FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2005-07
Date of Issue: March 14, 2005

ISSUES

Whether a judge can participate in fund-raising activities at the judge’s child’s school sporting events?

ANSWER: Yes.

Whether the same rules that govern fund-raising for a child’s school sporting events apply to a judge’s fund-raising with a civic organization?

ANSWER: Yes.

FACTS

The inquiring judge “would like to know the Committee’s opinion regarding a sitting judge’s ability to participate in fund-raising activities for the judge’s children, specifically with regards to a traditional ‘hotdog’ and ‘hamburger’ stand at school sporting events.” The inquiring judge asks further whether “the same rules govern civic organizations that have booths in the public at such things as spring arts festivals, etc.”

DISCUSSION

As we indicated when we addressed similar questions in Florida Judicial Ethics Advisory Committee Opinion 00-17, several provisions in the canons bear on the questions the inquiring judge poses, notably those found in Canons 2(B), 5(A) and 5(C) of the Code of Judicial Conduct. These provisions and the principles they embody apply across the board to educational, charitable and civic organizations, not just to fund-raising at school sporting events.

Canon 2(B) of the Code of Judicial Conduct teaches that a “judge shall not lend the prestige of judicial office to advance the private interests of the judge or others.” While “judges are encouraged to participate in extrajudicial community activities,” according to the commentary to Canon 5(A), a judge must conduct extrajudicial activities so that they do not “demean the judicial office; or . . . interfere with the proper performance of judicial duties.” Fla. Code of Jud. Conduct, Canon 5(A)(2) and (3).

A judge may serve as part of an educational, charitable or civic organization and “may assist such an organization in planning fund-raising . . . , but shall not personally participate in the solicitation of funds or other fund-raising activities,” with an exception not pertinent here. Fla. Code Jud. Conduct, Canon 5(C)(3)(b)(I). A judge “shall not use or permit the use of the prestige of judicial office for fund-raising.” Fla. Code of Jud. Conduct, Canon 5(C)(3)(b)(iii).

The Committee has said that a judge cannot be a model in a charity fashion show, Fla. JEAC Op. 88-31, or even participate in such an event “by announcing the winning tickets and describing the items won.” Fla. JEAC Op. 98-32. We have also said that a judge cannot solicit the donation of coats and gloves to be distributed by the Salvation Army, Fla. JEAC Op. 92-38, ring a bell at a Salvation Army kettle (although disguised as a holiday character), Fla. JEAC Op. 04-36, or play in an exhibition basketball game intended to raise money for scholarships. Fla. JEAC Op. 88-05. A judge cannot participate in fund-raising if the judge’s participation “lends the prestige of the office and is an implicit solicitation of funds.” Fla. JEAC Op. 00-17.

On the other hand, the Committee has found no ethical prohibition against participating in a Habitat for Humanity build, Fla. JEAC Op. 96-27, or helping referee and checking press credentials at a fund-raising sports event, Fla. JEAC Op. 89-19, where the public was given no indication that the judges involved held judicial office. Fla. JEAC Op. 75-11. A judge may help plan fund-raising activities for educational, charitable or civic organizations, Fla. JEAC Op. 04-36, decorate a hall where a fund-raising event is to be held, donate items to be auctioned for charity, and help value such items. Fla. JEAC Op. 01-09. In general, a judge may help with fund-raising activities for an educational, charitable or civic organization, so long as the prestige of judicial office is not used to advance the organization’s interests.

When we last addressed what a judge could ethically do in connection with a school concession stand, we said:

A judge cannot work in his/her child’s school fund-raising activities if the job would entail active solicitation of funds or selling goods. However, a judge can participate in such fund-raising events where the judge is not identified as a judge, and the judge’s participation is more in the realm of physically providing help to the event.

Fla. JEAC Op. 00-17. A judge can help prepare food, but ought not, we then said, take money directly from the public. We continue to believe that a judge would do well to aspire to participate in community activities as something other than a cashier, and that a judge working at a concession stand should not identify herself or himself as such. On the other hand, we are no longer prepared to say that a judge who is flipping hamburgers or putting mustard on hot dogs cannot fill in for a co-volunteer who must step away from the cashier’s duties momentarily. In this connection, we believe there is an important distinction between selling--at a reasonable price--widely sold items, and soliciting charitable contributions.

A minority of the committee suggests that there should be a comprehensive discussion regarding the Code and its Commentary as they relate to fundraising. Although this opinion is consistent with the Code, there is a perception that the Code itself is out of touch with the reality of community perception and judicial politics, especially in light of recent amendments to the Code which encourage participation in extrajudicial activities. It is strongly recommended that this issue be widely debated when the final ABA Revision of the Model Code of Judicial Conduct is disseminated for comment.

REFERENCES

Code of Judicial Conduct: Canons 2(B), 5(A), 5(A)(2)&(3) and 5(C), 5(C)(3)(b)(I) & (iii), and Commentary to 5(A).

Fla. JEAC Ops: 75-11, 88-05, 88-31, 89-19, 92-38, 96-27, 98-32, 00-17, 01-09, and 04-36.

_____________

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 Melanie May, Judge Michael Raiden, Judge Jose Rodriguez, Judge McFerrin Smith, III, Judge Emerson R. Thompson, Jr. Judge Richard R. Townsend, Judge Dorothy Vacccaro, 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)