Ohio Board Advisory Opinion Op 03-004

The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 2320, COLUMBUS, OH 43215-6104
(614) 644-5800 (888) 664-8345 FAX: (614) 644-5804
www.sconet.state.oh.us
OFFICE OF SECRETARY
OPINION 2003-4
Issued August 8, 2003
SYLLABUS: Ohio Ethics Law is contained in Chapter 102 and related statutes R.C.
2921.01, 2921.42, 2921.421 and 2921.43 of the Ohio Revised Code. For matters relating
to judicial officers, judicial employees, and judicial candidates, the Board of
Commissioners on Grievances and Discipline has advisory authority regarding the
application of Ohio Ethics Law.
.
The President/CEO and employees of Oriana House, which operates the Summit County
Community Based Correctional Facility and Program, are not judicial officials, judicial
employees, or instrumentalities of the court for purposes of Chapter 102 of the Ohio
Revised Code. Whether the President/CEO and employees of Oriana House are public
officers, public employees, or instrumentalities of the state for purposes of Chapter 102 of
the Ohio Revised Code is a determination outside this Board’s advisory authority.
The President/CEO and employees of Oriana House, which operates the Summit County
Community Based Correctional Facility and Program, are not judicial officers, judicial
employees, or agents of the court and they are not performing ad hoc judicial functions
for purposes of Section 2921.42 and 2921.43 of the Ohio Revised Code. Whether they
are public officials, public employees, agents of state, or performing ad hoc governmental
functions for purposes of Section 2921.42 and 2921.43 is a determination outside this
Board’s advisory authority.
OPINION: This opinion addresses whether the President/CEO and the employees of
Oriana House, Inc., which operates the Summit County Community Based Correctional
Facility and Program, are judicial officers and judicial employees for purposes of Ohio
Ethics Law and related statutes. This opinion does not address whether Ohio Ethics Law
has been violated.
Are the President/CEO and the employees of Oriana House, Inc., which
operates the Summit County Community Based Correctional Facility and
Program, judicial officers and judicial employees for purposes of Ohio
Ethics Law and related statutes?

Op. 2003-4 2
Why is the Board advising as to the application of Ohio Ethics Law?
The privatization of public services creates uncertainty as to how the laws governing
public officials and employees apply, if at all, to officers and employees of private
entities. The Office of the Auditor of State of Ohio has asked the Board whether the
President/CEO and the employees of Oriana House, Inc., which operates the Summit
County Community Based Correctional Facility, are judicial officers or judicial
employees for purposes of Ohio Ethics Law. Community-based correctional facilities
and programs are public offices under Section 117.01 of the Ohio Revised Code and are
subject to audit under Section 117.10 of the Revised Code. Ohio Rev. Code Ann. §
2301.56 (E)(1) (West Supp. 2003). Private or non-profit entities that perform the day-to-
day operations of any community-based correctional facility and program are also subject
to audit. Ohio Rev. Code Ann. § 2301.56 (E)(1) (West Supp. 2003).
For matters relating to judicial officers, judicial employees, and judicial candidates, the
Board of Commissioners on Grievances and Discipline has advisory authority regarding
the application of Chapter 102 and related statutes R.C. 2921.01, 2921.42, 2921.421 and
2921.43 of the Ohio Revised Code. See Ohio Rev. Code Ann. §§ 102.01(F)(2) and
102.08 (West 2002). [The Joint Legislative Ethics Committee advises as to matters
relating to members of the general assembly, employees of the general assembly,
employees of the legislative service commission, and candidates for the office of member
of the general assembly. See Ohio Rev. Code Ann. § 102.01 (F)(1) (West 2002). The
Ohio Ethics Commission advises as to matters relating to all other persons. See Ohio
Rev. Code Ann. § 102.01 (F)(3) (West 2002)].
What is Oriana House, Inc.?
Oriana House, Inc. [Oriana House] describes itself as “a private, nonprofit agency that
assists people in overcoming chemical dependencies and provides suitable, reintegrating
community corrections programs for those offenders who live in or are returning to our
communities.” http://www.orianahouse.com/ (last visited Jul 9, 2003). Oriana House
operates two types of programs: chemical dependency programs and community
corrections programs. Both programs have residential and non-residential components.
The Oriana House Web site categorizes the programs as follows:
Chemical Dependency Treatment Programs
Residential Programs
 Detoxification, Central Assessment and Drop-in Center
 Residential Treatment Center
Nonresidential Programs
 Intensive Outpatient Program
 Relapse Prevention Program
 Aftercare

