Ohio Board Advisory Opinion Op 04-003

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 2004-3
Issued June 3, 2004
Withdrawn by Adv. Op. 2022-09, 2022-10
[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superseded by the Ohio Code of Judicial Conduct, eff. 3/1/2009.]
SYLLABUS: It is improper under Canon 7(B)(4) for a full-time or part-time magistrate
to serve on a local, city, or state board of education or to run for election or re-election to
a board of education. The Board suggests that this advice apply prospectively.
It is improper under Canon 7(B)(4) for a full-time or part-time magistrate to serve on a
board of county commissioners or to run for election or re-election to a board of county
commissioners. The Board suggests that this advice apply prospectively.
It is proper under Canon 2(C)(2) for a full-time or part-time magistrate to serve as trustee
of a condominium association, which is a non-profit corporation of the condominiums
where the magistrate resides and is an owner. If the condominium association becomes a
party in a proceeding before the magistrate, the magistrate should disqualify himself or
herself under Canon 3(E)(1).
OPINION: This opinion addresses three questions: two questions regarding magistrates
seeking non-judicial elective offices and one question regarding a magistrate serving as a
trustee of a non-profit corporation.
1. Is it proper for a full-time or part-time magistrate to serve on a local
board of education or to run for election or re-election to the board?
2. Is it proper for a full-time or part-time magistrate to serve on a board
of county commissioners or to run for election or re-election to the
board?
3. Is it proper for a full-time or part-time magistrate to serve as trustee of
a condominium association, which is a non-profit corporation of the
condominiums where the magistrate resides and is an owner?
Question One and Two
Is it proper for a full-time or part-time magistrate to serve on a local board
of education or to run for election or re-election to the board?
Is it proper for a full-time or part-time magistrate to serve on a board of
county commissioners or to run for election or re-election to the board?

Op. 2004-3 2
The position of local board of education member is an elective office. See Ohio Rev.
Code Ann. § 3313.01 (West 1995). The position of county commissioner is an elective
office. See Ohio Rev. Code Ann. § 305.01 (West 1994).
The Ohio Constitution and related statutes prohibit judges from holding any other office
of profit or trust under authority of Ohio or of the United States. See Ohio Const. Art IV.
§ 6 (B); Ohio Rev. Code Ann. § 141.04 (D) (West 2002) [chief justice of the supreme
court, justices of the supreme court, court of appeals judges, court of common pleas
judges, probate court judges] Ohio Rev. Code Ann. § 1901.11(D) (West Supp. 2004)
[municipal judges]; Ohio Rev. Code Ann. § 1907.16(B) (West Supp. 2004) [county court
judges].
Thus, pursuant to state constitution and laws, Ohio judges may not serve as members of
boards of education. See e.g., OAG Opinion 86-004 (“A judge of a municipal court is
prohibited by Ohio Const. art. IV, §6(B) and R.C. 1901.11 from holding the position of
member of a board of education of a local school district.”); OAG Op. 141 (1909) (“A
probate judge may not serve or be candidate for member of board of education.”); OAG
Opinion 277 (1907) (probate court judge is incompatible with member of village board of
education). Further, Ohio law prohibits voting members of the state board of education
from holding another public position of trust or profit. Ohio Rev. Code Ann. §
3301.03(C) (West Supp. 2002). Thus, the law prohibits members of a state board of
education from serving as a judge. See e.g., OAG Opinion 65-61 (1965) (“A member of
the State Board of Education may not accept an appointment by a municipal Judge as
substitute during the judge’s vacation period.”); OAG Opinion 512 (1910) (“A member
of a board of education vacates such office by qualifying for the office of common pleas
judge.”).
Resolution of the issue of whether an individual may simultaneously serve as magistrate
while seeking election to or serving in a non-judicial elected position lies solely within
the Ohio Code of Judicial Conduct. Magistrates, unlike judges, are not subject to the
constitutional and statutory prohibitions on holding any other office of profit or trust
under authority of Ohio or the United States. “Because the prohibition of Ohio Const.
art. IV, § 6(B) and R.C. 141.04(D) does not expressly include magistrates, the prohibition
is not applicable to magistrates.” OAG Opinion 96-062 (1996) (n.1). [Nevertheless, “the
position of magistrate is, for purposes of Ohio Const. Art. IV. §6, an office of trust or
profit under the authority of the state.” See OAG 96-024 (1996).]
Pursuant to Canon 7(B)(4) of the Ohio Code of Judicial Conduct, a judge must resign
from judicial office while running for a non-judicial office.
Canon 7(B)(4) A judge shall resign from office when he or she becomes a
candidate in a primary or general election for a non-judicial office. A
judge may continue to hold judicial office while he or she is a candidate
for election to or serving as a delegate in a state constitutional convention,
if the judge is otherwise permitted by law to do so.

