Opinion 77-3

January 14, 1977

Re: Canon 5C

Dear Judge:


This is in reply to your recent letter inquiring whether it is permissible for a judge, under the Code of Judicial conduct, to continue to serve as director of certain banks until December 31, 1977.

You indicate that you were recently elected to the appellate bench, having assumed office on January 4, 1977. You further indicate that you have been involved in the banking business for over twenty years having, with two close friends, founded two banks and having served on the board of directors of those banks. You also indicate that you are one of five major stockholders in each of these banks.

You advise that you are currently serving as a director of the two banks and you are vitally interested in terminating your active participation in a manner best designated to protect and safeguard your interests. You further state that the board of directors of each of the banks together with the management have expressed the view that it would be in your personal interest and that of the banks if you could continue your position as director until December 31, 1977.

The Committee has reviewed your inquiry and a majority (7-2) is of the opinion that the language of Canon 5C(1)(2) prohibits a judge from serving or continuing to serve as a director of a bank. In particular, Canon 5C(1) and (2) provide:

(1) A judge should refrain from financial and business dealings that tend to reflect adversely on his impartiality, interfere with the proper performance of his judicial duties, exploit his judicial position, or involve him in frequent transactions with lawyers or persons likely to come before the court on which he serves.

(2) Subject to the requirements of subsection (1), a judge may hold and manage investments, including real estate, and engage in other remunerative activity, but should not serve as an officer, director, manager, advisor, or employee of any business. (emphasis added)

The aforementioned Canon does not contain any time guidelines nor any allowance of a grace period. It was the majority view that the Code prohibits a judge from serving as a director after he assumes judicial office. Three members of the majority are of the view that a judge would be required to resign as a director on or before the date he assumes the office of judge.

It should be pointed out that the Code does not contain an "effective date of compliance" section. However, it is clear from a reading of that section that it is applicable only to a "person who holds judicial office on the date this Code becomes effective" (which was September 30, 1973). 281 So.2d 21. Moreover, except for certain specific circumstances not factually applicable to your inquiry, i.e. operation of a family business or fiduciary to an estate, an incumbent judge would have had until September 30, 1975, within which to be in strict compliance therewith. The conclusion herein is consistent with the Committee's recent opinions 75-27, 75-24, 73-13 and 73 12.

The foregoing reflects the intent of the framers of the Code to draw a distinction between persons holding office on the date the Code becomes effective and persons holding office after the date the Code becomes effective insofar as time guidelines are concerned. Apparently the framers must have felt that a person seeking judgeship, either by election or selection, would have sufficient time prior thereto or prior to assuming office to have taken the necessary steps to be in compliance with the Code, while those who were incumbents by the circumstance of their incumbency would have had to be afforded a period of adjustment.

The minority had different views as to the appropriate period of adjustment. One member was of the view that a reasonable period of adjustment would be not later than July 1, 1977; and one member was of the view that a newly elected judge should be permitted until January 3, 1979 to comply with the Code.

The factual circumstances reflected in your inquiry indicate that it might be appropriate for the Supreme Court of Florida to review the Code for possible amendment or revision with respect to the date of compliance of newly selected or elected judges. Until such time, however, the Committee's determination must be guided by the intent of the Canons as reflected by the express language and the necessary implications thereof.


We appreciate your inquiry and trust the foregoing will be of assistance to you.

Sincerely,

Gerald Mager

Chairman, Committee on Standards of Conduct Governing Judges

GM/cs

Participating members: Boyer, Carlisle, Hewitt, Haverfield, Murphee, O'Connell, Sample and Stephenson