Op. 2003-4 3
 Summit Link
Community Corrections Programs
Residential Programs
 Glenwood Jail-Driver Intervention Program
 Glenwood Jail-DUI Multiple Offender Program
 Halfway House Program
 Work Release Program
 Community Based Correctional Facility Program
 Juvenile Halfway House
 Special Housing Adjustment Residential Program
Nonresidential Programs
 Day Reporting Center
 Home Incarceration Program
 Bail Supervision
 Drug Court*
 Discretionary Rehabilitation Program
 Family Violence Court*
http://www.orianahouse.com (last visited Jul 9, 2003).
*Listing a court as a “nonresidential program” of a private non-profit program is a
misnomer.
Some people enter Oriana House programs voluntarily. For example, the chemical
dependency programs are available to chemically dependent Summit County residents
through self-referral or through referrals by social service agencies, law enforcement,
family members or employers.
Other people enter Oriana House programs as offenders. For example, offenders enter
the community corrections programs of Oriana House through sentencing orders of a
court, through post-release control imposed by the parole board or, according to Oriana
House Web site, through the Federal Bureau of Prisons.
http://www.orianahouse.com/halfway_house_program.htm (last visited Jul 9, 2003).
What is the Summit County Community Based Correctional Facility?
A community-based correctional facility and program is a statutorily created entity that
provides both community residential and non-residential sanctions for offenders. See
Ohio Rev. Code Ann. § 2301.51 (West Supp. 2003). A community-based correctional
facility and program serves a county. A district community-based correctional facility

Op. 2003-4 4
and program serves multiple counties. See Ohio Rev. Code Ann. § 2301.51(A)(2) (West
Supp. 2003).
The Summit County Community Based Correctional Facility serves Summit County.
There are actually two community-based correctional facilities in Akron—the Summit
County Community Based Correctional Facility (a 120 bed facility for males that opened
in 1992) and the Cliff Skeen Community Based Correctional Facility for Women (a 60
bed facility for females that opened in 2001).
http://www.orianahouse.com/community_based_correctional_facility_program.htm (last
visited Jul 9. 2003). For purposes of this opinion, “Summit County Community Based
Correctional Facility” refers to both facilities.
Offenders enter into community-based correctional facilities and programs in the
following ways: by a court pursuant to Section 2929.16 or 2929.17 of the Ohio Revised
Code; by the parole board pursuant to Section 2967.28 of the Ohio Revised Code; or are
otherwise committed or admitted to a facility and program when authorized by law. Ohio
Rev. Code Ann. § 2301.51(B)(2) (West Supp 2003).
Pursuant to Section 2929.16(A), a court, may impose community residential sanctions or
a combination of community residential sanctions upon a felony offender who is not
required to serve a mandatory prison term. A court may impose community residential
sanctions upon a fourth degree felony OMVI in addition to the mandatory term of local
incarceration imposed under section 2929.13 of the Ohio Revised Code. Ohio Rev. Code
Ann. § 2929.16(A) (West Supp 2003).
A community-based correctional facility and program is one option a judge may choose
when sentencing an offender to community residential sanctions. Examples of
community residential sanctions also include a term in a jail, a halfway house, or an
alternative residential facility. See Ohio Rev. Code Ann. §2929.16(A)(1) through (5)
(West Supp. 2003).
Pursuant to Section 2929.17, a court may impose community non-residential sanctions
for felony offenders who are not required to serve a mandatory prison term. A court may
impose nonresidential sanctions upon a fourth degree felony OMVI in addition to the
mandatory term of local incarceration imposed under Section 2929.13 of the Ohio
Revised Code. Ohio Rev. Code Ann. § 2929.17 (West Supp 2003).
A community-based correctional facility and program is one option a judge may choose
when sentencing an offender to community non-residential sanctions. Examples of non-
residential sanctions include a term of day reporting; electronically monitored house
arrest; a term of community service; a term in a drug treatment program; a term of
probation supervision; a term of monitored time; a term of drug and alcohol use
monitoring, including random drug testing; a curfew; a requirement of employment,
education or training; participation in victim-offender mediation; or counseling. See
Ohio Rev. Code Ann. §2929.17 (West Supp. 2003).

