FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2019-26
Date of Issue: September 17, 2019

ISSUE

May a judge participate in the filming of a video that will be used exclusively for educational purposes on a behavioral health entity website and social media platform in an effort to educate the community about the court-based mental health diversion project? The Judge will not promote the entity but rather will be discussing the mental health diversion project.

ANSWER: No.

FACTS

The inquiring judge has been asked to tape a video for “Thriving Mind.” Thriving Mind is a not-for-profit mental health and substance use entity in several Florida counties. Thriving Mind has contracted with the Department of Children and Families (DCF) as the SFBHN. Thriving Mind is contractually and solely responsible for providing mental health and substance abuse services for the indigent population in those Florida counties through a network of providers. The inquiring judge advises that most if not all of the state, federal and local dollars for the circuit’s mental health/substance use court programs are managed by Thriving Mind. The inquiring judge advises that Thriving Mind/SFBHN is in the process of updating its website and will produce a series of videos that “highlight their funded projects in an effort to better educate the community on their available services and how to access these services.” The judge emphasizes that the video will not be used to promote Thriving Mind, but instead will be used to “promote the . . . Circuit’s Criminal Justice/Mental Health Project.” The Mental Health Project is a jail diversion project. The video will be available on the Thriving Mind/SFBHN website and its other social media. The judge’s role would include a discussion, in chambers, about the project and presumably the benefits of participating in the diversion program.

 

DISCUSSION

1. Advancing the Private Interest of Others

At the outset, we recognize and celebrate the circuit’s Criminal Justice/Mental Health Project and what good it does in the Florida counties. We, nonetheless, are concerned that appearing in the video could be used to advance the private interests of Thriving Mind/SFBHN. Although Thriving Mind or the SFBHN has apparently developed a program or programs specifically for the circuit’s jail diversion project, it is clear that the many Thriving Mind/SFBHN programs listed on its website are not exclusive to people involved in jail diversion. There are many services offered meaning there are many reasons people who are not specifically looking for the circuit’s jail diversion program might discover it. Even if that were the case, that only people participating in the circuit’s jail diversion program would have access to the video that distinction still would not carry the day. Thriving Mind is an entity unto itself, its interests are separate from that of the circuit and therefore private. A Judge may not advance the private interests of others. See Fla. Code Jud. Conduct, Canon 2B ("A judge shall not lend the prestige of judicial office to advance the private interests of ... others.").

In Fla. JEAC Op. 14-06 the inquiring judge wanted to know if the judge could appear in a video, discussing a technological development pioneered by the judge’s circuit and implemented by a technology company working with the circuit. In the video, it was the judge’s role to discuss and explain how well the technology had worked in the circuit. The video was to be shown by the provider of the technology at a large technology conference and placed on the technology company’s website. The inquiring judge reported that the marketing company described the video as an inspirational story about collaboration, and how the outcome has improved the lives of the court staff and the community they served. Even though the technology had been pioneered in and for the circuit we concluded that if the judge were to appear in the video it would violate Canon 2B, as it would be an indirect endorsement of the product “lending the prestige of the judicial office to advance the private commercial interests of the technology company.”

In Fla. JEAC Op. 06-14, the inquiring judge was to appear in a documentary about a literacy initiative designed for incarcerated youth that had been successfully implemented in courts and in schools. At the time of the inquiry, the judge had already recorded the interview but the documentary had not been marketed. The judge did not endorse the particular reading method in question in the interview, but instead simply talked about literacy as an issue of public health and safety and about the importance of identifying and remediating dyslexia at an early age. The owners of the rights to the documentary sought the judge’s permission to use the interview to market the program commercially. We concluded that if the judge were to grant permission to use the judge’s image it would violate Fla. Code Jud. Conduct, Canon 2B by lending the prestige of judicial office to advance the private interests of others.

2. Solicitation of Funds or Membership:

We also caution that any video the judge appears in could unintentionally be used to solicit funds or increase membership. The SFBHN’s website confirms its non-profit status and its intent and willingness to serve everyone regardless of income. However, the online Consumer and Family Resource Manual makes clear that everyone, even those with low income, will be expected to pay something for its services. The fees are based on a sliding scale.1 The website and manual also advertise the various services SFBHN provides, the providers it is associated with, and where those services can be obtained which includes, among other places, the courthouse and office of the Public Defender. Any person who participates in the circuit’s mental health jail diversion program will be required to pay a minimum fee either to SFBHN or its providers or both. Because SFBHN has the sole contract with the circuit, the jail diversion participants will be required to use its services or the services of its affiliated providers and pay whatever price the sliding scale dictates. We have not been advised that the fees or fee schedules do not apply to people who participate in the circuit’s jail diversion program. Fla. Code Jud. Conduct, Canon 5C (3)(b)(iii) states, "A judge . . . shall not use or permit the use of the prestige of judicial office for fund-raising or membership solicitation." A judicial testimonial/explanation of the program and its benefits will, even though unintentionally, serve to encourage or convince potential participants to pay the necessary funds and participate in the worthwhile program. This is especially so because the video will be placed on the website and other social media.

