FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2006-29
Date of Issue: December 1, 2006

ISSUES

May a judge join the Florida Highway Patrol Auxiliary (FHPA) and serve in a purely administrative capacity with the auxiliary?

ANSWER: No.

FACTS

The inquiring judge was appointed to the bench approximately a year ago. Prior to appointment to the bench, the inquiring judge had initiated procedures to become a member of the Florida Highway Patrol Auxiliary (FHPA). The inquiring judge asks whether it is permissible for the judge to join the FHPA if the judge restricts participation to purely administrative matters. The inquiring judge does not advise what those administrative duties would be. But, the inquiring judge would render these administrative services outside of the geographic confines of the circuit in which the inquiring judge presides.

According to its website (to which the inquiring judge refers in posing the inquiry), the FHPA is a diverse group of community oriented men and women who donate their time and efforts to make the difficult task of law enforcement safer and more effective for the troopers and citizens traveling our highways. The FHPA is authorized by the Florida Legislature. Pursuant to the provisions of Section 963.10(8), Florida Statutes, Auxiliary Officers on patrol have authority to arrest and perform law enforcement functions.

The FHPA website specifies as follows:

About the FHPA
The Florida Highway Patrol Auxiliary is . . .
          A professionally trained, all volunteer law enforcement organization dedicated to providing direct assistance and operational support to the Florida Highway Patrol.
          Responsible for promoting public safety for the citizens of and the visitors to the State of Florida.
Since 1957, Auxiliary Troopers have assisted the Florida Highway Patrol in the performance of its daily duties which include:
          Patrolling the streets and highways of the state.
          Providing timely assistance to disabled motorists.
          Participating in vehicle equipment and license checkpoints.
          Operating the Florida Highway Patrol Breath Alcohol Testing Unit (BAT mobile).
          Participating in specialized details.
          Responding to natural disasters and other emergency situations.
Auxiliary Trooper candidates must undergo a rigorous hiring process and training similar to a full time state trooper.
Presently, we are fully equipped in the same manner as our brother State Troopers. Initially, you will ride with a trooper to provide “second officer” backup.
After additional experience and training, you may be approved for “Limited Scope Patrol” (L.S.P.). L.S.P. certified officers patrol solo in a marked patrol unit to provide assistance to motorists and troopers.

DISCUSSION

Canon 5A states that “[a] judge shall conduct all of the judge’s extra-judicial activities so that they do not: (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; (2) demean the judicial office; or (3) interfere with the proper performance of judicial duties.” See also Canon 4A (relating to quasi-judicial activities).

In JEAC Opinion 00-04, the Committee found that a special hearing officer, who was subject to the Code of Judicial Conduct, could not attend the local police department’s Citizens Police Academy, because to do so would be a violation of the Code of Judicial Conduct in that it would create an appearance of impropriety.  Membership in the FHPA would create a similar appearance of impropriety.

In JEAC Opinion 01-03, the Committee found that a judge could not serve as a spokesperson in Department of Highway Safety advertising that would advocate seatbelt use. The Committee opined that to do so would create the appearance of impropriety and would cast reasonable doubt on the judge’s capacity to act impartially as a judge in cases where Highway Patrol officers appear as witnesses or where the Department of Highway Safety is involved as a litigant. The same considerations are applicable to this inquiry.

Membership and work in an administrative capacity for the FHPA would cast reasonable doubt on the judge’s capacity to act impartially as a judge and interfere with the proper performance of judicial duties. Specifically, the inquiring judge would be subject to disqualification in any case involving the Florida Highway Patrol or the FHPA.  If not strictly a governmental organization, moreover, the FHPA is at least quasi-governmental.  See generally Fla. Code Jud. Conduct Commentary to 5C(2) (“Judges should not accept governmental appointments that are likely to interfere with the effectiveness and independence of the judiciary.”).

The Committee concludes that the judge may not join the FHPA, even though the judge’s activities may be restricted to administrative matters.

REFERENCES

Florida Code of Judicial Conduct: Canons 5A, 4A and Commentary to Canon 5C(2).

Florida Judicial Ethics Advisory Committee Opinions:  01-03, 00-04.

_____________

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 the judge or judicial candidate. Its opinions are advisory to the inquiring party, to the Judicial Qualifications Commission and 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 Qualifications 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 Robert T. Benton, II, Chair, Judicial Ethics Advisory Committee, 301  S. MLK Jr. Blvd. Tallahassee, FL 32399.

Participating Members:
Judge Robert T. Benton, II, Judge Michael Raiden, Judge Lisa Davidson, Judge McFerrin Smith, Judge Leslie B. Rothenberg, Judge Emerson R. Thompson, Jr., Judge Richard R. Townsend, Judge Dorothy Vaccaro, Judge Jose Rodriguez, Judge T. Michael Jones, Marjorie Gadarian Graham, Esquire & Patricia E. Lowry, 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
Inquiring Judge (Name of inquiring judge deleted from this copy)