Op. 2003-4 5
A community-based correctional facility and program is also an option for the parole
board in imposing post-release control sanctions. The parole board may impose
sanctions it considers appropriate including any community residential sanction,
community nonresidential sanction, or financial sanction that the sentencing court was
authorized to impose pursuant to 2929.16, 2929.17, and 2929.18 of the Revised Code.
See Ohio Rev. Code Ann. §2967.28 (D)(1) (West Supp. 2003).
How is a court involved with the Summit County Community Based Correctional Facility
and Oriana House, Inc.?
The Ohio legislature designates the court of common pleas as the entity that may
formulate a community-based correctional facility and program proposal. The proposal
of the court must receive approval by the division of parole and community services of
the department of rehabilitation and correction. See Ohio Rev. Code Ann. § 2301.51
(B)(1), (2) (West Supp. 2003); Ohio Rev. Code Ann. §. 5120.10(D)(4) (West Supp.
2003).
At the mandate of the Ohio legislature, the judges of the court of common pleas serve as
the judicial corrections board that administers the county community-based correctional
facility and program. See Ohio Rev. Code § 2301.51 (A)(1) (West Supp. 2003). The
duties of the judicial corrections board are set forth in section 2301.55 of the Ohio
Revised Code. For example, the judicial corrections board appoints and fixes the
compensation of the director of the community-based correctional facility and program,
and of the other professional, technical, and clerical employees. Ohio Rev. Code §
2301.55(A)(1) (West Supp. 2003). The judicial corrections board is permitted to enter
contracts with the county commissioners whereby the county provides buildings, goods,
and services to the facility and program. Ohio Rev. Code § 2301.55(A)(2) (West Supp.
2003).
The judicial corrections board adopts rules for sentencing or other commitment or
admission pursuant to law of persons to, and the operation of, the facility and program,
but the rules must conform to sections 2301.51 to 2301.56, 5120.10, 5120.111 and
5120.112 and must be entered on the journal of the court. Ohio Rev. Code §
2301.55(A)(3) (West Supp. 2003). The judicial corrections board may accept gifts,
donations, devises, bequests, grants or appropriations in the interest of the facility and
program. Ohio Rev. Code §2301.55(B) (West Supp. 2003). The judicial corrections
board provides the citizens advisory programs with the staff assistance required to
perform their duties. Ohio Rev. Code 2301.55 (C) (West Supp. 2003).
In addition, the judicial corrections board may request funding for some or all of the
community-based correctional facilities and programs to the board of county
commissioners of the county. The board of county commissioners may, but is not
required to fund all aspects of each facility and program. Ohio Rev. Code Ann §
2301.51(C) (West Supp 2003). According to the letter requesting this opinion, funding
for the Summit County Community Based Correctional Facility is through a grant of

