz, 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 inquiring judge deleted from this copy)


1 Several members of the Committee expressed the concern that the questions posed in this inquiry might constitute questions of law, rather than questions of judicial ethics. Therefore, the judges involved might consider asking for an Attorney General's Opinion. However, since the Commentary to Canon 3C(4) refers to 112.3135, Florida Statutes, the Committee has elected to answer the inquiry as an ethics question.

[Editors Note] The sole change here occurs in the names of the Participating Members. Judge Cardonne did not participate in the Committee's decision rendered in Opinion 99-10.