FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2014-24
Date of Issue: November 12, 2014

ISSUES

May a judge donate funds remaining in the judge’s campaign account to a not-for-profit 501(c)(3) organization on whose board the judge sits?

ANSWER: Yes.

FACTS

The inquiring judge sits on the board of a not-for-profit 501(c)(3) corporation. The organization’s mission has nothing to do with the law, the legal system or the administration of justice. The judge is not paid for sitting on the board or for any activities the judge engages in with respect to the not-for-profit. The judge has not been involved in any fundraising activities for the organization since becoming a judge.

The inquiring judge is in the process of closing the judge’s judicial campaign account. The judge’s campaign treasurer distributed all reimbursement checks with a note that monies from any checks not cashed or deposited within 30 days will be donated to a charity. More than 60 days have elapsed and there is still a balance from checks that were not cashed or deposited.

The inquiring judge would like to donate the remaining money to the not-for-profit on whose board the judge serves, and inquires as to whether there is any ethical prohibition.

DISCUSSION

In answering this question, the Committee first notes that it is not undertaking to render legal advice regarding the disposition of campaign funds. It is responding solely to the ethical inquiry posed -- which the Committee determines to be whether the contemplated conduct of donating campaign funds raised from others to a not-for-profit on whose board the judge serves constitutes improper fundraising by the judge. For the reasons stated, the Committee believes such a donation does not constitute improper fundraising, and is not otherwise prohibited by the Code of Judicial Conduct.

The issue presented involves extrajudicial activities which are governed by Canon 5 of the Florida Code of Judicial Conduct. Canon 5 provides generally that judges must regulate extrajudicial activities to minimize the risk of conflict with their judicial duties.

Canon 5C(3) allows participation by judges in educational, religious, charitable, fraternal, sororal or civic organizations not conducted for profit, with certain limitations. Pertinent to this inquiry, Canon 5C(3)(b), which was amended in 2008, currently provides that a judge may assist such organizations in planning fund-raising and may participate in the management and investment of the organization’s funds, “but shall not personally or directly participate in the solicitation of funds, except that a judge may solicit funds from other judges over whom the judge does not exercise supervisory or appellate authority,” and that the judge “shall not use or permit the use of the prestige of judicial office for fund-raising . . ..” (Emphasis added.)

The Commentary to Canon 5C(3)(b) provides further insight into the prohibition on fund-raising. The Commentary states that “Personal or direct solicitation of funds for an organization . . . involve the danger that the person solicited will feel obligated to respond favorably to the solicitor if the solicitor is in a position of influence or control. A judge must not engage in direct, individual solicitation of funds . . .” (listing certain exceptions). “It is also generally permissible for a judge to pass a collection plate at a place of worship or for a judge to serve as an usher or food server or preparer, or to perform similar subsidiary and unadvertised functions at fund-raising events . . . so long as they do not entail direct or personal solicitation.”

Canon 7C, also of relevance here, provides that a candidate for judicial office that is filled by public election “shall not personally solicit campaign funds, or solicit attorneys for publicly stated support, but may establish committees of responsible persons to secure and manage the expenditure of funds for the candidate’s campaign . . .. A candidate shall not use or permit the use of campaign contributions for the private benefit of the candidate or members of the candidate’s family.” Canon 7C(1) (emphasis added).

Taking into account the above prohibitions on fund-raising, the Committee opines that the donation of the remaining campaign funds here does not violate the ethical prohibitions of either Canon 5C or Canon 7C. If the funds in the judge’s campaign account were obtained in compliance with Canon 7C they were not solicited directly or individually by the judge. Rather, they were either contributed voluntarily or solicited by others on behalf of the judge. See Canon 7C(1). Further, at the time the funds were solicited or contributed, they were not being solicited or contributed for the benefit of the not-for-profit, but rather for the benefit of the judge’s election campaign.

At the close of the campaign, the judge’s campaign treasurer attempted to reimburse those who made contributions, even though the judge was not required to do so. See Fla. Stat. 106.141(4)(a). The judge now proposes to contribute to the not-for-profit only those funds which are now unclaimed, more than 60 days after reimbursement was attempted. Additionally, there is no indication that the campaign treasurer’s note accompanying the reimbursement checks identified a particular charity to which remaining funds would be donated. Accordingly, the act now contemplated, making the contribution to the judge’s chosen charity, cannot be said to “entail personal or direct solicitation” on behalf of the not-for-profit.

