The Flying Judge

Whether an active judge may open and incorporate a closely-held individually financed, FAA-approved flight training school.

ANSWER: Yes.

An active judge would like to open and incorporate a closely-held individually financed, FAA-approved flight training school. According to the inquiring judge, the business would be a Subchapter S Corporation licensed and in compliance with all applicable State and Federal laws. Additionally, it would meet all FAA requirements.

The business aspect of the school and concept of operations are as follows:

SERVICES PROVIDED: The propose Flight School would provide one on one training in the form of ground and flight training for purposes of FAA certifications; private pilot, instrument, commercial, and multi-engine ratings; flight reviews, and additional flight related activities.

TRAINING: Training would be conducted with individuals as outlined in a written flat fee contract with the judge as the primary flight instructor/chief pilot.

The FAA sets forth benchmarks tested over time for the sought after rating(s) that do not require interpretation.

TRAINING TIMES: All training would be conducted outside of any Court time and would not interfere with judicial duties. Specifically, training would be conducted during the evening hours, holidays, and weekends.

CONFLICTS: Procedural safeguards would be enacted to eliminate any foreseeable conflict or perception of impropriety.

The FAA defines a flight school as any organization providing flight instruction, including pilot schools, flight training centers, and flight instructors in conformity with an applicable regulations and requirements.

Any advertising conducted would have no mention, either directly or indirectly, of being a judge.

DISCUSSION

The inquiring judge would be the sole owner of the flight school and utilize personal finances and institutional loans to the corporation and as a personal guarantor. The judge’s spouse is also a judge but would not have any involvement in the operations of the school.

It is well-established in previous advisory opinions that judges are not precluded from owning or having an interest in a private for-profit business, as long as the business is only owned by him/her and members of his/her family.

        In Fla. JEAC Op 2022-09, this committee determined that a judge, who wrote a children’s book could establish a limited liability company related to the sales of the book. In doing so, the committee said as follows:

As for the contemplated establishment of a limited liability company, we look to Canon 5A(4) of the Florida Code of Judicial Conduct, which cautions judges against any extrajudicial activities that would interfere with the proper performance of a judge’s duties “that is, consume an inordinate amount of the judge’s time. Nothing about the judge’s inquiry suggests to us that marketing the book, so long as it is done on the judge’s personal time, away from the courthouse, and did not involve soliciting lawyers, would interfere with the judge’s job.

In the instant request for advisory opinion, the inquiring judge specifically asserts that all training will be conducted during evening hours, holidays, and weekends so as not to interfere with judicial duties.

In the same advisory opinion, this committee addressed Canon 5D(1)(a) which bars judges from conducting themselves in a manner that “may reasonably be perceived to exploit the judge’s judicial position.” We do not interpret owning or providing training at a flight school, even for profit, as qualifying as such exploitation. Further, subsection (b) discourages “frequent transactions” between judges and “lawyers or other persons likely to come before the court.” However, there is no reason to believe that individuals who enroll in training at the judge’s flight school would be more likely to come before the court than any other individual. Additionally, there is nothing to indicate that the flight school will be marketed specifically to lawyers or anyone under the judge’s direction.

Finally, the same advisory opinion addresses Canon 5D, which does not forbid judges from participating in private businesses, if the business is “closely held by the judge or members of the judge’s family.” Canon 5D(3)(a).

A small LLC, set up for a limited purpose, should not run afoul of this  provision. As was made clear in Fla. JEAC Op. 2014-27, the primary concern over LLC’s is that judges must choose their professional associates carefully so as not to require frequent disqualification.

In this case, the inquiring judge has asserted that he will be the sole owner of the flight school.

Consistently, in Fla. JEAC Op 2016-17, this committee concluded that a judge may not own an interest in a closely held business with a person who is not a member of the judge’s family, be employed by the business during non-business hours, or be compensated for services provided by the business if owned by someone other than him/herself or his/her immediate family. Additionally, it concluded that a judge may not be employed by a closely held business where the judge’s spouse owns an interest in the business with a person who is not a member of the judge’s family.

The conclusion was based on Canon 5D(3), which prohibits a judge from serving at all as an officer, director, manager, general partner, advisor, or employee of any business entity except a business closely held by the judge or members of the judge’s family, or a business entity primarily engaged in the investment of the financial resources of the judge or members of the judge’s family.

Likewise, in Fla. JEAC Op 2008-25, this committee concluded that, “the inquiring judge may be an officer and director of a closely held family corporation and may receive compensation in the form of a commission.” In the instant inquiry, the judge expressly asserts that he will be the sole owner of the company thereby complying with Canon 5D(3).

Based on the conclusions of the JEAC opinions discussed above, this committee concludes that the inquiring judge may open and incorporate a closely held individually financed, FAA-approved flight training school

(Mike Frisch)