FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2009-14
Date of Issue: August 31, 2009

ISSUE

May a chief judge appoint members to a Board of Ethics created by municipal ordinance for the benefit of the municipal government?

ANSWER: No.

FACTS

A municipality adopted an ordinance creating a Board of Ethics, which has the function of addressing ethical issues within the legislative and executive branches of government.  The ordinance requires that the chief judge appoint two of the five board members.

DISCUSSION

The Florida Code of Judicial Conduct was adopted to preserve the integrity and independence of the Judiciary.  The Code clearly endeavors to maintain the separation of powers in Canon 5(C), which provides in part:

(1) a judge shall not appear at a public hearing before, or otherwise consult with, a legislative or executive body or official except on matters concerning the law, the legal system, or the administration of justice .... (emphasis added).

(2) 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 .... (emphasis added).

The municipality, through its ordinance, has delegated an executive or legislative function to a judicial officer.  The appointment process would involve consultation with the legislative body and is not a matter concerning the law, the legal system, or the administration of justice, and thus is precluded by Canon 5(C)(1).

Furthermore, if the inquiring judge exercises this power of appointment, the judge is accepting a governmental position concerned with fact or policy on matters other than the improvement of the law, the legal system, the judicial branch, or the administration of justice.  This, likewise, is precluded by Canon 5(C)(2).

Although this is an inquiry of first impression, other opinions of this Committee on similar issues are instructive and consistent with the conclusions set forth above.  In Fla. JEAC Op. 07-03, this Committee stated that a judge may accept an appointment to membership on the Taxation and Budget Reform Commission created by the Florida Constitution.  However, the Committee found that the Commission’s purpose is to improve the law and its administration.  Finally, the Committee concluded that the Commission created by the Constitution was not part of the executive or legislative branches of government, but was an independent constitutional commission.  As such, membership would not intrude upon the separation of powers, prohibited by Article II, §3, Florida Constitution, which provides, “The powers of the state government shall be divided into legislative, executive, and judicial branches.  No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.”  

In Fla. JEAC Op. 01-16, this Committee advised that a judge could not serve as an appointed member of a commission of a municipal government charged with fiscal oversight of government funds.  In finding a violation of Canon 5(C)(2), the Committee concluded that service on the committee would affect the public’s perception of the independence of the courts from the executive and legislative branches of our governments.

For the foregoing reasons, this Committee recommends that the chief judge respectfully decline to appoint members of the Board of Ethics.

REFERENCES

Article II, §3, Florida Constitution
Fla. Code of Jud. Conduct, Canon 5(1), 5C(2)
Fla. JEAC Op. 07-03
Fla. JEAC Op. 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 T. Michael Jones, Chair, Judicial Ethics Advisory Committee, 190 Governmental Center, M.C. Blanchard Judicial Building, Pensacola, Florida  32502.

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, 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)