The Committee is also of the opinion that donation of the funds to a charity chosen by the judge, and with whom the judge has an association, does not improperly use the prestige of judicial office for fund-raising for the organization. If done in compliance with Canon 7, the original solicitation of such funds on behalf of the judge’s campaign is expressly permitted by the Code, and so any funds remaining in the campaign account were originally raised without any abuse of the power of the judicial office.

Further, the campaign treasurer attempted to return the funds and the contributors whose funds are now available failed to claim their reimbursement. If the campaign treasurer’s note accompanying the reimbursement checks did not identify the charity to which remaining funds would be donated, there could be no argument that the judge lent the prestige of office to any particular not-for-profit.

The sole act remaining, contributing the funds to the not-for-profit selected by the judge, likewise does not impermissibly lend the prestige of the office to the organization. Rather, if done in a private manner without attendant publicity, this manifestation of support for the organization is comparable to the judge’s service on the board or engaging in other activities supportive of the organization which are expressly permitted by the Canons and Commentary. See Canon 5C(3) (judge may serve as officer, director, trustee or non-legal advisor of charitable and not-for-profit organizations); Commentary to Canon 5C(3) (judge may attend fundraising event and perform subsidiary and unadvertised functions); see also Fla. JEAC Op. 10-15 (majority position) (judge may participate as a walker in a walk-a-thon fund-raiser to benefit a charitable organization and make a personal contribution to support the cause); Fla. JEAC Op. 05-14 (predating 2008 amendments to the Code) (judge may forward to charity donations solicited before applying to judicial appointment, to the extent the donations were received before the judge was appointed).

In Fla. JEAC Op. 10-15, the Committee made an exhaustive analysis of prior opinions relating to fundraising and noted that the Committee has “observed a distinction between those activities in which the judge is, or appears to be, personally or actively participating in soliciting funds . . . and those where the judge is not, regardless of whether the identity of the judge is revealed. Similarly, the opinions make a distinction between those activities where the prestige of the judge’s office is being used for fund-raising and those where it is not.”  The Committee further concluded in 10-15 that the Commentary language added in 2008 revealed a willingness by the Supreme Court to allow judges to be involved in fund-raising “’so long as the [function the judge is performing] does not entail direct or personal solicitation.’”

Applying those standards, as well as the standards set forth in the Code and Commentary, provides additional support for the Committee’s conclusion. The function of donating the leftover funds in the campaign account does not involve any personal, active, direct or individual solicitation of anyone by the judge, nor does it reasonably suggest the appearance such solicitation.

Likewise, making the donation does not create the danger that any person who contributed to the campaign will feel obligated to contribute to the judge’s chosen charity because of the judge’s position of influence or control. To the contrary, the judge’s campaign attempted to reimburse the contributors, apparently without identifying the charity to which unclaimed funds would be donated. Those individuals have already made the decision not to accept the reimbursement or simply have failed to do so within a reasonable amount of time.

Perhaps some individuals may have felt they should not claim their reimbursement so that the money could be donated to a charity of the judge’s choosing. To the extent any individual in fact had such a reaction, the Committee does not interpret the Code as prohibiting the judge from making the contemplated contribution.

With respect to Canon 7C’s prohibition on the use of campaign contributions for the private benefit of the candidate, the Committee believes that any incidental benefit to the inquiring judge as a member of the board of the not-for-profit does not violate Canon 7. The inquiring judge receives no monetary compensation from the organization for serving on the board or engaging in other activities related to the organization and therefore receives no “private benefit” from the donation.

REFERENCES

Fla. Stat. 106.141(4)(a).

Fla. Code Jud. Conduct Canon 5C & Commentary; Canon 7C.

Fla. JEAC Ops. 10-15, 08-23 and 05-14.

Fla. JEAC Ops. 91-22, 93-66, 94-32, 01-14.

_____________


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 to 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.    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 Petition of the Committee on Standards of Conduct Governing Judges, 698 So. 2d 834 (Fla. 1997).

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

For further information, contact Dean Bunch, Chair, Judicial Ethics Advisory Committee, 3600 Maclay Boulevard South, Suite 202, Tallahassee, Florida 32312.

Participating Members:
Judge Roberto Arias, Judge Nina Ashenafi-Richardson, Judge Robert T. Benton, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Jack Espinosa, Jr., Judge Jonathan D. Gerber, Judge T. Michael Jones, Judge Barbara Lagoa, Patricia E. Lowry, Esquire, Judge Michael Raiden, and Judge Richard R. Townsend.


Copies furnished to:
Inquiring judge (Name of the Inquiring Judge deleted)
Justice Charles T. Canady, Justice Liaison
John A Tomasino, Clerk of Supreme Court
All Committee Members
Executive Director of the Judicial Qualifications Committee
Office of the State Courts Administrator