FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2004-16
Date of Issue: May 14, 2004

ISSUES

A. Whether, under Canon 5, a judge may serve as a trustee of a non-profit philanthropic trust, where the judge will not be asked to provide legal advice or services and the trust is not involved in significant litigation, and

B. Whether, under Canon 6, a judge can receive significant compensation from the trust for trust services.

ANSWER: Yes to Issue A.

Qualified Yes to Issue B.

FACTS

The inquiring judge has been nominated to be a trustee of a respected, national, non-profit, philanthropic trust. The trust was established in the 1970s to fund educational, charitable, and religious endeavors. The nomination follows the judge's longstanding volunteer and civic involvement with this trust, and is unconnected with the inquiring judge's position as a judge. Since its creation, the trust has been involved in only minor litigation, including one action to expand the number of trustees. The inquiring judge will not be asked to provide legal advice or services, and the time devoted to trustee activity would not interfere with the inquiring judge's duties as a judge. Trustees of this trust receive, as they always have, a fixed, pre-determined, and significant amount of compensation from the trust for their services.

DISCUSSION

Canon 5C specifically permits a judge to serve as an officer, director, trustee or non-legal advisor of an educational, religious, charitable, fraternal, sororal or civic organization. The Code restricts a judge from such service if it is likely that the organization will be engaged in proceedings that would ordinarily come before the judge or will be engaged frequently in adversary proceedings in the court of which the judge is a member. Canon 5C(3)(a). There is no indication that the trust here would involve this type of conflict.

Over the years since its creation, the Judicial Ethics Advisory Committee has received numerous inquiries regarding the application of Canon 5C(3). (For example, see Opinions 75-26, 81-7, 92-5, 92-21, 99-20 and 2003-01.) Recent public discussion of judges' extrajudicial activities has focused on the need for judges to not be isolated from their communities, but rather to become involved in a positive and ethical way. The Supreme Court recently amended the Code of Judicial Conduct and its Commentary to encourage judges to participate in extrajudicial community activities. Code of Judicial Conduct, 840 So. 2d 1023 (Fla. 2003). Thus, it is increasingly clear that the Code of Judicial Conduct permits and encourages appropriate community service by judges. The limitations in Canon 5 on a judge's governmental, civic, or charitable conduct are narrow and specific, but none appear to apply here.

The stated objectives of this non-profit, philanthropic trust and the role its trustees play in the organization do not preclude the judge's accepting the position of trustee. However, the changing nature of some organizations and of their relationship to the law makes it necessary for a judge to regularly reexamine the activities of organizations with which the judge is affiliated to determine if it is proper for the judge to continue the affiliation. Commentary, Florida Code of Judicial Conduct Canon 5C(3)(a), JEAC Opinion 2002-17.

Canon 6A specifically allows a judge to receive compensation (and reimbursement of expenses) for the quasi-judicial and extrajudicial activities permitted by the code, if the source of the payment does not give the appearance of influencing the judge in the performance of judicial duties or otherwise give the appearance of impropriety. Compensation received would, of course, be subject to the reporting provisions of Canon 6.

Numerous prior opinions of this committee have found nothing improper in a judge receiving compensation for extrajudicial activities permitted by the code. See. JEAC Ops.97-26, 92-45, 82-06, 81-03, 77-14, 76-21, 75-28, and 73-17 relating to teaching activities; Op. 73-8, relating to writing an article for a Spanish newspaper; Ops. 83-15, and 73-5 relating to performing weddings; Op. 83-2 relating to a joint business venture with an attorney.

However, Canon 6A(1) prohibits compensation for extrajudicial or quasi-judicial activities if it exceeds a reasonable amount, or if it exceeds the amount a person who is not a judge would receive for the same activity. Nothing in the code, or prior JEAC opinions, suggests any other measure for how much a judge can accept as compensation and still be within the limits imposed by the code.

The inquiry here does not describe the compensation trustees receive from this trust other than " trustees of the trust receive, as they always have, a fixed, pre-determined, and significant amount of compensation from the trust for their services."

The "fixed, predetermined" nature of this compensation for all trustees appears to satisfy the requirement of Canon 6A(1) that the compensation " not give the appearance of influencing the judge in the performance of judicial duties or otherwise give the appearance of impropriety." See Commentary, Canon 6A, "Judges must not appear to trade on the judicial position for personal advantage."

There is no bright line test in the code for reasonableness of the amount of compensation, and this inquiry does not disclose an amount. The descriptive term "significant" raises the question of "how significant?" The inquiring judge must evaluate the compensation from this trust on its unique merits, asking if it would create the appearance of impropriety, or if a reasonable person would consider this to be excessive compensation for a judge's extrajudicial time. If the answer to either of these questions is yes, the judge should decline the compensation.

As suggested by the commentary to Canon 5C(3), the changing nature of the extrajudicial activities by judges makes it necessary for the judge to regularly reexamine the appearances created by extrajudicial compensation to determine if it is proper for the judge to continue receiving the compensation or necessary to continue declining compensation.

REFERENCES

Florida Code of Judicial Conduct, Canons 5C(3), and 6A. Code of Judicial Conduct, 840 So. 2d 1023 (Fla. 2003). Florida Judicial Ethics Advisory Committee Opinions: 73-17, 73-5, 75-26, 75-28, 76-21, 77-14, 81-03, 81-07, 82-06, 83-2, 83-15, 92-05, 92-21, 92-45, 97-26, 99-20, 02-17, and 03-01.

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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 Lisa Davidson, Judge Phyllis Kotey, Judge Jose Rodriguez, Judge McFerrin Smith, III, Judge Jeffrey D. Swartz, Judge Emerson R. Thompson, Jr. Judge Richard R. Townsend, Ervin Gonzalez, Esquire, 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)