FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2011-05
Date of Issue: April 13, 2011

ISSUE

(1) Whether a Judge may chair an educational non-profit organization designed to assist, promote and support the public school board and superintendent in activities that advance and improve the quality of instruction in public schools system within the judge’s judicial circuit?

ANSWER: No.

FACTS

The inquiring circuit court Judge was asked to chair a non-profit organization within the county where the judge presides. Among the organization’s stated purposes, it aims to join the superintendent of the county’s public school system in improving the quality of instruction in public schools identified as “turnaround” or “intervene” schools. Based on the organization’s proposed articles of incorporation, although the organization is not a “school board,” as defined by the Florida Statutes, the organization is closely aligned with some of the functions and duties statutorily assigned to school boards.  Due to some provisions of the organizations articles of incorporation, the Inquiring Judge questions whether involvement in the organization violates the Code of Judicial Conduct.

DISCUSSION

Pursuant to Canon 5C(2), a judge may not accept appointment to a governmental committee or commission or other governmental position that is concerned with matters other than the improvement of the law, the legal system, or the administration of justice.  With regard to involvement in public school boards, the Commentary to Canon 5C(2) explains, “service on the board of a public educational institution, unless it were a law school, would be prohibited under Canon 5C(2), but service on the board of a public law school or any private educational institution would generally be permitted under Canon 5C(3).” (Emphasis added).

This Committee previously considered judicial involvement with public educational institutions.  See JEAC Op. 03-21 (judge may not be a trustee of a community college); JEAC Op. 07-08 (judge may not accept a position on the board of trustees for a state university); But see, JEAC Op. 08-01 (judge may serve on the regional planning council for a state university seeking to raise the profile of the university in the area where the judge sits); JEAC Op. 92-6 (judge may participate as a member of a development board for a private parochial school);  In JEAC Op. 03-21, this Committee explained the apparent inconsistency between Canon 5C(3) and Canon 5C(2) as follows:

Canon 5C permits a judge to be a trustee of a public law school or other public educational organization related to the law, the legal system, or administration of justice, but prohibits a judge from being a trustee of any other type of public educational institution. Although Canon 5C(3) allows a judge to be a trustee of an educational organization, the judge may do so only if the organization is a non-governmental, not for profit, entity and is otherwise not precluded by the specific limitations set forth in subsection 3.

The governing body of a county’s public school system is a school board.  See Fla. Stat. s. 1001.40.  The superintendent is the executive officer of the school board. Id.  The superintendent exercises general oversight over the public school system and advises, counsels and makes recommendations to the school board on all educational matters.  See Fla. Stat. s. 1001.50. Further, pursuant to s. 4(b) of Art. IX of the Florida Constitution, a public school board “shall operate, control, and supervise” all public schools. Here, while the organization under contemplation is not a public school board by definition, it identifies itself as an educational non-profit organization designed to “provide assistance and support to” the county’s public schools; “cooperate and work with” the superintendent of the county’s public school; and “undertake duties and provide services” as approved by the superintendent of the public schools within the county where the Inquiring Judge presides.  Thus, the organization clearly intends to unite with the public school board in the stated goals.

Applying this Committee’s analysis in JEAC Op. 03-21, if the instant educational organization is a non-governmental, not for profit entity and is otherwise not precluded by the remaining limitations set forth in Canon 5C(3), the Inquiring Judge may accept the chair position. The converse is also true; if the instant educational organization so closely advises or supports the school board or the superintendent that the organization is akin to a quasi-governmental organization, the Inquiring Judge is prohibited from participating.

According to its proposed articles of incorporation, this organization purposes to:

engage local, state and national financial and human resources to help attract and retain teachers;

facilitate best practices and business relationships to assure effective, efficient and fair methods of assessing student and teacher performance and identifying and rewarding highly qualified teachers;

provide input, guidance and direction on staffing, em-ployee compensation, curri-culum and instruction, learning days and years;

mobilize and facilitate community support for students;

receive and maintain personal and/or real property;

employ or contract personnel; and

enter into contracts.

Some of the general powers of district school board under Chapter 1001 of the Florida Statute are as follows:

consider recommendations submitted by the district school superintendent (F.S. s. 1001.41);

determine policies and programs for the efficient operation and general improvement of the district school system (F.S. s. 1001.41);

prescribe and adopt standards and policies to provide each student the opportunity to receive a complete education (F.S. s. 1001.41);

contract, sue, and be sued (F.S. s. 1001.41);

perform duties and exercise those responsibilities that it may find to be necessary for the improvement of the district school system in carrying out the purposes and objectives of the education code (F.S. s. 1001.41);

control property and convey the title to real and personal property (F.S. s. 1001.42);

cooperate with other agencies in joint projects (F.S. s. 1001.42);

adopt policies providing for innovative teaching tech-niques, teaching programs and methods (F.S. s. 1001.42);

receive input from the community concerning instruction resources; participation in community affairs, including coordin-ation with local govern-ments and planning authorities (F.S. s. 1001.42);

Thus when comparing the articles of incorporation of the educational non-profit organization with the statutory responsibilities of a school board, many of the organization’s functions align. Further, because the main purpose of the organization is to “support,” “provide assistance to,” “work with,” and seek approval from the school board and the superintendent, the prohibitions enunciated in the Canon 5C(2) apply. Therefore, because the contemplated organization is a non-law related  public school that is so closely aligned with the roles of the school board and the superintendent, the Inquiring Judge may not serve as the chair.

REFERENCES

Fla. Const. Art. IX, 4(b).

Fla. Stat. s. 1001. 40; s. 1001.41; s. 1001.42; s. 1001.50.

Fla. Code of Jud. Conduct: Canon 5C(2); 5C(3); Commentary to Canon 5C(2).  

Fla. JEAC Ops. 03-21; 07-08; 08-01; 92-6.

_____________

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 Kerry I. Evander, Chair, Judicial Ethics Advisory Committee, Fifth District Court of Appeal, 300 South Beach Street, Daytona Beach, Florida  32114-5002.

Participating Members:
Judge Roberto Arias, Judge Robert T. Benton, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Kerry I. Evander, Judge Jonathan D. Gerber, 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)