SUBJECT: Judge's service on the governing board
of a statutory Children's Services Council
and on the county Criminal Justice Commission;
construction of Canons consistent with statute

The inquiring judge has been designated by his chief judge to serve on the governing board of his county's Children's Services Council. This council, and others around the state, are authorized by section 125.01, Florida Statutes. The inquiring judge observes that although certain programs of the council concern the "administration of justice" (funding of certain legal aid and guardian as litem programs), the council is also concerned with other policy matters relating to children's needs and services. The judge also notes that the statute at section 125.901(a) establishes the governing board, which shall include "the judge assigned to juvenile cases...".

The inquiring judge has also been designated by his chief judge to serve on the County Criminal Justice Commission in his capacity as a juvenile judge. The County Criminal Justice Commission has been created by county ordinance. According to the ordinance, the Criminal Justice Commission is to study all aspects of the criminal justice and crime prevention system within the county. The Commission is to then make recommendations to the board of county commissioners on policies and programs designed to accomplish certain objectives. According to the ordinance, the Commission has broad powers to review and comment on grant requests for programs and systems, and also to make recommendations concerning programs, legislation and ordinances.

The inquiring judge asks whether appointment to either of these commissions violates canon 5C(2)

Service on the County Criminal Justice Commission is not prohibited by the Code of Judicial Conduct. The inquiring judge should be guided by the terms of Canon 5C(2) provided that a judge may accept appointment to a commission that is concerned with the improvement of the law, the legal system, or the administration of justice. In Opinion 87-20, the committee approved service on a county criminal justice advisory board established to qualify for federal assistance in the study and planning of a new jail facility. In prior opinions, the Committee has approved service on an alcohol, drug abuse, and mental health district planning council (Ops. 88-24, 88-30); on the board of directors of a DUI countermeasure school (Op. 93-23); in an advisory capacity on the regional juvenile detention center's community advisory board (Op. 94-04); and as a member of a district juvenile justice board (Op. 94-31).

The Children's Services Council is a creature of statute. The Legislature has directed that in every case where a county by ordinance creates an independent special district to provide funding for children services, the district shall be governed by a Children's Services Council, and the juvenile judge shall sit as a voting member of the board. The only exception to the judge's full participation, as provided by the statute, is that a judge "shall not vote or participate in the setting of as valorem taxes..." Section 125.901(1)(a), Fla. Stat.

At least three prior Committee opinions have dealt with section 125.901 and the Children's Services Councils. In Opinion 90-24, the Committee stated that a judge could publicly support the passage of a law creating a special taxing district for child welfare under section 125.901. In this opinion, the Committee noted that it was "not entirely comfortable with the role of a judge as public advocate for passage of local legislation of this sort." The opinion does not note that the very statute it was looking at required a judge to serve as a member of the governing board in the event the voters approved the special taxing district.

In Opinion 91-02, a judge again asked if he could speak on behalf of the establishment of a Children's Services Council in his county "as authorized by F.S. 125." Without any mention of Opinion 90-24, the Committee unanimously agreed that the judge could do so provided "the program is law related" and the judge does not become active in any fund raising aspect. The Committee noted that the judge could perform a valuable service by explaining the need for such a program without emphasizing the tax consequences.

In Opinion 92-11, the inquiring judge was already serving as a member of the statutorily created Children's Services Council of his county. The judge asked whether he could vote on request for funding "where many of the organizations seeking funding are regularly involved in cases" before the judge. The Committee found that the judge would be faced "with a definite conflict of interest any time one of these organizations requests funding from the council." Accordingly, the judge acted appropriately in refusing to vote in all instances in which the judge perceived a conflict. Once again, this opinion addresses neither the statutory mandate that a judge serve on the council, not the ethical propriety of such service.

In many ways, the special districts established in section 125.901, and governed by the Children's Services Councils, look very much like governmental authorities possessed of taxing and spending power. The districts may be established by local ordinance, and once established, are coterminous with the boundaries of the county. The statute further provides that the governing body of the county shall obtain approval by voter referendum to levy ad valorem taxes in order to fund the district. As mentioned above, the statute excepts the juvenile judge member from participation in the setting of ad valorem taxes.

Under section 125.901(2)(a), the Legislature has delegated rather extensive powers to the Children's Services council. These powers are as follows:

(2)(a) Each council on children's services shall have all of the following powers and function:

1. To provide and maintain in the county such preventive developmental, treatment, and rehabilitative services for children as the council determines are needed for the general welfare of the county.

2. To provide such other services for all children as the council determines are needed for the general welfare of the county.

3. To allocate and provide funds for other agencies in the county which are operated for the benefit of children, provided they are not under the exclusive jurisdiction of the public school system.

4. To collect information on statistical data and to conduct research which will be helpful to the council and the county in deciding the needs of children in the county.

5. To consult and coordinate with other agencies dedicated to the welfare of children to the end that the overlapping of services will be prevented.

6. To lease or buy such real estate, equipment, and personal property and to construct such buildings as are needed to execute the foregoing powers and functions, provided that no such purchases shall be made or building done unless paid for with cash on hand or secured by funds deposited in financial institutions. Nothing in this subparagraph shall be construed to authorize a district to issue bonds of any nature, not shall a district have the power to require the imposition of any bond by the governing body of the county.

7. To employ, pay, and provide benefits for any part-time or full-time personnel needed to execute the foregoing powers and functions.

Looking at the statutory powers in an objective light, it appears that the council functions as a governmental body that provides services, allocates funds, administers a full-time or part-time staff, and purchases, maintains, and administers real estate, equipment and personal property. It is almost as if a shadow county commission has been created and delegated sole responsibility for children's services within the county. One could thus argue that service on such a commission would run directly afoul of Canon 5C(2) prohibiting a judge from serving on a governmental commission that is concerned with issues of fact or policy, other than improvement of the law, the legal system, or the administration of justice. Nevertheless, the preamble to the Florida Code of Judicial Conduct states:

The Canons and Sections are rules of reason. They should be applied consistent with constitutional requirements, statutes, other court rules and decisional law and in the context of all relevant circumstances.

Considering the Legislative mandate, as well as the preamble requirement that the Canons should be applied consistent with statutes, the Committee has determined that the Code of Judicial Conduct does not prohibit service on the council. The committee does, however, reiterate the concern expressed in Opinion 92-11 that the judge should abstain from voting in all instances in which he perceives a conflict. It is impossible for the Committee to forecast when and where such conflicts will arise. Accordingly, any judge serving on such council must make individual decisions based upon Canon 1, Canon 2 and Canon 5. The practical effect of requiring abstention may be that the judge will serve basically as an advisory member of the council. The Committee, of course, expresses no opinion as to whether a particular judge may be required, pursuant to statute, to serve on the Children's Services council against the judge's personal inclinations.

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 18th day of July, 1997.

Charles J. Kahn, Jr.
Chairman, Committee on Standards of Conduct Governing Judges

Participation Members: Judges Dell, Green, C. Kahn, L. Kahn, Patterson, Rushing, Silverman, Smith and Attorney Novicki

cc: All Committee Members
Office of the State Courts Administrator
Justice Charles T. Wells (name of judge deleted from this copy)