FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2008-12 (Election)1
Date of Issue: May 28, 2008

ISSUES

May a candidate for election to judicial office receive and publish an endorsement for the election from a senior assistant county attorney who is additionally employed by a municipality as an independent contractor to serve as a code enforcement special master under the authority of section 162.03, Florida Statutes (2007)?

ANSWER: Yes.

 

FACTS

A candidate for judicial office filled by election asks about the propriety of his/her receipt and use of an endorsement from a municipal code enforcement special master/magistrate (“CESM”).  The CESM is a senior assistant county attorney who is hired under contract as an independent contractor by a municipality to serve as a code enforcement special master/magistrate under the authority of section 162.03, Florida Statutes (2007).  According to the inquiry, this statute authorizes a municipality to designate a "special magistrate" in lieu of a code enforcement board with authority to hold hearings and assess fines against violators of the municipal codes and ordinances with the same status as an enforcement board under sections 162.01-162.13, Florida Statutes.

    

 

DISCUSSION

Specifically, the inquiry is whether the Code of Judicial Conduct applies to this attorney in the attorney’s service or role as a special master/magistrate.  If the Code applies to the CESM, then the CESM could not endorse the judicial candidate, nor could the candidate receive or use the endorsement.  See Fla. JEAC Op. 2007-13 (Judge may not endorse spouse’s candidacy for non-partisan local office).  “Canon 7 is intended to disentangle judges and judicial candidates from inappropriate political activity, including partisan activities and endorsing other candidates.”  Id.  “Canon 7A(1)(b) specifically prohibits a judge from publicly endorsing or publicly opposing other candidates for public office.” Id. “This prohibition applies to all endorsements, whether by action or by words.” Id.  “The Supreme Court has explained that, despite good intentions, ‘Canon 7A is absolute in its prohibition of public endorsements of political candidates.’” Fla. JEAC Op. 2007-13 (citing  In re Glickstein, 620 So. 2d 1000, 1002 (Fla. 1993)).
    

The Application section to the Florida Code of Judicial Conduct provides that: 

This Code applies to justices of the Supreme Court and judges of the District Courts of Appeal, Circuit Courts, and County Courts.  Anyone, whether or not a lawyer, who performs judicial functions, including but not limited to a civil traffic infraction hearing officer, court commissioner, general or special magistrate, domestic relations commissioner, child support hearing officer, or judge of compensation claims, shall, while performing judicial functions, conform with Canons 1, 2A, and 3, and such other provisions of this Code that might reasonably be applicable depending on the nature of the judicial function performed. 


However, the Code of Judicial Conduct’s Definitions section defines “Judge” when used in the Code as “Article V, Florida Constitution judges and, where applicable, those persons performing judicial functions under the direction or supervision of an Article V judge.”
In Florida Judicial Ethics Opinion 99-17, the Committee advised a general master/child support hearing officer that the Code did not preclude his/her service, without compensation, as a member of the Board of Directors of a not for profit charitable organization designed to provide support for disadvantaged families locally and abroad. In reaching this conclusion the Committee considered whether the inquiring party was subject to the Code of Judicial Conduct.   The Committee stated in that opinion:  “The Application of the Code of Judicial Conduct states that general masters and child support hearing officers ‘shall, while performing judicial functions, conform with Canons 1, 2A, and 3, and such other provisions of this Code that might reasonably be applicable depending on the nature of the judicial function performed.’”  In Opinion 99-17, the Committee receded from Florida Judicial Ethics Advisory Committee Opinion 95-39:

[T]o the extent that it found that Commissioners/General Masters must comply with Canons 1, 2A and 3 only while performing a judicial function. General Masters are quasi-judicial officers. They must therefore adhere to the same restrictions set forth in Canons 1, 2A, and 3 as any other judicial officer.


Unlike the general master/child support hearing officer, a municipal code enforcement special master/magistrate authorized pursuant to section 162.03, Florida Statutes, is not an Article V judge, nor a person performing judicial functions under the direction or supervision of an Article V Judge.  Thus, the CESM is not a “judge” subject to Florida’s Code of Judicial Conduct.  Therefore, a judicial candidate is not precluded from receiving or using the endorsement of such person in conformance with other sections of the Code or Florida’s election law.
    

 

REFERENCES

Fla. Code Jud. Conduct, Definitions, Application, Canons 1, 2A, 3, 7A(1)(b).

Fla. JEAC Ops. 07-13 and 99-17.

In re Glickstein, 620 So. 2d 1000 (Fla. 1993).

 

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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 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: Judge Lisa Davidson, Chair, Judicial Ethics Advisory Committee, The Moore Justice  Center, 2825 Judge Fran Jamieson Way, Viera, FL 32940.

Participating Members:
Judge Michael Raiden, Judge Richard R. Townsend, and Judge T. Michael Jones.


Copies furnished to:
Inquiring judge (Name of the Inquiring Judge deleted)
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

 

1.The Judicial Ethics Advisory Committee has appointed an Election Practices Subcommittee. The purpose of this subcommittee is to give immediate responses to campaign questions in instances where the normal Committee procedure would not provide a response in time to be useful to the inquiring candidate or judge. Opinions designated with the “(Election)” notation are opinions of the Election Practices Subcommittee of the Judicial Ethics Advisory Committee, and have the same authority as an opinion of the whole Committee.