FLORIDA SUPREME COURT

JUDICIAL ETHICS ADVISORY COMMITTEE

Opinion Number: 00-33
Date of Issue: October 20, 2000

ISSUES

WHETHER A JUDGE MAY HIRE A CURRENT CITY COUNCILMAN AS A STAFF ATTORNEY.

ANSWER: No.

WHETHER THE STAFF ATTORNEY CANDIDATE'S STATUS AS AN ELECTED OFFICIAL PRECLUDES THE CANDIDATE FROM ACCEPTING THE POSITION BASED UPON THE PERSONNEL REGULATION FOR THE FLORIDA STATE COURTS SYSTEM, SECTION 5.03.4.A.

ANSWER: This question seeks an answer that exceeds the Committee's mandate under the terms of its enabling order.

FACTS

The inquiring judge is charged with the duty of hiring a staff attorney. The judge inquires whether he is ethically permitted to hire a candidate for a staff attorney's position who is also an elected city councilman. The inquiring judge asks whether the city councilman would be precluded from employment as a staff attorney because he will be required to campaign on a regular basis. The inquiring judge asks whether the candidate's status as an elected official precludes him from being hired as a staff attorney.

DISCUSSION

Appointments by a judge are governed by Canon 3C(4) of the Florida Code of Judicial Conduct. Under this provision, a judge must exercise the power of appointment impartially and on the basis of merit. Canon 3C(4) does not prohibit employment of an elected city councilman as a staff attorney. It is incumbent on judges, however, to diligently monitor actions of staff that might bring into question the independence of the judiciary and the appearance of impropriety. See Fla. Code Jud. Conduct, Canon 1 and Canon 2. Canon 3C(2) mandates that a judge require staff, court officials, and others subject to the judge's direction and control to observe the standards of fidelity and diligence that apply to the judge.

This Committee has rendered several opinions that hold that staff should not comport themselves in a manner that is forbidden to a judge. In Opinion 94-30, the Committee found that a court administrator could not become involved in fund-raising to help to fund a court system project to create and produce a Juvenile Justice Education video to be used in public schools. The Committee stated that if a judge cannot engage in the conduct, neither can the court administrator, because the court administrator's office is under the "direction and control" of the judiciary.

In Opinion 97-3, the Committee found that a judicial staff attorney is prohibited from writing a character reference for a criminal pre-sentence investigation report. The Committee noted that judges are prohibited from initiating communication of information to a sentencing judge, probation officer, or corrections officer. "Because an activity such as sentencing in a criminal case is so integrally tied to the performance of judicial responsibilities, the Committee does not believe a law clerk could escape his own identity should he decide to write such a letter, even if the letter is not accompanied by the law clerk's title, nor makes any reference to the law clerk's position with the court." The Committee reasoned that although the Code of Judicial Conduct does not expressly subject law clerks to its provisions, it does indirectly apply to them. It found that a "law clerk who willfully or negligently violates an applicable standard of fidelity or diligence is guilty of a transgression by acting in such a way as to thwart the judge's opportunity to exercise supervision."

Judicial staff is not precluded from doing on their own time activities that they could not do during their employment. For example, a staff attorney may participate in election campaigns as long as the activity is conducted on the employee's personal time, entirely independent of the judge and without reference to the judge. See Fla. JEAC Op. 93-45.

Like judges, however, an elected city council member is "on duty" twenty-four hours a day, seven days a week. There would never be a time that this proposed staff attorney would not also be an "elected" official. Hiring an elected city council person is rife with the appearance of impropriety. Elected officials must state their position on issues. Those very issues may come before the court. Elected officials fund raise for their campaigns. Are lawyers and litigants going to feel compelled to contribute to the staff attorney/elected official's campaign because he/she often has direct input into judicial decisions? Finally, elected officials are in contact with their constituents regarding issues that are of interest to the constituents. Often the public official is "lobbied" by a special interest group or an interested constituent on an issue. The public official's role is to take this input into consideration in his/her decision making. Where will the line be drawn between those persons lobbying the elected official about decisions he/she is making as an elected official, and lobbying that same elected official/staff attorney because a judge that the elected official/staff attorney is working for is deciding issues in which a lawyer or a litigant or the public has an interest?

