FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2010-10
Date of Issue: April 19, 2010

ISSUE

Whether it is ethically permissible under the Florida Code of Judicial Conduct for a judge to allow a probationer to complete a course sponsored by a private, for-profit organization, in exchange for waiving all or part of any community service ordered as part of the probationer’s sentence.

ANSWER: Yes.

FACTS

The Inquiring Judge is in the felony division. It is common practice in this Judge’s circuit to require some community service as part of a sentence for persons placed on probation.

There is a private, for-profit organization in the Inquiring Judge’s circuit that offers a four-hour course to people on probation. The stated mission of this organization is to offer this course to new probationers for the purpose of providing information and coping skills necessary to enable probationers to successfully complete their terms of probation.  According to the material provided by the organization, the course explores why people break the law, it enlightens attendees as to the pitfalls of being on probation, and it teaches the necessary tools to successfully complete probation. The course is taught by licensed professionals under the direction of a medical doctor. The registration fee for the course is $65.00.  There is no sliding scale based upon a probationer’s income, and this fee must be paid prior to being admitted into the course.  

The Florida Department of Corrections “DOC” indicated that it does not support or sanction the course. However, DOC informed that if offenders are ordered to attend, DOC would comply with the court’s instruction.

The Inquiring Judge does not intend to require defendants to attend the course, but would consider waiving all or part of a defendant’s community service requirement in return for successful completion of this probation course. However, the Inquiring Judge wants to know whether waiving all or part of a defendant’s community service requirement in return for successful completion of this probation course is ethically permissible.

DISCUSSION

A judge may ethically allow a probationer to complete a course sponsored by a private, for-profit organization, in exchange for waiving all or part of any community service ordered as part of the probationer’s sentence. The Committee’s response is solely limited to the ethical question involved.   Whether a judge can legally waive all or part of a defendant’s community service requirement in return for successful completion of a course designed to equip new probationers with the information and coping skills needed to successfully complete probation is a question outside this Committee’s jurisdiction and for which this Committee makes no substantive law determination.

Canon 2B of the Florida Code of Judicial Conduct provides that a judge must avoid lending the prestige of judicial office for the advancement of the private interests of others.   Canon 5C(3)(b)(i) and (iii), formerly Canon 5B(2), prohibit a judge from personally or directly participating in the solicitation of funds or other fund-raising activities, and forbid a judge from permitting or using the prestige of judicial office for fund-raising or membership solicitation.  These Canons apply to the subject inquiry because any referral by a judge must not create the appearance that the judge is using the judge’s office to raise funds for the private interests of another.  As noted in Fla. JEAC Op. 84-11, “The power to control the pocketbook of another person so as to cause him to take that which is his own and give it to another, is an awesome power; it is tantamount to the authority to tax.”   

A long line of prior JEAC opinions have opined that it is unethical for a judge to require defendants to contribute physical labor/time or money to a specific charitable/benevolent or non-profit organization named by the judge as this conveys the impression that the judge is advancing the interests of a particular charity, and thus, improperly lending the prestige of judicial office to that particular charity.  Fla. JEAC Op. 84-11 (Judge may not order defendant in criminal cases to pay sums of money directly to charity named by judge as a part of the sentence imposed); Fla. JEAC Op. 87-06 (Judge may not require a defendant to contribute a sum certain to a specific charitable organization as a condition of probation); Fla. JEAC Op. 85-13 (Judge’s action of requiring defendants to donate money to a “Community Service fund” in order to receive community service credit violated Canon 2B, which proscribes a judge from soliciting funds or permitting the use of judicial office for that purpose). 

However, the Inquiring Judge is not supporting or endorsing a particular organization financially or otherwise by permitting probationers to attend this four hour course in exchange for waiving all or part of their community service hours. The Inquiring Judge is not ordering probationers to attend this course, and therefore, the Judge is not violating Canon 2B.  This Committee has previously noted that “[a] judge’s sentencing options should not be limited solely because only one organization in a county has sought to provide this particular program; of course, should other entities be willing to present a course, then the probationer should be given the opportunity to choose between providers.”  Fla. JEAC Op. 09-02.  In Fla. JEAC Op. 89-10, at issue was whether a judge could ethically order a probationer as a condition of probation to perform community service work for a specific charitable/benevolent non-profit organization, such as the Elks, Moose, Lions Club, or the Chamber of Commerce.  The Committee opined that the requirement of community service to be performed for a specific, named charity was prohibited, although the act of performing community service was not, and it was suggested that the judge could provide to probationers a list of all community service organizations rendering particular types of services,  in which the probationer could participate.

Other Judicial Ethics Advisory Committee opinions have also opined that ordering such a course is ethically permissible, as long as referral to such a course is not limited only to certain organizations as this action would violate Canon 2B, which prohibits a judge from lending the prestige of office to advance the private interests of others.    For example, in Fla. JEAC Op. 92-20, the Committee opined that a judge could ethically require parties in a dissolution of marriage action to successfully complete a program designed to assist children coping with divorce, provided that such a program was not limited to certain institutions and counseling services.   See also Fla. JEAC Op. 09-02 (Judge may require probationers to pay for, and attend a victim impact panel course where the course is presented by Mothers Against Drunk Drivers and where the funds paid will help fund its operations); Fla. JEAC Op. 98-29 (Judge may order domestic violence offenders to attend a domestic violence program owned and operated by a judge’s spouse when the actual selection of the program is made by the defendant or respondent from a list of approved programs provided by the probation office); Fla. JEAC Op. 93-60 (Judge may require first-time convicted DUI offenders to attend and complete as a special condition of probation a program called “DUI Victim Impact Panel”).

However, this Committee has also previously cautioned “that anytime a defendant is required to participate in a program not specifically authorized by statute, then the judge should be personally satisfied that the program is a well-run program and it truly serves the purpose for which it is intended.”  Fla. JEAC Op. 93-60.

REFERENCES

Fla. Code Jud. Conduct, Canons 2B, 5C(3)(b)(i) and (iii).
Fla. JEAC Ops. 84-11, 85-13, 87-06, 89-10, 92-20, 93-60, 98-29, 09-02.

_____________

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 Robert T. Benton, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Kerry I. Evander, Judge Jonathan D. Gerber, Judge T. Michael Jones, Judge José 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)