Friday, October 7, 2022
An elected judge may not employ a spouse as the judicial assistant according to the Florida Judicial Ethics Advisory Committee
The inquiring judge’s judicial assistant position is vacant. The judge asks whether the Code of Judicial Conduct would allow the judge to hire the judge’s spouse as the judicial assistant.
That's a "no"
The inquiring judge maintains that since the Legislature did not include “judge” under the example of public officials covered under §112.3135(1)(c), the judge is not subject to the Statute’s prohibition. The inquirer feels Fla. JEAC Op. 15-09 wrongly assumed that a judge was covered by the Statute. The inquirer’s interpretation of the application of the Statute is not correct. It is clear that the above Statute applies to any “office, agency, or other establishment in the judicial branch.” § 112.3135(1)(a)(3), Florida Statutes. When the Florida Statutes refer to an “office or officer,” such reference “includes any person authorized by law to perform the duties of such office.” § 1.01(6), Florida Statutes (emphasis added). Additionally, Article V, § 8 of the Florida Constitution provides that “[n]o person shall be eligible for office of justice or judge of any court unless...” Therefore, a judge is unquestionably an officer of the judicial branch. As such judges qualify as “an officer ... in whom is vested the authority by law, rule, regulation ... to employ ...” § 112.3135(1)(c), Florida Statutes. Moreover, the Legislature’s choice to use the word “including” to list some of the “officers” to whom the definition of “public official” applies, does not mean that other persons or entities, like judges, would be excluded. “Generally, it is improper to apply expressio unius to a statute in which the Legislature used the word ‘include.’ [citations omitted]. This follows the conventional rule in Florida that the Legislature uses the word ‘including’ in a statute as a word of expansion, not one of limitation. [citations omitted].” White v. Mederi Caretenders Visiting Service of Southeast Florida, LLC, 226 So. 3d 774, 781 (Fla. 2017).
Lastly, independent of the above discussed statute, Canon 3C(4), Florida Code of Judicial Conduct, clearly prohibits the inquirer from employing the spouse as the judicial assistant. This Canon requires judges to “avoid nepotism and favoritism.” The commentary to Canon 3C(4) specifically lists “secretaries” as a type of appointee the judge should refrain from appointing or employing if nepotism would be involved. And to make it very clear that this Canon’s prohibition is analogous with the above statute, the Commentary to Canon 3C(4) alerts judges to “see also Florida Statute § 112.3135 (1991).” Therefore, judges are prohibited from employing or appointing any relatives and are subject to the prohibitions contained in Florida Statute § 112.3135 (1991).