Op. 2003-4 6
approximately five million dollars from the Ohio Department of Rehabilitation and
Corrections.
As mentioned already, judges sentence offenders to community-based correctional
facilities and programs. After sentencing, intake officers of a community-based
correctional facility and program screen each felony offender to make recommendations
to the sentencing court regarding the admission or referral of the felony offender to the
facility and program. Ohio Rev. Code Ann § 2301.52(D) (West Supp 2003).
In summary, the relationship of a court to a community-based correctional facility and
program involves proposing a community-based correctional facility and program,
serving on the judicial corrections board to administer the facility and program, and
sentencing offenders to a community-based correctional facility and program.
What is the relationship of Oriana House, Inc. and the Summit County Community Based
Correctional Facility and Programs?
Oriana House provides the day-to-day operations of the Summit County Community
Based Correction Facility and Program. [Oriana House also operates a district
community-based correctional facility located within Seneca County.
http://www.orianahouse.com/community_based_correctional_facility_program.htm (last
visited Jul 9, 2003).] According to the request letter, the Director of the Summit County
Community Based Correctional Facility is the President/CEO of Oriana House. As stated
in the request letter, Summit County and the Summit County Judicial Corrections Board
contract with Oriana House for the provision of community-based correctional facility
services. The details of the contract provisions are not before this Board.
Oriana House presumably has other relationships as well. Although not mentioned in the
letter, the division of parole and community services of the Department of Rehabilitation
and Corrections also is empowered to enter contracts. The powers and duties of the
division of parole and community services include “contracting with a public or private
agency or a department or political subdivision of the state that operates a licensed
halfway house or community residential center for the provision of housing, supervision,
and other services to parolees and probationers in accordance with section 2967.14 of the
Revised Code.” Ohio Revised Code Ann. §5120.10(D)(8) (West Supp 2003).
What is Ohio Ethics Law and to whom does it apply?
Ohio Ethics Law is contained in Chapter 102 and related statutes R.C. 2921.01, 2921.42,
2921.421 and 2921.43 of the Ohio Revised Code. Section 102.02 provides for the filing
of financial disclosure statements. Section 102.03 prohibits unlawful conflicts of interest
during and after public employment. Section 2921.01 provides definitions. Section
2921.42 provides public contract restrictions. Section 2921.421 provides special rules for
prosecuting attorneys. Section 2921.42 prohibits unlawful supplemental compensation.
As explained below, Ohio Ethics Law defines to whom each section of the law applies.

Op. 2003-4 7
Chapter 102 of the Ohio Revised Code.
Chapter 102 applies to “public officials or employees.” As used in Chapter 102,
“‘[p]ublic official or employee’ means any person who is elected or appointed to an
office or is an employee of any public agency.” Section 102.01(B). “‘Public agency’
means the general assembly, all courts, any department, division, institution, board,
commission, authority, or other instrumentality of the state, a county, city, village,
township, and the five retirement systems, or any other governmental agency.” Ohio
Rev. Code Ann. § 102.01(C) (West 2002).
Ohio Ethics Law does not provide a definition of “judicial officer” or “judicial
employee.” Ohio Ethics Law does not define “appointed to an office.” The Ohio Ethics
Commission has described the indicia of whether one is “appointed” to an office.
The Ethics Commission, in Advisory Opinion No. 74-007, reviewed
existing case law and recognized factors which established a test to
determine whether one is “appointed to an office”; which were, whether
the person: (1) is appointed; (2) has a title; (3) exercises a function of
government concerning the public; and (4) is not subject to a contract of
employment. The Ethics Commission modified this test in Advisory
Opinion No. 75-004 when it determined that whether the person exercises
the “sovereign power” of government, as explained in case law, is an
additional and essential criterion for determining whether one is
“appointed to an office.”
Ohio Ethics Commission Op. 92-001.
It is the Board’s view that a “judicial officer” is a person elected or appointed as a judge
of a court in the state of Ohio. The Ohio Constitution vests “judicial power” in the
courts. Ohio Const. art. IV, § 1. The elected and appointed judges exercise this judicial
power. The Board also considers magistrates and acting judges as “judicial officers” for
purposes of Ohio Ethics Law. Magistrates and acting judges are appointed by judges and
they exercise judicial power. Judges, acting judges, and magistrates hold offices of profit
or trust. See e.g., O.A.G. Op. 96-024 and O.A.G. 90-089.
It is the Board’s view that judicial employees are persons employed by the judicial
branch of government. Judicial employees are persons subject to a contract of
employment as an employee of a court. Some of the factors the Ohio Ethics Commission
has used to distinguish an independent contractor from an employee include:
the extent of control the employer exercises over the details of the work,
whether or not the individual is engaged in a distinct occupation or
business, the skills required in the particular occupation, the length of time
the individual is engaged, the method of payment (by job or by time), and

