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A person doesn't know how much he has to be thankful for until he has to pay taxes on it. ~Author Unknown
Judge R. Lanier Anderson III was nominated in 1979 to the U.S. Court of Appeals for the Fifth Circuit (redesignated the Eleventh Circuit in 1981). He was appointed to the Judicial Conference Committee on Codes of Conduct in 1987 and has been chairman of the committee since 1992.
Q: The Codes of Conduct Committee may be one of the less visible committees of the Judicial Conference. What is its role and function?
A: The Codes of Conduct Committee is the committee authorized by the Judicial Conference to give advice on ethical questions that arise under the codes of conduct and the Ethics Reform Act and related regulations. The codes of conduct contain general ethical standards on avoiding impropriety and the appearance of impropriety, while the Ethics Reform Act provisions regulate acceptance of gifts and honoraria as well as outside earnings and employment activities. In an average year, the committee and its staff receive close to 100 requests for a written advisory opinion and over 200 telephonic inquiries seeking informal guidance. Most inquiries are from judges, who often seek advice on when they must recuse themselves because of financial or family interests. We also receive requests for advice from judicial employees, for example, on whether certain outside businessrelated or political activities are proper.
Q: What about members of thepublic? Does your committee provide advice to them as to whether a judge has acted ethically?
A: No, the committee's jurisdiction is limited to advising judges and judicial employees about the ethical propriety of their own activities. We are not an enforcement committee, and we do not accept or process complaints from the public about judges and judicial employees. I should add that my committee also does not have responsibility for reviewing and filing the annual financial disclosure reports; that function is handled by the Financial Disclosure Committee, which is chaired by Judge Frank J. Magill (8th Cir.).
Q: I know the Codes of Conduct Committee has been working for some time on a new consolidated code of conduct for judicial employees, which was recently circulated for public comment. Can you tell us what the committee is doing and why?
A: The committee reviewed the six existing employee codes of conduct to see whether we could consolidate them into a single code because the committee believed that one code would be more efficient and accessible. We noted in that review that the six existing codes are expressly applicable only to the named employees, for example clerks and deputy clerks, probation and pretrial services officers, circuit executives, staff attorneys, federal public defenders, law clerks, and a few designated employees of the AO, although others, such as judges' secretaries, would be covered derivatively.
The committee has drafted a proposal that consolidates five of the six existing codes into one consolidated code and that extends code coverage to all judicial employees (other than those specifically excluded from coverage). The consolidated code incorporates revisions recently made to the judges' code and streamlines and updates other provisions. The proposal was circulated for public comment last fall, and then revised and circulated for a second round of comments this spring. We hope to review any additional comments this summer and make a recommendation to the September 1995 Judicial Conference for adoption of a final consolidated code. I should add that we do not plan to include federal public defenders and their employees in the consolidated code. Instead, we propose to maintain a separate defender code but to revise it to correspond to the consolidated code. This spring, the committee also circulated for public comment proposed revisions to the defender code.
Q: How does the proposed consolidated code differ from the existing employee codes?
A: There are several importantdifferences. First, the new code will extend to virtually all
judicial employees, including many who are not expressly covered by an existing code. Second, the consolidated code contains a new conflict of interest provision that generally restricts employees from performing official duties in areas where they have a personal or financial interest of the sort that would cause reasonable people to question whether they could perform their official duties impartially. The new provision is based on existing code principles but provides more specific guidance to employees about avoiding obvious conflicts of interest. Third, several provisions relating to employees' activities outside of the office have been revised and tailored more narrowly to ensure that the code does not unduly infringe on employees' involvement in civic, social, and related pursuits.
The committee believes that the consolidated code will be a useful and more specific guide for judicial employees, and also that the adoption process, with its circulations for comment, will serve an important educational role.
Q: What general guidance canyou provide to judges and judicial employees who are asked to participate in political activities?
A: Judges, of course, are strictly prohibited from involvement in political activities by Canon 7 of the Code of Conduct for United States Judges. Judicial employees also are generally restricted from partisan activities but most may engage in nonpartisan activities; the consolidated code proposes to retain this general approach. We have received a number of questions in this area recently, particularly in the wake of the 1993 Hatch Act Amendments, which relaxed the restrictions on partisan political activities by executive branch employees. The Hatch Act does not itself apply to the Judiciary, but the committee considered a similar relaxation of the existing judicial standards to allow judicial employees fuller participation in political affairs. Because of the singular role of the Judiciary, the committee has serious concerns about the need to protect the integrity of the Judiciary from association with partisan politics and from the appearance of partiality and lack of objectivity that could follow, which led us to recommend no relaxation of these provisions. Judicial employees, therefore, should continue to adhere to existing restrictions on involvement in political activities.
Q: Some employees find it difficult to obtain information about ethics requirements. Can you describe what materials are available?
A: Almost all ethics-related materials in the Judiciary are published in Volume II of the Guide to Judiciary Policies and Procedures. This volume contains all of the codes of conduct (Chapters I and II); excerpts of relevant statutory provisions and the regulations on gifts and on outside earnings and employment (Chapter VI); and published advisory opinions (Chapter IV). Two years ago, the committee compiled a Compendium of Selected Opinions summarizing the advice given by the committee over the past 20 years; the Compendium is also published as Chapter V of Volume II and provides useful guidance on a range of important issues covered by the canons and the Ethics Reform Act (relating to restrictions on gifts and honoraria and outside earned income). The compendium's Table of Contents facilitates location of relevant materials. In talking with judges across the country, the committee has noted that many judges' copies of Volume II have not been kept up to date, thus seriously inconveniencing judges when they consult it. As part of our educational efforts, the committee is suggesting to judges that they keep their copy of Volume II close at hand and that they urge their clerical support to keep it up-to-date by filing all transmittals from the AO promptly.
Judges and judicial employees who have ethical questions are encouraged to consult these materials for guidance, and employees should also consult with their supervisors. If questions remain, judges and judicial employees may contact their circuit representative on the committee or the committee's counsel in the AO General Counsel's Office for informal guidance, or may request a confidential advisory opinion from the committee itself.
The committee's conversations with hundreds of judges leads us to believe that judges are increasingly sensitive to the canons and their ethical obligations. There seems to be widespread compliance with the letter and spirit of the canons.
In this era of increasing public scrutiny and even suspicion of all human institutions, it is more important than ever for judges to be sensitive to the provisions of the canons. For that reason, the committee is taking steps to enhance its educational efforts both for judges and for judicial employees.
From The Third Branch, May 1995 Issue
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