Tuesday, February 5, 2019

Judicial Discipline and Being Aware

On January 29, 2019 the Florida Supreme Court issued a decision in In re Judge Maria Ortiz, Case No.: SC18-674. This case involved gifts or gratuities to a Florida county court judge. There were also issues regarding reporting of gifts on disclosure forms. In Florida, the Judicial Qualifications Commission (JQC) investigates complaints regarding constitutional judges. The Commission, its membership, and authority are set forth in the Florida Constitution, Article V., Section 12

In May, 2018, the Commission issued Findings and Recommendations. The Commission concluded "Judge Ortiz’s lack of awareness as to her personal finances allowed a situation to arise wherein she was the recipient of several substantial gifts which she then failed to identify and disclose as required by the Canons." The "Canons" are sections of the Florida Code of Judicial Conduct. These Canons provide both mandates and guidance to judges regarding their duties and obligations. 

The Commission website describes that Judge Ortiz failed "to properly disclose several occasions in which she and her husband received free hotel accommodations from the RIU Hotel Group." Those "complimentary accommodations were allegedly provided to Judge Ortiz’s husband, Mariano Fernandez, as part of an unlawful compensation scheme involving his position as Building Director for the City of North Miami Beach." Judge Ortiz was not charged with criminal conduct. However, she did not disclose these "free hotel stays" on the "financial disclosures" that all judges must file annually. 

The Commission and Judge Ortiz entered a stipulation, which was considered by the Supreme Court in June 2018. This stipulation memorialized a hotel stay "free-of-charge in an Ocean Front double room," "a complimentary food basket and bottle of wine, " a "free-of-charge, (stay) in a standard Jacuzzi suite," "a special excursion, a trip to the VIP area of the famous Coco-Bongo Show and Disco (provided free of charge)," "an Ocean Jacuzzi Suite" in "Playa del Carmen," discounted "room and board," and another "VIP trip to the Coco-Bongo Show and Disco." 

The stipulation was that the Judge would amend her financial disclosure forms, and would from then on "prepare by herself, or with the assistance of a CPA, all future required disclosure forms." The Court entered a June 8, 2018 order in which it rejected the stipulation, "disapprove(d) the proposed sanction," and ordered "a full hearing before the Judicial Qualifications Commission in order to fully develop the facts regarding any misconduct that occurred." 

In October 2018, the Commission and Judge Ortiz entered a second stipulation. In it, they agreed that in 2015 and 2016 the Judge's husband was provided trips "free of charge by the Hotel." They agreed that the Judge's husband "managed the family finances," and that this also included filling "out Judge Ortiz's financial disclosures, which he then provided to Judge Ortiz for her review and signature." The Judge conceded then that she "failed to take reasonable steps to stay apprised of her financial circumstances, including failing to make specific inquiry into how the trips were paid for." 

The Court noted that, perhaps as part of an investigation into her husband's activities, the "the State Attorney's Office informed her that there might be irregularities" regarding these trips. Despite this, the Judge did not "to make reasonable inquiry into her financial circumstances, specifically the funding of the 2015-2016 trips." She also did not file any amended disclosure forms when she was advised of the potential for "irregularities," though she did file amended forms later, "during the JQC investigation." 

The second stipulation agreed that "Judge Ortiz should receive a 30-day suspension without pay, pay a $5,000 fine, receive a public reprimand, and pay the reimbursable costs of the JQC's inquiry, in the amount of $377.45." By order dated December 7, 2018, the Court rejected the second stipulation. It ordered that the JQC conduct further proceedings. It said it "would accept a stipulation with the sanctions of a ninety-day suspension without pay, a $5,000 fine, a public reprimand, and payment of the Judicial Qualifications Commission’s reimbursable costs." 

On December 11, 2018 a revised stipulation was filed. This was the document which the Court addressed in the January 29, 2019 order. The Court concluded (1) "Judge Ortiz failed to take reasonable steps to stay apprised of her financial circumstances, including failing to inquire as to who paid for three trips she took with her spouse," and (2) "failed to verify the accuracy of her 2016 and 2017 financial disclosures, despite signing a certification attesting to the veracity of the information contained in those disclosures." The Court noted that Judge Ortiz "has apologized for her misconduct and deeply regrets that her negligence may have damaged the public’s perception of the judiciary or impugned the integrity of her colleagues." 

