Ohio Board Advisory Opinion Op 91-011

The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 3370, COLUMBUS, OH 43215-6105
(614) 644-5800 FAX: (614) 644-5804
OFFICE OF SECRETARY
OPINION 91-11
Issued April 12, 1991
[Former CJC Opinion-provides advice under the former Ohio Code of Judicial Conduct which is superseded by the
Ohio Code of Judicial Conduct, eff. 3/1/2009.]
[Not Current- subsequent rule amendments to Canons 1 through 6, Ohio Code of Judicial Conduct, eff. May 1, 1997.]
SYLLABUS: The Code of Judicial Conduct, Ohio Ethics Law (Chapter 102. of the Revised Code)
and related statutes (Section 2921.42 and 2921.43 of the Revised Code) prohibit a municipal judge
from serving as a member or officer of the Board of Directors of a nonprofit corporation providing
services to the municipal court by contract with the city.
OPINION: We have before us a request for an advisory opinion on whether the Code of Judicial
Conduct, Ohio Ethics Law and related statutes prohibit a municipal judge from serving as a
member or officer of the Board of Directors of a nonprofit corporation providing services to the
municipal court by contract with the city.
The nonprofit corporation provides contractural services to the court through a community re-entry
detention program for individuals who have violated municipal ordinances. The program promotes
community service assignments as an alternative to incarceration and provides rehabilitation to
reduce recidivism. The contractural services include in-home detention with bracelet or phone
monitoring of each participant, community service assignments, drug/alcohol-treatment services,
and educational, vocational and job training placement assistance. The program staff would
receive referrals from the court, the workhouse and the probation office, do home assessments and
make joint decisions with the court as to the participants.
The city would fund the program through a grant to the nonprofit corporation. The nonprofit
corporation would use the funds from the grant to pay program expenses. Costs of the program to
the city would be based on per diem rates for a specified number of participants. The city could
receive volume fee reductions in the per diem for agreeing to fund more participants. The contract
would specify the dollar amount of the grant and that would determine the number of program
participants.
Withdrawn by Adv. Op. 2021-01

Op. 91-11 2
This Board has statutory authority to render advisory opinions with regard to questions concerning
ethics, conflicts of interest, and financial disclosure for judicial officers and candidates for judicial
office. OH. REV. CODE ANN §§ 102.08 and 102.01 (F) (2). However, the question of whether
the city has authority to enter into a contract is not one this Board can answer. For purposes of this
opinion, the Board will assume the city may enter the contract.
Ohio Ethics Law is set forth in Ohio Revised Code Chapter 102 and related statutes Sections
2921.42 and 2921.43. Judges are considered public officials for purposes of applying the ethics
laws. OH REV CODE ANN §§ 102.01 (B) and 2921.01 (A). Section 102.03 (D) prohibits a
public official from using or authorizing the use of the authority or influence of his office or
employment to secure anything of value or the promise or offer of anything of value that is of such
a character as to manifest a substantial and improper influence upon him with respect to his duties.
Section 2921.42 (A) (1) prohibits a public official from knowingly authorizing or employing the
authority or influence of his office to secure the authorization of any public contract in which he
has an interest. These provisions will not be addressed further since the facts presented do not
suggest that the judges would receive compensation or anything of value from the nonprofit
corporation. Nor do the facts suggest that the judges would authorize or employ their authority or
influence to secure the authorization of the contract between the city and the nonprofit corporation.
The pertinent ethics statute is Section 2921.42 (A) (4), prohibiting a public official from knowingly
having an interest in the profits or benefits of a public contract entered into by or for the use of the
political subdivision or governmental agency or instrumentality with which he is connected. In
enacting Section 2921.42, the legislature realized that a dual interest of a public official could
create a risk that private considerations might detract from serving public interests. Ohio Ethics
Comm’n, Op. 81-008 (1981).
The Ohio Ethics Commission has opined that officers or board members of a nonprofit corporation
have an "interest" in the contracts of the corporation. Ohio Ethics Comm'n, Op. 81-005 (1981),
Op. 81-008 (1981). For example, according to the commission, Section 2921.42 of the Revised
Code prohibits a city council member from serving on the board of a non-profit corporation that
contracts to sell goods or services to the city. Ohio Ethics Comm’n, Op. 81-008 (1981). An
interest may be either pecuniary or fiduciary. Ohio Ethics Comm'n, Op.81-003 (1981), Op. 81-008
(1981).