Op. 2003-4 8
whether or not the parties believe they are creating a relationship of
employer and employee. . . .
. . . An independent contractor is not elected or appointed to an
office of or employed by the county, and, accordingly, is not subject to the
limitations in R.C. 102.04(C).
Ohio Ethics Commission Op. 93-013 [citations omitted].
The President/CEO and employees of Oriana House are not judicial officers. They are
not elected to a judicial office and they are not appointed to a judicial office. They do not
exercise judicial power. The President/CEO and employees of Oriana House are not
employed by the judicial branch of government. They are not judicial employees subject
to contracts of employment as employees of the court. The court does not exercise
control over the details of their work.
Oriana House is not an instrumentality of the court. A judge’s sentencing of an offender
to a community residential or nonresidential sanction of a community-based correctional
facility and program in which the services are provided by Oriana House, does not make
Oriana House an instrumentality of a court, any more than a jail or a prison is an
instrumentality of a court. A judge’s role in establishing a proposal for a community
based correctional facility and program does not render Oriana House an instrumentality
of the court. A judge’s legislatively mandated service on a judicial corrections board
does not render Oriana House which operates the community-based correctional facility
and program an instrumentality of the court. [The judiciary may wish to question judges’
involvement on judicial corrections boards overseeing the administration of a
community-based correctional facility and programs; however, that is not the subject of
this opinion.]
Community-based correctional facilities serve the county—they do not exist only for the
court’s use. A prime example is that the adult parole authority uses community-based
correctional facilities and programs for post-control release sanctions. Judges serve on
the judicial corrections board that administers a community-based correctional facility
and program, but the Department of Rehabilitation and Corrections has significant
responsibilities with regard to a community-based correctional facility and program. The
Department of Rehabilitation and Correction is responsible for preparing and providing
to the Auditor of State quarterly financial reports for each community-based correctional
facility and program and for each private or nonprofit entity that performs the day-to-day
operation of any community-based correctional facility and program. See Ohio Rev.
Code Ann. § 2301.56(E)(2) (West Supp. 2003). The division of parole and community
services of the Department of Rehabilitation and Corrections has the final approval over
proposals for a facility and program. The division of parole and community services
licenses halfway house and community residential centers for care and treatment of adult
offenders; and enters contracts for provision of housing, supervision, and other services
to parolees and probationers. See Ohio Rev. Code Ann. § 5120.10(D) (West Supp 2003).
If a judicial corrections board wishes to dissolve a community-based correctional facility,

Op. 2003-4 9
the division of parole and community services must be notified of the determination.
Ohio Rev. Code Ann. § 2301.51(D)(1) (West Supp. 2003).
Thus, it is the Board’s view that the President/CEO and employees of Oriana House are
not judicial officials, judicial employees, or instrumentalities of the court for purposes of
Chapter 102 of the Ohio Revised Code. Whether the President/CEO and employees of
Oriana House, which operates the Summit County Community Based Correctional
Facility and Program, are public officers, public employees, or instrumentalities of the
state for purposes of Chapter 102 of the Ohio Revised Code is outside this Board’s
advisory authority. This Board advises only that they are not judicial officers, judicial
employees, or instrumentalities of the court.
Section 2921.42 and 2921.43 of the Ohio Revised Code.
Section 2921.42 and 2921.43 apply to public officials and public servants. As used in
Sections 2921.42 and 2921.43, “[p]ublic official means any elected or appointed officer,
or employee, or agent of the state or any political subdivision, whether in a temporary or
permanent capacity, and includes, but is not limited to, legislators, judges, and law
enforcement officers.” Ohio Rev Code Ann § 2921.01(A) (West Supp 2003). As used in
Section 2921.43 of the Ohio Revised Code, public servant means any “public official” or
“any person performing ad hoc a governmental function, including, but not limited to, a
juror, member of a temporary commission, master, arbitrator, advisor, or consultant.”
Ohio Rev Code Ann § 2921.01(B)(1), (2) (West Supp 2003).
As expressed already by the Board, the President/CEO and employees of Oriana House
are not elected or appointed judicial officers, not judicial employees, and
instrumentalities of the court. Now, the Board considers whether they are “agents of the
court” or “performing ad hoc judicial functions” for purposes of Sections 2921.42 and
2921.43.
The Ohio Ethics Commission has advised that
a person is an agent of a public entity for purposes of R.C. 2921.42 if all
three of the following apply: (1) the individual has the authority to enter
into contracts with others and thus has the authority to act on the public
entity’s behalf and bind the public entity; (2) the public entity exercises
the right of control over the individual; and (3) the individual’s
contractually prescribed actions are directed toward the attainment of an
objective sought by the public entity.
Ohio Ethics Commission Op. 93-013 and Op. 92-001.
The President/CEO and employees of Oriana House are not agents of the court for
purposes of R.C. 2921.42. Two of three conditions of being an “agent” are not met. The
President/CEO and employees of Oriana House do not have authority to bind the court by
entering into contracts with others on the court’s behalf. Oriana House binds itself not