Op. 2004-3 3
Pursuant to the section on Compliance with the Code of Judicial Conduct, magistrates,
like judges, are subject to Canon 7(B)(4). Full-time magistrates, like full-time judges,
must comply with all of the provisions of the Ohio Code of Judicial Conduct. Part-time
magistrates, like part-time judges must comply with all of the provisions of the Ohio
Code of Judicial Conduct except for Canon 2(C)(3); Canon 4(C)(2), (D), (E), (F); and
Canon 2(D)(3) (but must file the annual disclosure statement). See Compliance with the
Code of Judicial Conduct.
It is the Board’s view that the position of magistrate is an “office” as used in Canon
7(B)(4). Thus, under Canon 7(B)(4), a full-time or part-time magistrate is required to
resign the office of magistrate while running for a non-judicial elective office.
The requester suggests that a part-time magistrate may be permitted to serve in non-
judicial elective offices such as a local board of education member or a county
commissioner because part-time magistrates are not required to comply with Canon
4(C)(2). Through the Compliance Section of the Ohio Code of Judicial Conduct, part-
time magistrates are not required to comply with Canon 4(C)(2), but Canon 4(C)(2) has
no bearing on the issue raised. Canon 4(C)(2) addresses appointment to a governmental
committee or commission or other governmental position. Canon 4(C)(2) does not
control the issue of seeking or serving in a non-judicial elective office.
Canon 4(C)(2) A judge shall not accept appointment to a governmental
committee or commission or other governmental position that is
concerned with issues of fact or policy on matters other than the
improvement of the law, the legal system or the administration of justice.
A judge may represent a country, state, or locality on ceremonial
occasions or in connection with historical, educational or cultural
activities.
On June 22, 1987, this Board advised that a part-time referee “may serve as a member or
officer of a local Board of Education.” See, Ohio SupCt Bd Comm’rs on Grievances and
Discipline, Op. 87-032 (1987). Opinion 87-032 did not address the application of the
Canon 7(B)(4), the rule regarding resignation of office when running for a non-judicial
elective office. On December 5, 1997, the Board withdrew Opinion 87-032 thus
revoking the advice that a part-time referee may serve as a member or officer of a local
board of education.
Why is it that Canon 7(B)(4) requires a judge or magistrate to resign from judicial office
when running for a non-judicial office? “The avoidance of the appearance of impropriety
or of trading on the prestige and dignity of the judicial office, and the fear of involving
the court in political controversy are sound reasons for the resignation requirement.” E.
Wayne Thode, Reporter’s Notes to Code of Judicial Conduct 29 (1973). Whether
seeking or holding non-judicial elective office, these ethical concerns apply with equal
force.

Op. 2004-3 4
It strains credibility to read the Canon 7(B)(4) as prohibiting seeking election to non-
judicial office, but permitting the holding of a non-judicial office. Thus, it is the Board’s
view that if an individual holds an elected non-judicial office and subsequently receives
an appointment as magistrate, a choice is required. The individual should either decline
the appointment as magistrate or resign from the non-judicial elective office and accept
the appointment as magistrate.
Upon thorough consideration of Canon 7(B)(4), the Board now advises as follows. It is
improper under Canon 7(B)(4) for a full-time or part-time magistrate to serve on a local,
city, or state board of education or to run for election or re-election to a board of
education. It is improper under Canon 7(B)(4) for a full-time or part-time magistrate to
serve on a board of county commissioners or to run for election or re-election to a board
of county commissioners. The Board suggests that the advice should apply
prospectively.
Question Three
Is it proper for full-time or part-time magistrate to serve as trustee of a
condominium association, which is a non-profit corporation of the
condominiums where the magistrate resides and is an owner?
The Board must determine whether a part-time magistrate serving as a trustee of a
condominium association for condominiums where the magistrate resides and is an
owner, is a permitted extrajudicial activity under Canon 2(B), a permitted real estate
activity under Canon 2(C)(2), or a prohibited business activity under Canon 2(C)(1) and
(3).
The pertinent provisions of the Ohio Code of Judicial Conduct are set forth.
Canon 2(B)
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 profit, subject to the following limitations and other
requirements of this Code.
(1) A judge shall not serve as an officer, director, trustee, or non-legal
advisor if it is likely that the organization will be engaged in either of
the following:
(a) Proceedings that ordinarily would come before the judge;
(b) Adversary proceedings with frequency in the court of which
the judge is a member or in any court subject to the appellate
jurisdiction of the court of which the judge is a member.

