Opinion Number: 97- 31
Date of Issue: 10/28/1997
JUDGE SERVING ON THE BOARD OF DIRECTORS OF AN ORGANIZATION WHICH OPERATES A D.U.I. COUNTERMEASURES SCHOOL AND ADMINISTERS PROBATION SERVICES
May a judge ethically serve on the Board of Directors of the C.O.R.E. (Comprehensive Offender Rehabilitation and Education) Program that operates a D.U.I. Countermeasures School and provides probation services for all misdemeanor offenses? ANSWER: No. While a judge may serve as a member of the Board of Directors of a D.U.I. Countermeasures School, the judge may not do so if the organization also administers probation services.
The C.O.R.E. (Comprehensive Offender Rehabilitation and Education) Program is a not for profit Florida corporation which originally began providing services for educational classes for D.U.I. offenders in 1993. It eventually evolved into the circuit's D.U.I. Countermeasures School, which is run by the C.O.R.E. Program. Additionally, the C.O.R.E. Program provides probation services for misdemeanor offenders.
Among the current membership of the Board of Directors is one judge from each of the circuit's four counties, as well as one circuit judge.
The inquiring judge expresses a concern over whether the judges' membership on the Board of Directors is consistent with the dictates of the Code of Judicial Conduct.
Canon 4D (formally 4C) of the Code of Judicial Conduct provides:
A judge may serve as a member, officer, director, trustee or non-legal advisor of an organization or governmental agency devoted to the improvement of the law, the legal system or the administration of justice.
On May 21, 1986, the Florida Supreme Court held that a judge's service on a D.U.I. school board was the type of organized activity contemplated by the Canon 4C (currently 4D). The Court noted that both it and the judges of the county court helped to organize the D.U.I. schools to effectively deal with the problem of alcohol and driving. The Court specifically rejected our Committee's Opinion 86-8, in which a majority of the members suggested that service on a D.U.I. school board by a county court judge might be proscribed by the Code. See also, Opinion 93-23 (A judge may serve as an unpaid member of the board of directors of a local D.U.I. Countermeasures School.).
The Code does not preclude a judge from serving as a member of the Board of Directors of a D.U.I. Countermeasures School. However, the C.O.R.E. Program is not just a D.U.I. Countermeasures School. The inquiring judge supplied a brochure which demonstrates that the C.O.R.E. Program also establishes Probation Services; a Victim Impact Panel; Alcohol & Substance Abuse Programs; Pre-trial Drug Intervention; Domestic Violence Intervention; Private Industry; a D.A.T.E. Program; a Child Restraint Offender Program; and an HIV/AIDS Awareness Program.
While Canon 4 permits a judge to engage in activities to improve the law, the legal system, and the administration of justice, it is not unlimited. Canon 4D(1)(a) and (b), provide:
A judge shall not serve as an officer, director, trustee or non-legal advisor if it is likely that the organization
It is abundantly clear that matters involving probation are the types of proceedings contemplated and proscribed by Canon 4D (1)(a) and (b). Probation violations are a frequent occurrence before criminal court judges. These proceedings are frequently adversarial, in which the probation officer is usually seeking to impact a defendant's probationary status. Since these matters ordinarily come before the judges, it follows that it would be improper for them to continue their service as members of the C.O.R.E. Program's Board of Directors. See also, Opinion 81-6 (A judge may not accept a position on the State's Parole and Probation Commission Qualification Committee.).
Canon 4D(1)(a) and (b) Code of Judicial Conduct.
Opinion 93-23 (April 19,1993); Opinion 81-6 (May 22, 1981).
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 by the Committee. Petition of the Committee on Standards of Conduct Governing Judges, Opinion No. 90,133 (Fla. September 4, 1997). However, in reviewing the recommendations of the Judicial Qualification Commission for discipline, the Florida Supreme Court will consider conduct in accordance with a Committee opinion as evidence of good faith. Id.
For further information, contact The Honorable Scott J. Silverman, Chairman, Judicial Ethics Advisory Committee, The Richard E. Gerstein Justice Building, 1351 NW 12th Street #513, Miami, Florida 33125.
Participating Members: Judges Dell, Green, Charles J. Kahn, Lisa D. Kahn, Patterson, Rushing Silverman, Smith, and Attorney Novicki
Copies furnished to:
Justice Charles T. Wells
All Committee Members
All Members of the J.Q.C.
Office of the State Courts Administrator
(Name of judge deleted from this copy)