FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2019-33
Date of Issue: November 22, 2019

ISSUE

May a senior judge subject to recall serve as a county hearing officer regarding contract bid protest proceedings?

ANSWER: Yes.

FACTS

The inquiring senior judge presently serves occasionally as a judge in certain criminal and family law divisions, and would also like to serve as a hearing officer or hearing examiner regarding bid protests related to certain county contracts and leases. The relevant county ordinance sets forth the procedures for the bid protest process and identifies the duties of the hearing officers who are compensated by the county and selected for a particular protest case by the clerk of the board of county commissioners from a panel consisting largely of retired judges. The inquiring senior judge anticipates that serving as a hearing officer would be infrequent and would not interfere with serving as a senior judge in terms of availability.

 

DISCUSSION

We addressed a similar inquiry in Fla. JEAC Op. 85-03, where we held that a senior judge was not prohibited from serving as an arbitrator or hearing examiner for a local county government. In JEAC Op. 95-33, we concluded that a senior judge could serve as a hearing officer for a local city. The wording of the Code of Judicial Conduct has evolved since our committee last wrote on this topic; however, the applicable concepts of what is prohibited or permitted regarding this particular type of service is unchanged.

We similarly opine that the inquiring senior judge may serve as a hearing officer or hearing examiner regarding bid protests related to certain county contracts and leases pursuant to the relevant county ordinance. Our opinion is grounded in the specific language of the Code of Judicial Conduct which excepts senior judges from the prohibition of Canon 5C(2) of the Code, which prohibits judges from serving as hearing officers. See Fla. Code Jud. Conduct, Application of the Code of Judicial Conduct, B(1).

Fla. Code Jud. Conduct, Canon 5C(2) would prohibit a judge from serving as a county hearing officer, as that forbids accepting an appointment to a governmental position concerned with issues of fact or policy on matters unrelated to the improvement of the law, the legal system, the judicial branch, or the administration of justice; however, that section is specifically inapplicable to senior judges.

Based upon the information provided by the inquiring senior judge, serving as a county hearing officer or examiner would not involve the provision of arbitration, mediation, or voluntary trial resolution services in the circuit where the senior judge presides, nor would it constitute the practice of law, all of which are prohibited by Fla. Code Jud. Conduct, Application of the Code of Judicial Conduct, B(1) and Canon 5F(2).

Canon 6A, regarding compensation for quasi-judicial and extrajudicial services, similarly does not apply to senior judges. Fla. Code Jud. Conduct, Application of the Code of Judicial Conduct, B(1). Of course, while performing as a hearing officer or examiner, the senior judge shall comply with Canon 5A and such other provisions of the Code that do apply to senior judges.

 

REFERENCES

Fla. Code Jud. Conduct, Canon 5A, 5C(2), 5F(2), 6A
Fla. Code Jud. Conduct, Application
Fla. JEAC Ops. 95-33, 85-03

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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 of the committee.   See Petition of the Committee on Standards of Conduct Governing Judges, 698 So. 2d 834 (Fla. 1997). However, in reviewing the recommendations of the Judicial Qualifications Commission for discipline, the Florida Supreme Court will consider conduct in accordance with a Committee opinion as evidence of good faith. See id.

The Committee expresses no view on whether any proposed conduct of an inquiring judge is consistent with substantive law which governs any proceeding over which the inquiring judge may preside. The Committee only has authority to interpret the Code of Judicial Conduct, and therefore its opinions deal only with whether the proposed conduct violates a provision of that Code.

For further information, contact Judge W. Joel Boles, Judicial Ethics Advisory Committee Chair, First Circuit M.C. Blanchard Judicial Building, 190 Governmental Center, 6th Floor, Pensacola, FL 32502 or JEAC@flcourts.org.

Participating Members:
Judge Michael Andrews, Judge Roberto Arias, Judge Nina Ashenafi-Richardson, Judge W. Joel Boles, Judge Miguel de la O, Judge James A. Edwards, Judge David Green, Mark Herron, Esquire, Judge Jeffrey T. Kuntz, Judge Matthew C. Lucas, Judge Michael Raiden, and Charles Reynolds, Esquire.

All Judicial Ethics Advisory Committee opinions, subject matter indices, and a search engine are available on the Sixth Circuit’s website at www.jud6.org under Opinions. Committee opinions and related finding tools are also accessible on the Florida Supreme Court’s website at www.floridasupremecourt.org as a secondary posting under Court Opinions.


Copies furnished to:
Inquiring judge (Name of the Inquiring Judge deleted)
Chief Justice Charles T. Canady, Justice Liaison
John A. Tomasino, Supreme Court Clerk
All Committee Members
General Counsel of the J.Q.C.
Melissa Hamilton, Staff Counsel