Ohio Board Advisory Opinion Op. 21-01

This nonbinding advisory opinion is issued by the Ohio Board of Professional Conduct
in response to a prospective or hypothetical question regarding the application of
ethics rules applicable to Ohio judges and lawyers. The Ohio Board of Professional
Conduct is solely responsible for the content of this advisory opinion, and the advice
contained in this opinion does not reflect and should not be construed as reflecting the
opinion of the Supreme Court of Ohio. Questions regarding this advisory opinion
should be directed to the staff of the Ohio Board of Professional Conduct.
OPINION 2021-01
Issued February 12, 2021
Withdraws Adv. Op. 1991-11
Judicial Membership on Nonprofit Corporation Board Providing Services to Court
SYLLABUS: A judge may not serve as a member or officer of the board of directors of a
nonprofit corporation that provides services to the court under a contract with the court’s
funding authority.

65 SOUTH FRONT STREET, 5TH FLOOR, COLUMBUS, OH 43215-3431
Telephone: 614.387.9370 Fax: 614.387.9379
www.bpc.ohio.gov
PATRICIA A. WISE
CHAIR
RICHARD A. DOVE
DIRECTOR
HON. D. CHRIS COOK
VICE- CHAIR
D. ALLAN ASBURY
SENIOR COUNSEL
KRISTI R. MCANAUL
COUNSEL
OPINION 2021-01
Issued February 12, 2021
Withdraws Adv. Op. 1991-11
Judicial Membership on Nonprofit Corporation Board Providing Services to Court
SYLLABUS: A judge may not serve as a member or officer of the board of directors of a
nonprofit corporation that provides services to the court under a contract with the court’s
funding authority.
QUESTION PRESENTED:
Whether a municipal judge may serve as a member or officer of the board of directors of
a nonprofit corporation that provides services to the municipal court through a grant
contract between the corporation and the court’s funding authority.
APPLICABLE RULES: Jud.Cond.R. 1.2, 3.1, 3.7
OPINION: A nonprofit corporation provides services to a municipal court through a
community re-entry detention program for defendants charged with misdemeanor
violations of the municipal code. The program promotes community service assignments
as an alternative to incarceration and provides rehabilitation to participants in an effort
to reduce recidivism. The services include in-home detention with monitoring of each
participant, community service assignments, drug/alcohol-treatment services, and
educational, vocational and job training placement assistance. The nonprofit corporation
receives referrals from the municipal court, the workhouse and the probation office,
conducts home assessments and advises the court as to the progress of each participant.

Op. 2021-01 2
The reentry program is funded through a grant contract between the city that is
court’s statutory funding authority and the nonprofit corporation. The nonprofit
corporation would use the funds from the grant to pay program expenses. The costs of
the program would be based on per diem rates for a specific number of participants. The
city could receive volume fee reductions in the per diem for agreeing to fund more
participants.
An analysis of both the Code of Judicial Conduct and the Ohio Ethics Law is
necessary in order to answer the question presented.
Ohio Ethics Law
Public officials, including judges, are subject to the Ohio Ethics Law, including a
prohibition against public officials from having an interest in any public contract entered
into by, or for the use of, his or her agency. R.C. 2921.01(A), 2921.42(A)(4). R.C.
2921.42(E)(1) defines a "public contract" for purposes of that section to include the
purchase or acquisition or a contract for the purchase or acquisition of property or
services by or for the use of a political subdivision. Members of a nonprofit corporation
board have either a pecuniary or fiduciary "interest" in the contracts of the corporation.
Oh. Ethics Comm. Op. 81-008 (1981). Under the facts presented, the municipal court on
which the judge serves is a beneficiary of the contract entered between the city and the
nonprofit organization. As a member of the nonprofit board under contract with the city,
the judge would have a fiduciary interest in the contract, and thus would be precluded
from serving on the nonprofit board under R.C. 2921.42(A)(4).
An exception to the prohibition in R.C. 2921.42(A)(4) has been determined by the
Ohio Ethics Commission, but is inapplicable under the facts presented. The commission
has opined that a public official is permitted to serve on a nonprofit board without
violating R.C. 2921.42(A)(4) when 1) the governmental entity creates or is a participant in
the non-profit corporation; 2) the elected legislative authority or the appointed governing
body formally designates the office or position to represent the governmental entity; 3)
the public official or employee is formally instructed to represent the governmental entity
and its interests; and 4) there is no other conflict of interest on the part of the designated
representative. Ohio Ethics Comm'n, Op. 84-001 (1984). Here, the municipal court did not
create the nonprofit organization, the judge has not been officially designated to

Op. 2021-01 3
represent the court on the nonprofit board, and the judge’s service on the board gives rise
to an ethical conflict under the Code of Judicial Conduct. Based on the foregoing, a
judge’s membership as a director or officer on a nonprofit board, that contracts with the
city to provide reentry services to the court, gives rise to a fiduciary interest in a contract
between the corporation and the city that is precluded under the Ohio Ethics Law.
Code of Judicial Conduct
A judge is generally permitted to serve as an officer, director, trustee, or non-legal
advisor of a non-profit educational, religious, charitable, fraternal, or civic organization.
Jud.Cond.R. 3.7. However, a judge cannot serve in these capacities if the organization
will be engaged in proceedings before the judge. Jud.Cond.R. 3.7(A)(7)(a). Based on the
question presented, the nonprofit organization will be regularly engaged in proceedings
of the court through the judge’s referral of defendants to the organization. The
organization would continue to engage with the court by informing the judge of the
program participant’s status and his or her completion of program requirements.
Moreover, the judge’s participation as a board member may interfere with the
judge’s obligation to uphold the independence and impartiality of the judiciary.
Jud.Cond.R. 1.2. A judge may not participate in an extrajudicial activity when it would
appear to a reasonable person to undermine the judicial officer’s independence, integrity,
or impartiality. Jud.Cond.R. 3.1(C), 1.2. Service on the nonprofit board may raise
questions from court participants and proseuctors about the impartiality of the judge. For
example, the parties may question whether the judge can rule on matters in an impartial
manner when serving on the nonprofit board, especially when the organization depends
on a certain number of referrals from the court to realize its income from the city grant.
Likewise, reasonable questions concerning judicial independence may also be raised if
the judge promotes the use of the reentry program as a preferred alternative over
incarceration in order to ensure the financial success of the nonprofit corporation that he
serves in a fiduciary role.