Op. 2003-4 10
the court when it enters into contracts. The court does not exercise the right of control
over the President/CEO or employees of Oriana House. However, in providing
community corrections programs through a community-based correctional facility and
program, the actions of the President/CEO and employees of Oriana House are directed
toward the attainment of an objective sought by the court and the adult parole authority—
the implementation of community residential and nonresidential sanctions imposed on
offenders. But, to be considered an agent, all three conditions, not just one, must be met.
The President/CEO and employees of Oriana House are not performing ad hoc judicial
functions. Ad hoc means “[f]ormed for a particular purpose.” Black’s Law Dictionary
41 (7th ed. 1999). The functions of the President/CEO and the employees of Oriana
House in providing chemical dependency treatment programs and community control
corrections program for a community-based correctional facility and program are not ad
hoc judicial functions. The functions of Oriana House are not the exercise of judicial
power. The functions of Oriana House serve multiple purposes—chemical dependency
treatments for the community at large as well as community corrections programs for
offenders sentenced by the court or under post-control release sanctions by the parole
board.
Thus, it is this Board’s view that the President/CEO and employees of Oriana House,
which operates the Summit County Community Based Correctional Facility and
Program, are not judicial officers, not judicial employees, not agents of the court, and are
not performing ad hoc judicial functions for purposes of Section 2921.42 and 2921.43 of
the Ohio Revised Code. Whether they are public officials, public employees, agents of
state, or performing ad hoc governmental functions for purposes of Section 2921.42 and
2921.43 is a determination outside this Board’s authority.
What is the Board’s conclusion?
Ohio Ethics Law is contained in Chapter 102 and related statutes R.C. 2921.01, 2921.42,
2921.421 and 2921.43 of the Ohio Revised Code. For matters relating to judicial
officers, judicial employees, and judicial candidates, the Board of Commissioners on
Grievances and Discipline has advisory authority regarding the application of Chapter
102 and Sections 2921.42 and 2921.43 of the Revised Code.
The President/CEO and employees of Oriana House, which operates the Summit County
Community Based Correctional Facility and Program, are not judicial officials, judicial
employees, or instrumentalities of the court for purposes of Chapter 102 of the Ohio
Revised Code. Whether the President/CEO and employees of Oriana House, which
operates the Summit County Community Based Correctional Facility and Program, are
public officers, public employees, or instrumentalities of the state for purposes of Chapter
102 of the Ohio Revised Code is a determination outside this Board’s advisory authority.
The President/CEO and employees of Oriana House, which operates the Summit County
Community Based Correctional Facility and Program, are not judicial officers, judicial
employees, agents of the court, or performing ad hoc judicial functions for purposes of

Op. 2003-4 11
Section 2921.42 and 2921.43 of the Ohio Revised Code. Whether they are public
officials, public employees, agents of state, or performing ad hoc governmental functions
for purposes of Section 2921.42 and 2921.43 is a determination outside this Board’s
advisory authority.
Advisory Opinions of the Board of Commissioners on Grievances and Discipline are
informal, nonbinding opinions in response to prospective or hypothetical questions
regarding the application of the Supreme Court Rules for the Government of the
Bar of Ohio, the Supreme Court Rules for the Government of the Judiciary, the
Code of Professional Responsibility, the Code of Judicial Conduct, and the
Attorney’s Oath of Office.