The Court accepted and approved the revised stipulation. On January 29, 2019, it noted the Judge's admission that her conduct was not consistent with Canon 6 of the Code, which states: "Fiscal Matters of a Judge Shall be Conducted in a Manner That Does Not Give the Appearance of Influence or Impropriety." It ordered her "suspended without pay from her duties as a county court judge for ninety days," ordered her to "pay a $5,000 fine, as well as the costs of these proceedings, in the amount of $377.45" and ordered her "to appear before the Court for the administration of a public reprimand." There was no dissenting opinion or disagreement, although Justice Muniz "did not participate." 

The lessons are fairly apparent, but good reminders for any judge. Accepting gifts is probably not appropriate. Those gifts need not be directed specifically to the judge in order to be problematic, familial gifts can likewise be problematic. In this instance, the stipulations support that the gifts and gratuities were directed at the Judge's spouse. The Judge had a duty to be informed about the existence and extent of the gifts or gratuities, and an obligation to diligently and thoroughly report gifts. The Judge had an obligation to at least review and likely amend those gift forms when she learned of the potential for error. Finally, all Judges should remember that Canon 6 is focused broadly, beyond actual impropriety, upon the "Appearance of Influence or Impropriety." 

Certainly, this is a Florida case. However, the Florida Code of Judicial Conduct is similar to the Model Code prepared and advocated by the American Bar Association. In that regard Judge Ortiz' experience may be of assistance to any judge. 

It bears noting that Canon (5)(D) expressly prohibits the receipt of gifts by Judges, and says Judges "shall urge" family members in their "household not to accept, a gift, bequest, favor or loan from anyone," with some express exceptions. The exceptions include resource material for official use, attendance at "bar-related functions" or "activity devoted to the improvement of the law." There is specific exception for gifts "incident to" a family member's "business or profession." Other exceptions are for "ordinary social hospitality," "special occasion" gifts from relatives or friends, and other gifts from someone close to the judge, close enough that if they appeared before the judge it would be necessary for the judge to recuse (remove her/himself) from the case in any event. 

Canon (5)(D)(h) affords the broadest exception, allowing gifts. However, it is applicable only "if the donor is not a party or other person who has come or is likely to come or whose interests have come or are likely to come before the judge." In other words, the gift-giver should not be involved in proceedings, nor likely to become involved. And, if the "aggregate value in a calendar year of such gifts . . . from a single source, exceeds $100.00" then the gift must be reported by the Judge. Some refer to this as the "de minimus" exception," as it allows receipt of small gifts from people or organizations not involved in cases before the Judge. 

In response to various inquiries regarding gifts, the Florida Judicial Ethics Advisory Committee published Opinion 2018-07. This addresses various specifics of gratuities and gifts afforded Judges. It is a recommended starting point for considering specific gift issues. All of the opinions of that Committee, as well as Florida Supreme Court decisions regarding judicial ethics, can be searched on the Committee's section of the Sixth Circuit website

In the end, the greatest lesson of In Re Judge Ortiz is likely that the responsibilities of Code compliance are the Judge's. The Judge must be aware of her/his own activity and that of family members. The Judge must be responsible in the reporting of financial circumstance, gifts, and gratuities. Someone might help with those forms, but ultimately the judge is responsible. That responsibility includes knowing who is giving the Judge what, but also includes knowing who is giving a member of the Judge's family what. It is perhaps a significant effort, and perhaps could lead to some familial discord, but that pales compared to the potential penalty. 

Judge Ortiz will lose 90 days of pay. County Court Judges earn approximately $151,000 annually. Thus, this penalty is almost $38,000. With the addition of a $5,000 fine, the financial impact to the Judge here is significant. However, the Judge also is publicly named in the Court's decision, and these circumstances will be studied, cited, and discussed. Furthermore, she must appear at the Supreme Court for a public reprimand by the Court. Certainly, monitoring and reporting gifts may be challenging. However, the alternatives are compelling. 

There is, however, an easy path to avoid such potentials. I believe that path is to simply decline any and all gifts. Regardless of whether a donor appears before a Judge or is likely to; regardless of the value of a gift being large or small; the easy answer is to simply, politely, and consistently decline gifts and gratuities. After all, what possible appropriate reason is there for someone to provide a Judge a gift?


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