Op. 91-11 3
However, the Ohio Ethics Commission has also expressed the opinion that public officials may
serve on nonprofit corporations contracting with a city provided that the following criteria apply: 1)
the governmental entity must create or be a participant in the non-profit corporation; 2) any public
official or employee connected with the jurisdiction, including a council member, may be
designated to serve on the non-profit corporation, but the elected legislative authority or the
appointed governing body must formally designate the office or position to represent the
governmental entity; 3) the public official or employee must be formally instructed to represent, the
governmental entity and its interests; and 4) there must be no other conflict of interest on the part of
the designated representative. Ohio Ethics Comm'n, Op. 84-001 (1984).
According to the commission, "[t]he official designation by a sovereign governmental entity,
requiring that a council member serve on the board of the non-profit community development
corporation in his official capacity, is sufficient to demonstrate that the public official does not
have a prohibited personal interest in the public contract." Id. Based on the above analysis, the
commission advised that Ohio Ethics Law and related statutes do not prohibit a city fire chief or
other city official or employee from serving on the board of a nonprofit corporation created by the
city and other jurisdictions to provide contract paramedic services, provided that he is serving in his
official capacity as designated by city council, and that no other conflict of interest exists. Id.
However, the criteria set forth by the Ethics Commission in Op. 84-001 (1984) allowing for public
officials to serve on non-profit corporations contracting with the city is not met by the facts
addressed in this opinion.
The court's involvement with the community re-entry detention program would require the judge to
decide whether a defendant found guilty of violating a municipal ordinance would be incarcerated
or given an opportunity to participate in the program. As a member or officer of the Board, the
judge might feel real, imagined or even subconscious pressure to refer as many participants as
possible to the program in order to ensure its success. No matter how forthright the judge, the
obvious concern is that a convicted defendant might question whether competing interests of the
judge influenced his sentence. Also, the public might lose faith in the justice system if it believes a
defendant might receive a different or more lenient sentence because of a judge's personal interest.
Finally, the judge in his fiduciary role as a Board member or officer, would be making decisions
regarding costs to the city for services provided by the program. Further, conflicts could occur if
the contract included provisions regarding joint hiring of a probation officer or hiring requirements
based on increased numbers of participants in the program.

Op. 91-11 4
In accord with the above interpretations of Ohio Ethics Law and related statutes by the Ohio Ethics
Commission, this Board is of the opinion that a judge who serves as a member or officer of the
Board of a nonprofit corporation that contracts with the city to provide services to the court, has an
interest in a contract between the corporation and the city and thus is, precluded by Ohio Revised
Code Section 2921.42 (A) (4) from serving on the Board.
It is also the opinion of this Board that Canon 5 and Canon 2 of the Code of Judicial Conduct
(Judicial Code) would prohibit a judge from serving as an officer or member of the nonprofit
corporation that contracts with the city to provide services to the court. Canon 5 B (1) and (2) are
set forth below.
B. Civic and Charitable Activities. A judge may participate in civic and charitable
activities that do not reflect adversely upon his impartiality or interfere with the
performance of his judicial duties. A judge may serve as an officer, director, trustee,
or non-legal advisor of an educational religious, charitable, fraternal, or civic
organization not conducted for the economic or political advantage of its members,
subject to the following limitations:
1. A judge should not serve if it is likely that the organization will be engaged in
proceedings that would ordinarily come before him or will be regularly engaged
in adversary proceedings in any court.
2. A judge should disqualify himself in any case in which the decision could affect
any organization which he serves as either an officer or member of the board.
Code of Judicial Conduct Canon 5 B (1) (2).
This Board has previously expressed the opinion that under the Judicial Code, a judge is not
prohibited from serving on the Board of Trustees of a college, Ohio Sup.Ct., Op. 89-3 (1989), nor
from being a trustee of a nonprofit foundation, Ohio Sup.Ct., Op 87-3 (1987), Op. 90-16 (1990).
However, these opinions do not address the issue of whether a judge is prohibited from serving as a
member or officer of a nonprofit corporation that contracts with the city to provide services to the
court.

Op. 91-11 5
Based on the facts presented, the nonprofit corporation through its community reentry detention
program, will frequently be involved with the municipal court. For example, the program staff
consults with the court, the probation officers and the workhouse, and makes decisions regarding
whether convicted defendants will enter the program as an alternative to incarceration. However,
under Canon 5 B (1), the judge should not serve on such an organization that would be engaged in
proceedings that would come before him. Further, the judge would be making sentencing decisions
that would affect the nonprofit corporation on which he serves as a member or officer of the Board.
Therefore, by the language of Canon 5 B (2), the judge should disqualify himself from cases in
which a decision would be made regarding entry into the program. Disqualification in every case
of this nature, would create a great inconvenience to the court.
Finally, under the broad mandate of Canon 2 of the Judicial Code, a judge should avoid
impropriety and the appearance of impropriety. Canon 2 B specifically contains a prohibition
against a judge allowing family, social or other relationships to influence his judicial conduct or
judgment. Serving on the Board of a corporation that contracts with the city to provide services to
the court on which the judge sits creates an appearance of impropriety. It also raises questions as to
whether the judge's relationship to the nonprofit corporation would influence his judicial conduct or
judgment, particularly with regard to sentencing.
In conclusion, it is the Board's opinion that the Code of Judicial Conduct, Ohio Ethics Law and
related statutes prohibit a judge from serving as a member or officer of a nonprofit corporation
contracting with the city to provide services to the municipal court by contract with the city.
This is an informal, non-binding advisory opinion, based upon the facts presented and limited
to questions arising under the Code of Judicial Conduct, Ohio Ethics Law and related
statutes. However, pursuant to Section 102.08 of the Ohio Revised Code, the requester may
reasonably rely on the opinion as it applies to Ohio Ethics Law and related statutes.