Opinion Number: 98-12
Date of Issue: July 7, 1998
PART-TIME CHILD SUPPORT ENFORCEMENT HEARING OFFICER SITS IN FIVE OF THE SIX COUNTIES OF THE CIRCUIT; IN SIXTH COUNTY, HEARING OFFICER DOES HAVE PRIVATE PRACTICE THAT INCLUDES FAMILY LAW BUT HAS NO CURRENT REGULAR HEARING OFFICER DUTIES; HEARING OFFICER DOES OCCASIONALLY COVER FOR FULL-TIME HEARING OFFICER IN SIXTH COUNTY
May a part-time child support hearing officer who performs hearing officer duties in five counties of a circuit practice family law in the sixth county of the circuit? ANSWER: No. It is inappropriate for the child support enforcement-hearing officer to continue in this capacity.
Does the chief judge of the circuit have a duty to change the status of that position? ANSWER: Yes. The chief judge has a duty to alter the status of that position. One committee member notes that it is not within the committee's province to direct the chief judge in the specific manner in which the issue is addressed
A chief judge inquires whether a part-time child support enforcement hearing officer who performs hearing officer duties in five counties of the circuit can practice family law in the sixth county of the circuit, and if not, whether the chief judge of that circuit has an affirmative duty to take any action. The hearing officer does occasionally provide coverage in the sixth county when the full-time hearing officer is not available and may in the future have regular hearing officer duties in the sixth county one day a week to provide additional support for the full-time hearing officer.
The Department of Revenue contract attorneys for the sixth county do not cover the other counties in the circuit in that capacity but do have an occasional private practice case in those five counties and many of the private practice attorneys in the sixth county also have private practice cases representing clients in the other counties of the circuit. It is possible that the part-time child support enforcement hearing officer may be opposing counsel to the same private practice attorneys in the sixth county that may appear before the officer as counsel for parties in child support enforcement cases in other counties.
In Opinion 95-8, the Committee stated that the Application Section of the Code of Judicial Conduct indicates that the Code is applicable to child support hearing officers and concluded it would therefore apply to part-time child support hearing officers. The Committee found that conflicts of interest could easily arise where a substitute hearing officer presides over cases litigated by attorneys with whom the officer may later be in an adversarial position in other cases. This situation could have a "chilling effect" on attorneys that regularly appear before the substitute hearing officer that would result in different treatment of the part-time hearing officer. The Committee further reasoned that there could be "a corresponding pressure upon substitute hearing officers to make favorable rulings for those attorneys that appear before them in the hope of receiving less aggressive treatment or certain advantages in negotiations where they are adversaries." The Committee advised that hearing officers should follow the example of traffic magistrates and not practice law in the same court or forum where they preside. The Committee also pointed out the commentary to Canon 3E(1), which states that "a judge is disqualified whenever the judge's impartiality might reasonably be questioned, regardless of whether any of the specific rules in Section 3E(1) apply."
In Opinion 96-12, a part-time general master/support enforcement-hearing officer asked whether he could continue to practice family law as long as he did not appear before another general master, support enforcement hearing officer, or circuit judge. The Committee noted that it appeared that the hearing officer contemplated practicing in the same circuit in which he presided. The Committee, relying on Opinion 95-8, found that part-time child support hearing officers should not practice law in the same court or forum in which they preside.
The reasoning of Opinions 95-8 and 96-12 applies to this inquiry. Accordingly, the part-time child support enforcement officer should not practice family law in the sixth county of the circuit.
The Application Section of the Code of Judicial Conduct provides that any judge responsible for a person who performs a judicial function should require compliance with the applicable provisions of this Code. If the chief judge is responsible for this part-time child support enforcement hearing officer, then he should take appropriate action to assure the part-time child support enforcement hearing officer's compliance with the Code.
One committee member notes, while agreeing with the conclusions reached in this inquiry, that "it is not within the Committee's province to direct the chief judge in the specific manner in which the issue is addressed."
Two members of the committee, while fully agreeing with this opinion state, "[We] continue to believe that this Committee should, at every appropriate instance express the view that a part-time judiciary is not consistent with the Code of Judicial Conduct, particularly where part-time judges propose to continue their law practice while not on the bench."
Florida Code of Judicial Conduct: Application Section of the Code of Judicial Conduct and Canon 3E(1).
Florida Judicial Ethics Advisory Committee Opinions 95-8 (January 12, 1995) and Opinion 96-12 (May 15, 1996).
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 Cardonne, Dell, Charles J. Kahn, Lisa D. Kahn, Patterson, Rodriguez, Rushing, Silverman, Tolton and Attorney Blanton
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)