It would be impossible for a judge and the staff attorney to envision and implement all the necessary "fire walls" to prevent either actual impropriety or the appearance of impropriety that would result in hiring an elected city council person. It would be a continuous "minefield" for the judge to negotiate, and in all probability the judge would fail. To uphold the independence of the judiciary and to avoid the appearance of impropriety, judicial law staff should not also be elected public officials.

Two Committee members take a dissenting view. These members note that prior opinions "allow law clerks, judicial assistants and judicial spouses to participate in fund raising activities . . . as long as they do not allude to their judicial ties and the political activities do not occur during business hours." See Fla. JEAC Ops. 91-23, 93-45 and 98-3. They also note that the Committee has also recognized implicitly that judicial spouses do in fact hold judicial office and would therefore be involved in political activities. E.g. Fla. JEAC Op. 98-3. The dissenting members conclude that refusal to hire a law clerk because the clerk holds an elective office seems inconsistent with prior opinions that allow spouses, judicial assistants and law clerks to be actively involved in partisan politics. These members point particularly to opinion 93-45 in which this Committee quoted from a letter from the Florida Supreme Court that had resulted from that Court's conference of September 8, 1992. The Court wrote:

It is the unanimous opinion of the Court that a judicial assistant or other employee subject to the judge's direction or control may not be prohibited from engaging in partisan political activity during personal time, provided such activity is concluded entirely independent of the judge and without reference to the judge [or] judge's office. (emphasis supplied.)

The dissenting members recognize that a judge who hired an elected official would have to develop guidelines about political activities at work, fund-raising, and using vacation or flex time to campaign or to conduct political business. They recognize that such would be onerous and burdensome, but concludes that the difficulty in implementing the policy is not really the issue. Accordingly, these members would see no ethical prohibition that would prevent a judge from hiring a current city councilman as a staff attorney.

Regarding the second inquiry, the mandate establishing this Committee states, "The purpose of the Committee shall be to render written advisory opinions to inquiring judges concerning the propriety of contemplated judicial and non-judicial conduct." Petition of the Committee on Standards of Conduct Governing Judges, 698 So. 2d 834 (Fla. 1997) (emphasis added). This second inquiry calls for an opinion that addresses the conduct of a person who is not a judge, judicial candidate, or quasi-judicial officer. The request also would require that this Committee render a legal opinion based upon the Personnel Regulation Manual for the Florida State Courts System, Section 5.03.4.A, which is beyond the scope of this Committee's authority. Accordingly, this Committee respectfully declines to respond to this inquiry.

REFERENCES

Petition of the Committee on Standards of Conduct Governing Judges, 698 So. 2d 834 (Fla. 1997).

Florida Code of Judicial Conduct: Canon 1, Canon 2, Canon 3C(2), and Canon 3C(4).

Florida Judicial Ethics Advisory Committee Opinions: 97-3, 94-30, 93-45.

_____________

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 Judge Charles J. Kahn, Jr., Chairman, Judicial Ethics Advisory Committee, 301 Martin Luther King, Jr., Blvd., Tallahassee, FL 32399-1850

Participating Members:
Judge Charles J. Kahn, Jr.
Judge Lisa D. Kahn
Judge Phyllis D. Kotey
Judge David Levy
Judge Scott J. Silverman
Judge C. McFerrin Smith, III
Judge Jeffrey D. Swartz
Judge Emerson Thompson
Marjorie Gadarian Graham

Copies furnished to:
Justice Peggy Quince
All Committee Members
All Members of the J.Q.C.
Office of the State Courts Administrator (Name of inquiring judge deleted from this copy)