FLORIDA SUPREME COURT
COMMITTEE ON STANDARDS OF CONDUCT GOVERNING JUDGES

OPINION 97-27


Date Issued: September 3, 1997

 

SUBJECT
Judge accepting an honorary membership in a military officers' club that is also offered to all judge within the same circuit.

ISSUE
May a judge accept an honorary membership in a United States Air Force Officers' Club that is also offered to all judges within the same circuit?

Answer: According to six members of the Committee, a judge may accept a gift in accordance (sic) the exceptions articulated in Canon 5D(5) of the Code of Judicial Conduct; however a presentation of the same gift to all judges in the same area or court would preclude ethical acceptance of the gift. One member of the Committee does not find any ethical impropriety in accepting the membership under the circumstances set forth herein.

FACTS
The inquiring judge received an unsolicited honorary membership to a United States Air Force Officers' Club from the Base Commander. The inquiring judge understands that the honorary membership is presented to all judges, and most probably all local public officials.

The membership, among other things, entitles the judge and his guests to use the club's dining facilities, as well as the base golf course. Any costs incurred by the judge on the base are the same as military members of the Officers' Club.

The only contact the Air Force Base has with the court system is through its base personnel, who like other local and area citizens are involved in all facets of litigation in the state courts.

DISCUSSION
The inquiring judge questions whether he may ethically accept an "honorary membership" to a United States Air Force Officers' Club. He notes that the "honorary membership" is conferred upon all members of the judiciary in his circuit is most probably all local public officials.

Canon 5 of the Code of Judicial Conduct regulates a judge's extrajudicial activities so as to minimize the risk of conflict with his or her judicial duties. Specifically, Canon 5F(5)(h) provides:

A judge shall not accept, and shall urge members of the judge's family residing in the judge's household not to accept, a gift, bequest, favor or loan from anyone except for:

(h) any other gift, bequest, favor or loan, only if the donor is not a party or other person who has come or is likely to come or whose interests have come or are likely to come before the judge; and, if its value exceeds $100, the judge reports it in the same manner as the judge reports compensation in Section 6B.

The general rule of Canon 5 is that judges are not to accept gifts. Nevertheless, the Canon delineates eight subsections of exceptions to the general rule.

The Committee has previously exercised its authority and addressed judicial inquiries into the ethical propriety of judges accepting gifts. See, Opinion 84-4 ( A judge may accept a free membership in a county bar association.); Opinion 83-5 (While a judge may accept an "honorary membership" to a club, he may not do so if the membership is presented to the judiciary or other public officials as a whole); Opinion 78-17 (A judge may not accept from a city a reduced rate golf course membership.); Opinion 77-20 (A majority of the Committee concluded that a judge may accept complimentary tickets for a testimonial dinner.); and Opinion 74-9 (A waiver of a membership fee of a ascertainable amount should be reported as a gift.) While these prior opinions interpreted Canon 5C(4)(c), which is the predecessor to the current Canon 5D(5)(h), they are nevertheless helpful in responding to the inquirer's query.

In Opinion 78-17, a judge requested an opinion on whether he could ethically accept a golf course membership from the City of Miami Beach at half the fee normally charged to city residents. The City's policy was to charge the public officials the reduced rate.

A majority of the Committee agreed that the inquiring judge was ethically precluded from accepting the reduced membership fee. A minority of the Committee stated that there was no prohibition, per se, and raised a caveat that the membership should be reported as a gift. Several Committee members noted that the interests of the City of Miami Beach might likely come before the judge in the immediate future.

In Opinion 83-5, the inquiring judge queried whether he could ethically accept an "honorary membership" and the resulting fee waiver to a yacht club. The yacht club gave "honorary membership" to public official in the judge's county. The membership entitles the officials to use of the club facilities, but the member was required to pay for any consumed food or drinks.

The Committee unanimously held that the Code of Judicial Conduct prevented acceptance of the "honorary membership." Had the membership been offered individually to the judge, rather than all judges, acceptance of the gift might have been ethically permissible. The Committee reasoned.

It is a different story, however, when all judges, or all public officials, are so favored. An individual gift, to an individual judge is proper. There is impropriety when all judges in an area or on a court are given a free membership, or any other gift. It really does not matter whether the donor is a city, a private club, or private individual. Friendship is not the motive for the gift in those cases. It is simply an attempt to curry favor with the court or other public officials, or to garner the prestige of those offices. In the case of a yacht club or county club, the fee (sic) [Editor's note: "free" in original] memberships present the appearance that the donor has the ear of the public official. The gifts of membership convey the impression to the rest of the community that membership in the club presents the opportunity to hob-nob with public officials and to bask in their favor. It is a dubious proposition that this is acceptable for the other branches of government. It is simply not permitted [in] the judiciary. [Editor's note: emphasis not in original]

The fact that the memberships are offered to all public officials in no wise dilutes the suggestion of impropriety. It is precisely the inclusion of every public official that is the attempt to curry favor or garner the prestige of the office.

To be distinguished are the 'memberships' offered state, county and municipal employees at various attractions such as Disney World, Sea World, etc. These allow reduced entrance fees and discounts, etc. Inasmuch as these are available to employees as well as officials, to the janitor who empties the judge's waste basket, as well as the judge, it cannot be said there is any attempt to garner the prestige of the office or to curry favor. The members did not see any impropriety in a judge accepting these benefits.

One participating Committee member in Opinion 83-5, noted that the result in Opinion 78-17 might have been different but for the fear that the City of Miami Beach would be a frequent litigant before the judge.

Therefore, a judge may accept a gift, bequest, favor or loan, pursuant to Canon 5D(5)(h) of the Code of Judicial Conduct, only if:

1.the donor is not a party or other person who has come or is likely to come or whose interests have come or are likely to come before the judge;

2.its value exceed $100, the judge reports it in the same manner as the judge reports compensation in Section 6B; and

3.the donor makes the presentation to an individual judge, rather that all the judges in the same area or court.

The inquiring judge in the matter presently before the Committee, clearly states that the membership to the Officers' Club is presented to all judges, and most probably all local public officials. Under these circumstances alone, membership is ethically precluded. See, Opinion 83-5.

One member of this Committee dissents noting that "the gift" in this case is simply access to the facilities of the officer's club and not a waiver of any fee. On these limited facts, I do not see any ethical problem with either Canon 2 or Canon 5. That member further states, "I would allow the inquiring judge to accept the privilege with the caveat that should he have any indication that Canon 2B or Canon 5 are being violated, he should extricate himself."

This committee hereby recedes from Opinion 92-15a.

REFERENCES
Florida Code of Judicial Conduct, Canon 5D and 5D(5)(h).

Florida Judicial Ethics Advisory Committee, Opinions 74-9 (August 2, 1974); 77-20 (January 11, 1978); 78-17 (August 16, 1978); 83-5 (May 16, 1983); 84-4 (April 2, 1984); 92-15a (March 26, 1992)

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 Governing Judges, 327 So. 2d 5 (Fla. 1976). For further information contact The Honorable Scott Silverman, Chairman, Committee on Standards of Conduct Governing Judges, The Richard E. Gerstein Justice Building, 1351 NW 12th Street, #513, Miami, Florida 33125


Participating Members: Judges Green, Charles J. Kahn, Lisa D. Kahn, Patterson, Rushing, Silverman and Attorney Novicki

Copies furnished to:
All Committee Members
All members of the J.Q.C.
Justice Charles T. Wells
Office of the State Courts Administrator (name of judge deleted from this copy)