Opinion Number: 98-4
Date of Issue: March 17, 1998
JUDGE EMPLOYING NIECE-IN-LAW AS A JUDICIAL ASSISTANT
May a judge hire his/her niece-in-law as the judge's judicial assistant? ANSWER: Yes. A judge is not engaged in ethically prohibited nepotism if he or she appoints or employs his or her niece-in-law as a judicial assistant. So long as the employment of the niece-in-law is based on her abilities and merits, and not favoritism or her relationship with the judge, her employment as the judge's judicial assistant is proper.
The inquiring judge intends to hire a new judicial assistant in the near future. The judge questions whether the Code of Judicial Conduct prohibits him from hiring his niece-in-law, i.e. the judge's nephew's wife, as his new judicial assistant.
Canon 3 of the Code of Judicial Conduct is entitled "A Judge Shall Perform the Duties of Judicial Office Impartially and Diligently." Canon 3C(4) of the Code states:
A judge shall not make unnecessary appointments. A judge shall exercise the power of appointment impartially and on the basis of merit. A judge shall avoid nepotism and favoritism. A judge shall not approve compensation of appointees beyond the fair value of services rendered. [Emphasis added]
The Commentary to Canon 3C(4) explains, by example, the meaning of the Section. It provides:
Appointees of a judge include assigned counsel, officials such as referees, commissioners, special masters, receivers, mediators, arbitrators, and guardians and personnel such as clerks, secretaries, and bailiffs. Consent by the parties to an appointment or an award of compensation does not relieve the judge of the obligation prescribed by Section 3C(4). See also Fla.Stat. §112.3135 (1991).
The Preamble to the Code of Judicial Conduct describes the significance of the Canons, Sections, Commentaries, and Definitions of the Code. While the text of the Canons, Sections, and Definitions are authoritative, the Commentaries are not. See, The Preamble to the Code of Judicial Conduct. The Commentary provides guidance with respect to the purpose and meaning of the Canons and Sections. Id. It is not intended as statement of additional rules. Id.
A judge must therefore satisfy certain ethical requirements before hiring a judicial assistant. The judge's selection must be made impartially and on the basis of merit, while at the same time avoiding nepotism and favoritism.
Neither the Canons, Sections nor Definitions of the Code of Judicial Conduct define the term "nepotism." However, the Commentary to Canon 3C(4) is helpful by referring to F.S. §112.3135 (1991).
F.S. §112.3135 is Florida's anti-nepotism law. The law is a civil statute of a penal nature. See, Kinzer v. State, 654 So.2d 1007, 1008 (Fla. 3d DCA 1995). It prohibits, in pertinent part, public officials from appointing or employing their relatives in or to positions within most state, county, or city agencies. The judicial branch is defined as an agency subject to the anti-nepotism law. See, F.S. §112.3135(1)(a)(3).
F.S. §112.3135(1)(c) defines the term "relative." The definition specifies those relatives of public officials who are subject to the anti-nepotism law. The definition follows:
"Relative," for purposes of this section only, with respect to a public official, means an individual who is related to the public official as father, mother, son daughter, brother, sister, uncle, aunt, first cousin, nephew, niece, husband, wife, father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, stepfather, stepmother, stepson, stepdaughter, stepbrother, stepsister, half brother, or half sister.
The legislature did not include a "niece-in-law" within the definition of the term, "relative."
The statutory rule of construction, expressio unius est exclusio alterius, is applicable to our opinion. The rule states that the mention of one thing implies the exclusion of another. Thus, where a statute enumerates the things on which it is to operate, it is ordinarily construed as excluding from its operation all those not expressly mentioned. James v. Department of Corrections, 424 So.2d 826, 827 (Fla. 3d DCA. 1982).
Florida's anti-nepotism law does not include a "niece-in-law" within the definition of a "relative." By applying the previously stated rule of construction, this Committee concludes that the legislature intended to exclude a "niece-in-law" from operation of the anti-nepotism law.
Our opinion is further supported by Florida Attorney General Opinion 070-71 (June 16, 1970), which construed F.S. §116.111 (1969), the predecessor to F.S. §112.3135. In that opinion, the Attorney General of the State of Florida opined that the anti-nepotism statute does not apply to and prohibit the employment of a nephew-in-law of the employing official.
Accordingly, a judge is not engaged in ethically prohibited nepotism if he or she appoints or employs his or her niece-in-law as a judicial assistant. Such conduct does not violate the Code of Judicial Conduct.
However, this Committee cautions the inquiring judge that the employment of his niece-in-law must be based on her abilities rather than her relationship with the judge. See, Georgia Judicial Ethics Advisory Opinion: 86 (July 28, 1986). So long as the appointment is based on merit rather than nepotism or favoritism, it is proper. See, Alabama Judicial Ethics Advisory Opinion 78-33 (1978).
Florida Statutes: F.S. ß112.3135 (1991) and F.S. ß116.111 (1969)
Florida Cases: Kinzer v. State, 654 So.2d 1007 (Fla. 3d DCA 1995) and James v. Department of Corrections, 424 So.2d 826 (Fla. 3d DCA. 1982).
Florida Code of Judicial Conduct: Canons 3; Canon 3C(4); and The Preamble to the Code of Judicial Conduct.
Opinions of the Florida Attorney General: Florida Attorney General Opinion 070-71 (June 16, 1970)
Judicial Ethics Advisory Committee Opinions from sister states: Georgia Judicial Ethics Advisory Opinion: 86 (July 28, 1986) and Alabama Judicial Ethics Advisory Opinion 78-33 (1978).
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 Charles J. Kahn, Lisa D. Kahn, Patterson, Rushing, Silverman, Smith, 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)