FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2004-08
Date of Issue: January 23, 2004

A JUDGE CANNOT SERVE AS A BOARD MEMBER OF THE FLORIDA WORKERS' COMPENSATION INSURANCE GUARANTY ASSOCIATION.

ISSUES

Whether a judge can serve as a board member of the Florida Worker's Compensation Insurance Guaranty Association.

ANSWER: No.

FACTS

The inquiring judge was appointed to the Florida Workers' Compensation Insurance Guaranty Association, Inc., as a practicing lawyer, and is unclear as to whether the appointment to the bench prohibits continued participation.

DISCUSSION

Section 631.902 of the Florida Statutes (2003), lists the purposes of the Florida Workers' Compensation Insurance Guaranty Association, Inc. [FWCIGA] as follows:

(1) Create a not-for-profit. . . to provide a mechanism for the payment of covered claims under chapter 440 to avoid excessive delay in payment and to avoid financial loss to claimants because of the insolvency of a member insurer.

(2) Assist in the detection and prevention of insurer insolvencies.

(3) Allocate the cost of such protection among the insurers.

(4) Provide for the prompt payment by the corporation of workers' compensation claims incurred by insolvent insurers.

Thus, the FWCIGA is involved in detecting and preventing insurer insolvencies, allocating the cost of protection among insurers, and paying claims of insolvent insurers.

Canon 4D provides in part:

A judge may serve as a member, officer, director, trustee or non-legal advisor of an organization or governmental agency devoted to the improvement of the law, the legal system or the administration of justice, subject to the following limitations and the other requirements of this Code.

The FWCIGA is a public corporation, created by statute for the express purpose of participating with the Department of Financcial Services. It is responsible for important and laudable activities. Arguably, it is involved in the administration of justice. Nevertheless, these activities involve the carrying out of executive functions in administering the insurance code. This creates a conflict with the judge's adjudicatory responsibilities, runs afoul of the Canons of Judicial Conduct, and must be avoided.

Canon 5C(2) provides:

A judge shall not accept appointment to a governmental committee or commission or other governmental position that is concerned with issues of fact or policy on matters other than the improvement of the law, the legal system or the administration of justice.

The commentary to this provision further states:

Section 5C(2) prohibits a judge from accepting any governmental position except one relating to the law, legal system or administration of justice as authorized by Section 4D. The appropriateness of accepting extrajudicial assignments must be assessed in light of the demands on judicial resources created by crowded dockets and the need to protect the courts from involvement in extrajudicial matters that may prove to be controversial. Judges should not accept governmental appointments that are likely to interfere with the effectiveness and independence of the judiciary.

This canon also prevents the judge from serving.

In Fla. JEAC Op. 01-16, this committee decided that a judge could not serve as an appointed member of a commission of a municipal government charged with fiscal oversight of government funds. See Fla. JEAC Op. 01-16. In the opinion, we noted that the commission involved itself in the "granting of government funds and overseeing their use." We stated that such a function is a "clear responsibility of the executive branch, no different than the operation of the police and fire departments." Id.

In this instance, the judge, as a board member, would be involved in decisions concerning the payment of claims, and other actions to protect against the solvency of insurers subject to the FWCIGA Act. This arguably infringes on executive branch functions.

This committee has also advised inquiring judges not to participate as members of a county fire board, an advisory board that would oversee a federal block grant, or an advisory commission on alcohol and tobacco. See Fla. JEAC Ops. 99-11, 97-24, and 94-19. These decisions have hinged upon the potential for conflict for the judge.

We acknowledge the important work of the FWCIGA, but believe that its relation to the administration of justice is surpassed by exposing the judge to infringement on the duties of the executive branch and the creation of unnecessary "conflict" for the judge. We therefore answer the inquiry in the negative.

REFERENCES

631.901, Fla. Stat. (2003).

Fla. Code Jud. Conduct, Canons 4D and 5C.

Fla. Jud. Ethics Advisory Com Ops. 01-16, 99-11, 97-24, and 94-19.

_____________

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 Richard R. Townsend, Acting Chair, Judicial Ethics Advisory Committee, Post Office Box 1018, Green Cove Springs, Florida 32043.

Participating Members:
Judge Robert Benton, Judge Karen Cole, Judge Lisa Davidson, Judge Phyllis Kotey, Judge Melanie May, Judge McFerrin Smith, III, Judge Emerson R. Thompson, Jr., Judge Richard R. Townsend, and Marjorie Gadarian Graham, Esquire.


Copies furnished to:
Justice Peggy Quince
Thomas D. Hall, Clerk of Supreme Court
All Committee Members
Executive Director of the J.Q.C.
Office of the State Courts Administrator
(Name of inquiring judge deleted from this copy)