FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2002-02
Date of Issue: Jaunary 24, 2002

SPOUSE OF ADMINISTRATIVE JUDGE OF FAMILY DIVISION EMPLOYED AS A CASE MANAGER IN THE FAMILY DIVISION

ISSUES

1. Is it a violation of the Code of Judicial Conduct for the spouse of the Administrative Judge of the Family Division to be employed by the Court Administrator's Office as case manager in the Family Law Division? Answer: Yes, according to a majority of committee consisting of six members. Four members of the committee, a minority, find that it is not a violation.

2. If a violation exists, can it be avoided if the inquiring judge is not the Administrative Judge of the Family Law Division? Answer: No, according to a majority of the committee consisting of six members. Four members of the committee, a minority, are of the opinion that a violation does not exist.

3. Is the employment by the Court Administrator's Office of the judge's spouse as the case manager in the Family Law Division a violation of section 112.3135 Florida Statutes (2001)? Answer: The Committee declines to respond to this question. The question seeks an interpretation of a statute which calls for a legal opinion which is beyond the jurisdiction of this committee's authority.

FACTS

The inquiring judge is the Administrative Judge of the Family Law Division. The judge is one of two and a half judges that sit in the Family Law Division. As the Administrative Judge of Family Law Division, the judge is responsible for solving problems and the entry of orders from the clerk's office. Last year, the Court Administrator's Office employed the judge's spouse as a case manager in the Family Law Division. Since 1997, the judge's spouse has worked for the Court Administrator's Office in the Family Law Division. The judge's spouse has never worked in the inquiring judge's division. As case manager in the Family Law Division, the judge's spouse is responsible for coordinating cases in the division and scheduling cases for mediation, final hearing and other court related events. Therefore, she will perform work and make decisions that will affect the inquiring judge's division. The inquiring judge indicates that he does not and will not have any supervisory control or influence over his spouse. The inquiring judge further indicated that he does not or will not have decision-making authority regarding the promotion or termination of the spouse.

DISCUSSION

A review of past opinions regarding employment of a spouse and other relatives indicates that relatives' employment can create an ethical violation for the judge if the employment is sufficiently involved or related to the particular court or its operation. In Opinion 84/7, the employment of the judge's spouse as a field representative with the State Treasurer and Insurance Commissioner's office was found not to be sufficiently involved or related to the operation of the court. Given that there was no history of regular involvement between the judge's court and the spouse's employment, the Committee opined that should a case arise in which the spouse is placed in a position of interest with reference to any matter coming before the judge, the judge could take appropriate action including recusal or disqualification, if necessary.

However, neither recusal nor disqualification is an issue of concern for the inquiring judge. The pivotal issue is the appearance of impropriety that can occur as a result of the fact that the spouse's employment as case manager is directly involved and related to the family law division and its operation. The inquiring judge admitted that the spouse, in her employment, will perform work and make decisions that will affect the judge's divisions. Although the inquiring judge indicates that he has and will have no supervisory control or decision making authority over the spouse's employment, promotion or termination, it is unclear how an Administrative Judge of the Family Law Division would have no input regarding the duties and performance of a case manager in the Family Law Division.

Canon 1, 2 and 2A apply to these facts. Canon 1 states:

A judge shall uphold the integrity and independence of the judiciary (emphasis added).

The integrity and independence of a judge depends on his or her acting without fear or favor. Public confidence may be diminished if it is felt that the judge is acting with favor in regard to the work and decisions of his case manager spouse. Real or not, the appearance of impropriety becomes an important issue. Canon 2 states:

A judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities. (emphasis added).

Canon 2A reads in part:

A. A judge shall . . . act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (emphasis added).

Opinions: 01/05, 90/23, 87/8, 84/2, 84/7, 84/15, and 78/21 provide some guidance regarding avoiding the appearance of impropriety. The test for appearance of impropriety is whether the conduct identified (i.e. the judge's spouse as a case manager in the division in which the judge sits as administrative judge) creates in reasonable minds a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired.

It is unclear whether removal of the inquiring judge as Administrative Judge would alleviate any question of independence and the appearances of impropriety. Clearly, such removal would and should limit the likelihood that the inquiring judge's spouse as case manager would necessarily be sufficiently involved or related to the operation of the court in the inquiring judge's division, if the spouse is not assigned to that division. However, as case manager for the Family Law Division, it is doubtful that the coordination and scheduling would not be sufficiently related to the operation of the court. Therefore, some reservation may exist as to whether the relationship remains sufficiently involved since the judge admits that the spouse's work and decisions will affect the judge's division. One member of the committee specifically finds, "that it is the judge's service in the Family Law Division that causes the problem and not merely his service as the administrative judge."

A minority of four responding members of the committee disagree with the view taken by the majority on the inquiring judge's first two questions. As aptly stated by one of the dissenters:

I find nothing in the Code that would preclude the spouse from continuing the employment, if it is otherwise authorized pursuant to Florida law. If a spouse is a Judge's Judicial Assistant would his or her degree of loyalty be any different than having a non-spouse as a Judicial Assistant? Staff Attorney? If the Family Law Administrative Judge were to appoint the Judge's Judicial Assistant as case manager for [the] Family Law division, would this create ethical conflict? I think not. This person's loyalty may be even stronger than that of a spouse! It seems to me that the described situation has the potential of creating a personal problem, not an ethical problem. Since Court Administration works at the pleasure of the judiciary, and the Judges are at the top of the pyramid of the judiciary and ultimately responsible for the conduct of its employees, I do not see an appearance of impropriety.

Finally, in Opinion 78/21, Chapter 112 Florida Statutes was determined to have no applicability to the judiciary. In that opinion and in Opinion 88/10, the Committee acknowledged that opinions that seek interpretation of this statute are more appropriately defined as requests for legal opinion and are beyond the jurisdiction of this committee's authority to give ethical opinions.

REFERENCES

Canons 1, 2, and 2A

Opinions: 01/05, 90/23, 88/10, 87/8, 84/2, 84/7, 84/15, 78/21

Section 112.3135 Florida Statutes (2001)

_____________

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 Scott J. Silverman, Chairman, Judicial Ethics Advisory Committee, The Richard E. Gerstein Justice Building, 1351 NW 12th St #712, Miami, FL 33125

Participating Members: Judges Davidson, Kahn, Kotey, Levy, Silverman, Smith, Swartz, Thompson, Townsend and Attorney Graham

Copies furnished to:
Chief 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)