3. Tacit Endorsement:

The inquiring judge advises neither the judge’s role in the video nor will the video itself serve to promote Thriving Mind/SFBHN. The judge’s role is to provide “purely educational information about the diversion project.” The video will “help members of the community access the program.” However, even with that limited role, the judge’s comments would still qualify as tacitly lending the prestige of office to advance private interest of Thriving Mind/SFBHN or to increase membership in the diversion program resulting in the increased fee payments. See Fla. Code Jud. Conduct, Canons 2B and 5C(3)(b)(iii). In Fla. JEAC Op. 97-29, the Committee concluded that Canon 2B prohibited a judge from appearing in a promotional sales video attesting to the usefulness of a company’s video conferencing equipment. Although the judge was not providing a direct endorsement of the video conferencing equipment, the Committee found that a judge, who appears in a promotional is at the very least tacitly endorsing the product. In Fla. JEAC Op. 00-15 the inquiring judge was asked to tape public service announcements for non-profit organizations that did not intend to solicit volunteers or contributions and where these announcements would only advise the public of the existence of such organizations and the projects these organizations run. We concluded the “judge's testimonial in the video for the public, i.e., prospective volunteers and contributors, is at the very least tacitly lending the prestige of the judge's office to advance the solicitation of funds and/or membership” in violation of Fla. Code Jud. Conduct, Canons 5C(3)(b)(iii) and 2B (emphasis added). In Fla. JEAC Op. 06-14, a judge sought to appear in a documentary film about the benefits of a new reading method that could benefit incarcerated youth. Even though the judge would not specifically endorse the reading instruction method being marketed in the interview, the judge’s appearance in a documentary would constitute a tacit endorsement of the reading method being marketed. This would lend the prestige of the judge’s office to advance the private interests of others, and accordingly violate Canon 2B.

4. Judicial Control of Video Recording and its Future Use:

Finally, the inquiring judge advises that the judge will have control over the future use of the video. However, the judge acknowledges the video will be placed on the Thriving Mind/SFBHN “website and social media.” The judge did not define the term “social media” and what it means in the context presented here. We do not know what other social media the video will appear on. One can envision the video appearing on Instagram, Snap Chat, Twitter, Facebook, You Tube, or even dated sites like My Space and Napster. The potential list of what qualifies as “social media” is vast and unlimited. In reality, it doesn’t actually matter what other social media is used by SFBHN to post the video; once the video appears in the public domain, i.e. on the various forms of Thriving Mind/SFBHN social media, it is effectively already beyond the judge’s control.

 

REFERENCES

Fla. Code Jud. Conduct, Canons 2B; 5C(3)(b)(iii)
Fla. JEAC Ops. 14-06; 06-14; 00-15; 97-29
https://sfbhn.org/docs/manual/1541012259.pdf: SFBHN Consumer Resources Manual

_____________


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 W. Joel Boles, Judicial Ethics Advisory Committee Chair, First Circuit M.C. Blanchard Judicial Building, 190 Governmental Center, 6th Floor, Pensacola, FL 32502 or JEAC@flcourts.org.

Participating Members:
Judge Michael Andrews, Judge Roberto Arias, Judge Nina Ashenafi-Richardson, Judge W. Joel Boles, Judge Miguel de la O, Judge James A. Edwards, Judge David Green, Mark Herron, Esquire, Judge Jeffrey T. Kuntz, Judge Matthew C. Lucas, Judge Michael Raiden, and Charles Reynolds, Esquire.

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 deleted)
Chief Justice Charles T. Canady, Justice Liaison
John A. Tomasino, Supreme Court Clerk
All Committee Members
General Counsel of the J.Q.C.
Melissa Hamilton, Staff Counsel

 

1. See https://sfbhn.org/docs/manual/1541012259.pdf: SFBHN Consumer Resources Manual - COST OF SERVICES: If you do not have money or health insurance, mental health and/or substance abuse services will still be provided to you. Community mental health centers that receive funds from the State provide treatment and services based on what you can afford to pay. This is called a sliding-scale or sliding fee basis of payment. Every person is responsible to pay for some of the cost of their care but if you have very little money or no money, services are still provided.