FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2017-09
Date of Issue: April 19, 2017

ISSUE

May a judge submit a letter to a municipality supporting the dedication of a little league baseball field in the name of the judge’s deceased former bailiff?

ANSWER: Yes.

FACTS

The judge’s former bailiff recently passed away. During his life, he was very active in little league baseball. The former bailiff’s family is petitioning the city to dedicate one of its little league baseball fields in his name. The City Council has suggested the family provide letters of support from the community, and the inquiring judge has been asked to write a letter supporting dedication of the ball field. The inquiring judge has certified that there is no solicitation of monetary contributions or other donations associated with the request to the city and that the judge’s letter will not be used for any of those purposes.

 

DISCUSSION

Canon 2 of the Code of Judicial Conduct governs this inquiry. Canon 2B of the Code provides that “[a] judge shall not lend the prestige of judicial office to advance the private interests of the judge or others.” ¬†However, the commentary to Canon 2B creates an exception for letters of recommendations. It provides in relevant part, as follows:

Although a judge shall be sensitive to possible abuse of the prestige of office, a judge may, based on the judge’s personal knowledge, serve as a reference or provide a letter of recommendation.

This commentary has led the JEAC to opine that judges may, based upon personal knowledge, write letters of recommendation to a potential employer or commendation to an employee’s personal file, Fla. JEAC Op. 10-29, for applicant for law school fellowship, Fla. JEAC Op. 07-06, applicant for law school, Fla. JEAC Op. 79-03, letters of commendations, Fla. JEAC Op. 94-45, to judicial nominating commissions, Fla. JEAC Ops. 86-02, 89-15, 91-28, 03-09, and to the Florida Department of Elderly Affairs acknowledging that a professional guardian has demonstrated competency, intended to be sent by the guardian seeking waiver of a competency examination, Fla. JEAC Op. 05-04.

Judges, however, are not allowed by the judicial code to write such letters for investigatory and/or adjudicatory proceedings where legal rights, duties, privileges, or immunities would be decided. Fla. JEAC Op. 94-45. Therefore, the JEAC has opined that a judge could not write a letter of recommendation or good character to the Department of Business and Professional Regulation where the privilege of obtaining a professional license would ultimately be determined, Fla. JEAC Op. 13-08, in criminal sentencing proceedings, Fla. JEAC Op. 10-34; see also In re Fogan, 646 So. 2d 191 (Fla. 1994); In re Able, 632 So. 2d 600 (Fla. 1994), recommending parole to the Parole and Probation Commission, Fla. JEAC Op. 77-17, attorney disciplinary action by the Florida Bar, Fla. JEAC Op. 04-22, to the Florida Bar in connection with disciplined lawyer seeking re-admission to the Bar, Fla. JEAC Op. 88-19, to Clemency Board or Board of Bar Examiners, Fla. JEAC Op. 82-15, or for judge’s personal business interests or matters, Fla. JEAC Ops. 81-08, 92-02, 96-14.

The type of letter involved in this inquiry is more akin to those letters that are allowed by the Code and by the JEAC opinions referred to above. This letter will contain the judge’s recommendation, based solely upon the judge’s personal knowledge of the deceased bailiff. This letter will not be sent in a matter where there is an adjudicatory or investigative proceeding. At most, the letter may be considered to be tangentially related or appealing to a government body which will decide to bestow an honorary title (a privilege) in memory of a deceased person. However, this is not the type of “privilege” contemplated by either the Code or the JEAC opinions. The prohibited type of privileges are those which will benefit a living individual or ongoing business interest who may be seeking to be granted a benefit or license the likes of which, if awarded, would bestow on petitioner a legal right. See, e.g., JEAC Op. 13-08. The decision in the subject matter for which the letter is to be used, rests solely upon the discretion of the city council and would not bestow any rights or privileges of that sort.

In conclusion, this Committee finds that the inquiring judge may write a letter to the city council based upon the judge’s personal knowledge.

 

REFERENCES

In re Fogan, 646 So. 2d 191(Fla. 1994); In re Able, 632 So. 2d 600 (Fla. 1994).
Fla. Code of Jud. Conduct, Canons 2, 2B.
Fla. JEAC Ops. 77-17, 79-03, 81-08, 82-15, 86-02, 88-19, 89-15, 91-28, 92-02,
94-45, 96-14, 03-09, 04-22, 05-04, 07-06, 10-29, 10-34, 13-08.

_____________


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 of 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 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 Judge Spencer D. Levine, Chair, Judicial Ethics Advisory Committee, Fourth District Court of Appeal, 1525 Palm Beach Lakes Blvd., West Palm Beach, FL 33401

Participating Members:
Judge Roberto Arias, Judge Nina Ashenafi-Richardson, Judge W. Joel Boles, Judge Michael Andrews, Judge Miguel de la O, Judge James A. Edwards, Mark Herron, Esquire, Judge Barbara Lagoa, Judge Spencer D. Levine, Judge K. Douglas Henderson, Patricia E. Lowry, Esquire, Judge Michael Raiden.


All Judicial Ethics Advisory Committee opinions, subject matter indices, and a search engine are available on the Sixth Circuit’s website at www.jud6.org under Opinions. Committee opinions and related finding tools are also accessible on the Florida Supreme Court’s website at www.floridasupremecourt.org as a secondary posting under Court Opinions.


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