FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2004-19
Date of Issue: June 14, 2004

ISSUES

Whether a judge may participate as a member of an ad hoc team which will interview the final candidates for the County Attorney position in the judge's county.

ANSWER: No.

FACTS

The inquiring judge has been invited to participate as member of an ad hoc team which will interview the final candidates for the County Attorney position in the judge's county. As a team member, the judge would ask questions of the candidates. The team would provide the county administrator with observations and impressions of the candidate, and the county administrator would make the final hiring decision.

DISCUSSION

Canon 5(C)(1) states, in material part: "A judge shall not appear at a public hearing before, or otherwise consult with, an executive or legislative body or official except on matters concerning the law, the legal system or the administration of justice...." (Emphasis supplied.)

Canon 5(C)(2) of the Code of Judicial Conduct states, in material part: "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." See Opinion 85-10 of the Committee on Standards of Conduct Governing Judges (the predecessor committee to the Judicial Ethics Advisory Committee), in which the committee indicated that this canon prohibited a judge from accepting appointment to a district planning council which would assess and develop a plan to meet the alcohol, drug abuse, and mental health service needs of the then-Department of Health and Rehabilitative Services. The committee explained that such a committee did not fall within the purview of the "legal system or the administration of justice."

In Opinion 81-6 of the Committee on Standards of Conduct Governing Judges, the committee expressed the opinion that a judge could not properly serve on the state's Parole and Probation Commission. The committee noted, in language which applies equally to the present query: "These appointments are political in nature and would involve the judge in the political process of the Executive Department, which could prove to be controversial." See also Opinion 82-11, in which the Committee on Standards of Conduct Governing Judges expressed the opinion that a judge could not ethically serve on the mayor's charter revision committee. It observed: "Local politics are more virulent and deadly than state politics....[W]hile the Canons permit service on a committee to draft or revise a model municipal or county charter, propose legislation or revise the Constitution, a judge makes a mistake doing so when it will immediately affect the guy across the hall, as opposed to some inchoate officeholder three counties removed. The city manager who finds himself serving at the pleasure of the mayor and city commissioner, and shorn of his power, will always conjure up alliances and motivations which reflect [badly] on the judge's impartiality."

For these reasons, the Committee concludes that the inquiring judge may not ethically participate in the ad hoc committee that will advise the local County Administrator by commenting favorably or adversely on candidates for the public office of county attorney.

REFERENCES

Canons 2 and 5, Code of Judicial Conduct
Fla. JEAC Op. 81-6, 82-11, and 85-10.

_____________

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 Karen Cole, Judge Lisa Davidson, Judge Phyllis Kotey, Judge Melanie May, Judge McFerrin Smith, III, 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)