Op. 2004-3 5
Canon 2(C)
(1) A judge shall not engage in either of the following financial and
business dealings:
(a) Dealings that reasonably may be perceived to exploit the judge’s
judicial position;
(b) Dealings that involve the judge in frequent transactions or
continuing business relationships with lawyers or other persons
likely to come before the court on which the judge serves.
(2) Subject to the requirements of this Code, a judge may hold and
manage investments of the judge and members of the judge’s family,
including real estate, and engage in other remunerative activity.
(3) A judge shall not serve as an officer, director, manager, general
partner, advisor, or employee of any business entity except that a
judge, subject to the requirements of this Code, may manage and
participate in either of the following:
a. A business closely held by the judge or member of the judge’s
family;
b. A business entity primarily engaged in investment of the
financial resources of the judge or members of the judge’s
family.
A New York Commission on Judicial Conduct offered advice that “[a] recently appointed
judge may continue to serve as treasurer and member of the Board of Directors of the co-
operative apartment building where the judge resides.” New York, Commission on
Judicial Conduct, Op. 98-93 (1998). The committee found no ethical barrier, stating it
did not appear that serving as treasurer for the co-operative would involve the inquirer in
rendering legal or investment advice, it appeared unlikely to interfere with the proper
performance of judicial duties, and did not appear to be incompatible with the judicial
office. Id.
A Virginia Judicial Ethics Advisory Committee addressed the question “[m]ay an active
judge serve as an officer and/or director of a Property Owners Association related to the
judge’s residence?” The committee answered “[y]es, provided that serving in such
positions does not interfere with the judge’s judicial duties; that it is not likely the
association will be engaged in litigation that would ordinarily come before his court; and
that he not act as the association’s legal advisor nor personally participate in the
solicitation of funds.” Commonwealth of Virginia, Judicial Ethics Advisory Committee,
Op. 00-9 (2000).

Op. 2004-3 6
As aptly stated by the Virginia committee:
While a property owners association is not clearly a “civic” organization
permitted under Canon 4(C)(3) [similar to Ohio Canon 2(B)] and is not a
business entity prohibited under Canon 4(D)(3) [similar to Ohio Canon
2(C)(3)], it has attributes of both but is more similar to a real estate
holding or investment permitted by Canon 4(D)(2) [similar to Ohio Canon
2(C)(2)]. The activities are confined to the saving of expense rather than
the generation of profit and while other homeowners may share in the
benefits, the judge would still find it necessary to assume these duties
living in a private home not associated with other property owners. See
U.S. Advisory Opinion 29 (1973), revised Jan. 16, 1998.
Commonwealth of Virginia, Judicial Ethics Advisory Committee, Op. 00-9 (2000).
This Board agrees that a property owners association is not clearly a civic organization
for purposes of Canon 2(B) and is not a business entity for purposes of Canon 2(C)(3)
although it may have attributes of both. It is more similar to a real estate holding that is
permitted by Canon 2(C)(2).
Thus, the Board advises that it is proper under Canon 2(C)(2) for a full-time or part-time
magistrate to serve as trustee of a condominium association which is a non-profit
corporation of the condominiums where the magistrate resides and is an owner. If the
condominium association becomes a party in a proceeding before the magistrate, the
magistrate should disqualify himself or herself under Canon 3(E)(1).
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.