SUBJECT: Service by a family division judge on the board of directors of a nonprofit corporation to operate a supervised visitation center.
Canon 4D, Canon 5C
The inquiring judge is the administrative judge of the family division of his judicial circuit. The local bar has secured Florida Bar funds for operating a supervised visitiation program which would utilize existing facilities at the Baptist Children's Home. The lawyers setting up the program have asked the current administrative law judge of the family division in the circuit to be a permanent member of the board on the nonprofit corporation that will operate the program. The inquiring judge asks:
1.May a family division judge serve on the board of direstors of a nonprofit corporation formed by the Young Lawyers Division of The Florida Bar, or a local bar association, to operate a supervised visitation facility which will be the site of supervised visitation on family division cases, when such visitiation may be ordered by the family division judge who is on the board of directors?
2 Does it matter whether or not a fee is charged to the parties?
Under Canon 4D, a judge may serve as a director of an organization or agency devoted to the improvement of the law the legal system or the administration of justice, subject to certain limitations and other requirements of the Code. The limitations concerning the organization's involvement in litigation are the same under Canon 4D as under Canon 5C. Canon 4D(2)(b), however, allows a judge, as a director of an organization devoted to the improvement of the law, legal system or the administration of justice, to make recommendations to public an private fund generating organizations on projects and programs concerning the improvement of the law, legal system or the administration of justice
Under Canon 5C(3) of the Code of Judicial Conduct, a judge may serve as a director of a charitable or civic orgainzation not conducted for profit subject to certain limitations and other requirements of the Code. The specific limitations imposed by Canon 3C(3)(a) are that the organization in question not be engaged frequently in advesary proceedings in the court of which the judge is a member. Because the proposed visitation program in new, it will have no track record as to litigation. Although it is unlikely that such a program would frequently engaged in litigation, any judge becoming a member of the board would have a continuing obligation to monitor the status of the organization in that regard. Even where board membership is allowed, a judge may not personally participate in the solicitation of funds, except form other judges over whom the judge does not excercise supervisory or appellate authority, although the judge may assist the organization in planning fund raising and may participate in the management and investment of the orgainzation's finds.
Many prior Committee opinions have approved judicial service on boards of organization that tangentially related to the courts. In Opinions 88-24 and 88-30, the Committee found that a judge may serve as a member of the Alcohol, Drug Abuse and Mental Health Planning Counsel (sic). A judge may also serve as a member of the board of the local DUI countermeasures school. Opinion 93-23. The Code permits a judge to participate as a member of the board of directors of day care for preschoolers. Opinion 93-43. A judge may serve on a county's Childrens's Advisory Board, because this board is sufficiently related to the improvement or the administration of justice. Opinion 93-46. A judge may also serve in an advisory capacity on the Regional Juvenile Detention Center's Community Advisory Board. Opinion 94-04. Similarly, a judge may serve as a member of the District Juvenile Justice Board. Opinion 94-31.
Service on the board of the supervised visitation program would appear to be permissible under both Canons 4D and 5C. Although it is impossible to say with any certainty that the program is an organization devoted to the improvement of the law, the legal system , or the administration of justice, prior opinions of this Committee suggest that the visitiation program would probably be viewed in this light. More likely than not, the existence of such a supervised visitation facility will assist family division judges in making visitation decisions in difficult cases. Even if a doubt exists under Canon 4D, the program would most likely qualify as a charitable organization not conducted for profit. Presumably this criterion would have already been satisfied in order to secure funding from The Florida Bar.
A family division judge may serve on this board of directors. It would be up to the judge, however, to closely monitor the activities of the program in order to ensure that the program and its employees or volunteers are not becoming involved frequently in litigation, either as parties, or as witnesses in ongoing custody or visitation disputes. Should such a development occur, future service on the board would be inadvisable. A fee charged to defray the cost of operation to the supervised facility would not disqualify judge from serving on the board. Any judge serving on this board must, however, that any judge serving on this board must ensure that service not cast doubt on the judge's capacity to decide impartially any issue that may come before the judge (sic).
Four Committee members, including the chairman, reluctantly approve the view that no ethical prohibition exists to the activity in question. One of these concurring members quite prudently noted that judges may place themselves in precarious postitions "when they exercise control over hotbeds of domestic programs which will certainly, and regularly, result in judicial activity." Another concurring member found that this activity involves an "unneccessary minefield for judges to manuever."
The 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 issued by the committee. Petition of the Committee on Standards of Conduct for Judges, 327 So.2d 5 (Fla.1976).
Dated the 7th day of May, 1997.
Charles J. Kahn, Jr.
Chairman, Committee on Standards of Conduct Governing Judges
Participation Members: Judges Dell, C. Kahn, L. Kahn, Patterson, Rushing, Silverman, Tolton and Attorney Novicki
cc: All Committee Members
Office of the State Courts Administrator
Justice Charles T. Wells (name of judge deleted from this copy)