FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2009-06
Date of Issue: March 20, 2009

ISSUE

Whether a judge may serve on a local county ethics commission for the purpose of establishing a code of ethics for the county commission?

ANSWER: No.

FACTS

The inquiring judge has been asked to serve on a local county ethics commission that was created for the sole purpose of preparing a code of ethics regulating the behavior of county commissioners to be considered by the county commission and/or the electors of the county. The inquiring judge asks if serving on this commission would be a violation of the Code of Judicial Conduct. Additionally, if able to serve, may the inquiring judge be chair of the commission?  This second question is moot and will not be addressed in this opinion since the first question is answered in the negative.

DISCUSSION

Canon 5C(1) reads in pertinent part, “a judge shall not . . . consult with an executive or legislative body or official except on matters concerning the law, the legal system, or the administration of justice. . .” In addition, Canon 5C(2) states that 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, the judicial branch, or the administration of justice.”  The inquiring judge has been asked to serve on a local county ethics commission for the purpose of preparing a code of ethics that would regulate the behavior of county commissioners.  Further, as part of its function, the ethics commission would be required to communicate and collaborate with the county commission in drafting the code of ethics. Consequently, passage of the code of ethics could be subject to review by a court of competent jurisdiction.

Generally, judges are allowed to be involved in committees and organizations as long as they are dedicated to the improvement of the law, the legal system or the administration of justice.  See Canon 4D.  However, extrajudicial participation is regulated and reviewed under Canon 5.  Drafting a policy to regulate the behavior of the public officials does not involve matters that improve the law, the legal system or the administration of justice and therefore is prohibited under Canon 5.

The Commentary to Canon 5 explains that the reason for the prohibition is to “protect the courts from involvement in extrajudicial matters that may prove to be controversial.”  It further warns that a judge’s acceptance of a governmental appointment will likely “interfere with the effectiveness and independence of the judiciary.”   

Previous JEAC opinions have addressed extrajudicial participation under Canon 5 that are not devoted to the improvement of the law, the legal system, and the administration of justice.  The committee has determined that a judge cannot serve as a member on an advisory board to address the city’s promotional process, (Op. 93-20); as a member of a county fire board (Op. 99-11); and as a member of a commission of a municipal government who would be charged with fiscal oversight of government funds (Op. 01-16).  However, the committee has found it proper to serve on the Board of Directors of a County Commission on Substance Abuse (Op. 99-07).  The committee concluded in that case that the “Commission [was] concerned with the improvement of the law, the legal system, and the administration of justice.”

The effort of drafting a policy which regulates ethical behavior and then consulting with the county commission, an executive body, clearly falls within the prohibitions of Canons 5C(1) and (2).  This committee advises the inquiring judge to decline this appointment.

REFERENCES

Florida Code of Judicial Conduct: Canons 4D, 5C(1) and 5C(2) & Commentary to Canon 5.

Florida Judicial Ethics Advisory Committee Opinions: 93-20, 99-07, 99-11, and 01-16.

_____________

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 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. See 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. See Id.

The opinions of this Committee express no view on whether any proposed conduct of an inquiring judge is consistent with the substantive law which governs any proceeding over which the inquiring judge may preside.  This Committee only has authority to interpret the Code of Judicial Conduct, and therefore its opinions deal only with the issue of whether the proposed conduct violates a provision of that Code.

For further information, contact: Judge C. McFerrin Smith, III, Chair, Judicial Ethics Advisory Committee, 101 N. Alabama Avenue, Suite 437, Deland, FL 32724.

Participating Members:
Judge Roberto Arias, Judge Robert T. Benton, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Kerry I. Evander, Judge T. Michael Jones, Patricia E. Lowry, Esquire, Judge Jose Rodriguez, Judge C. McFerrin Smith, III, Judge Richard R. Townsend, and Judge Dorothy Vaccaro.


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)