Ohio Board Advisory Opinion Op 06-007

The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
65 SOUTH FRONT STREET, 5TH FLOOR, COLUMBUS, OH 43215-3431
(614) 387-9370 (888) 664-8345 FAX: (614) 387-9379
www.sconet.state.oh.us
OFFICE OF SECRETARY
OPINION 2006-7
Issued August 4, 2006
[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superseded by the Ohio Code of Judicial Conduct, eff. 3/1/2009.]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 the Ohio Code of Judicial Conduct and Ohio
Ethics Law for a municipal court judge to serve on the board of trustees of a non-
profit corporation that provides mental health and chemical dependency
treatment and counseling services, when the non-profit corporation has a
contract to provide services to the court for the mental health program docket or
when municipal court defendants use the services of the non-profit to fulfill
conditions of court ordered probation.
OPINION: This opinion addresses a question regarding a municipal court judge
serving on the board of a non-profit corporation. This opinion does not consider
the issue of a judge serving on a board pursuant to a statutory mandate.
Is it proper for a municipal court judge to serve on the board of
trustees of a non-profit corporation that provides mental health and
chemical dependency treatment and counseling services, when the
non-profit has a contract to provide services to the court for the
mental health program docket or when municipal court defendants
use the services of the non-profit to fulfill conditions of court
ordered probation?
A municipal court judge is considering serving on the board of trustees of a non-
profit corporation that provides mental health and chemical (alcohol and/or
drug) dependency treatment and counseling services. The judge would receive
no compensation for serving on the board.
The municipal court has a mental health program docket. The inquiring judge
hears cases on the mental health program docket approximately once a year.
Interaction of the municipal court with non-profit providers of mental
health and chemical dependency treatment and counseling
The municipal court interacts with various providers of mental health and
chemical dependency treatment and counseling services in several ways.

Op. 2006-7 2
One, a municipal court judge will order a defendant to obtain mental health
and/or chemical dependency counseling and treatment, when appropriate, as a
condition of probation. For example, the court will mandate counseling as a
condition of probation for domestic violence offenders. Most often, the
municipal court will allow a defendant to choose a provider; however, the
probation officers may direct defendants to certain providers. The defendant is
responsible for paying for the services of the chosen provider.
Two, the municipal court enters contracts with various providers for specific
services needed by the court. For example, the court contracts with providers for
mental health assessments and for intensive alcohol treatment for multiple
offenders of operating a motor vehicle under the influence.
Three, the municipal court contracts with various providers to provide services
required in the operation of the mental health court program docket, such as
treatment providers and case managers.
Interaction of the municipal court with the non-profit corporation on
which the judge would serve on the board
The non-profit corporation, on which the judge would serve, describes itself as a
comprehensive mental health, chemical dependency, and healthcare organization
serving diverse populations regardless of their economic status. The non-profit
corporation offers services for individuals with severe and persistent mental
illness, services for homeless persons with severe and persistent mental illnesses,
adult and family outpatient services, chemical dependency outpatient services,
and residential housing programs. As part of its outpatient services, the
corporation provides what it describes as “criminal justice services” such as
domestic violence services, a stalking victims advocacy program, and a sex
offender treatment program. http://www.southeastinccom.gripserver.com (last
visited Jul. 7, 2006).
The non-profit corporation, on which the judge would serve, is a provider of
services that a municipal court defendant could use to fulfill the conditions of
court ordered probation.
The non-profit corporation, on which the judge would serve, currently does not
have a contract with the municipal court to provide health assessments or a
contract to provide intensive alcohol treatment for multiple offenders, but
potentially could bid on providing such services to the court in the future.
The non-profit corporation, on which board the judge would serve, has entered a
written memorandum of understanding with the municipal court [and with the
Alcohol Drug Addiction and Mental Health Services Board (ADAMH)] to
participate in the mental health court project. As part of the agreement, the court

Op. 2006-7 3
agrees to pay the non-profit corporation to provide a case manager for
individuals on the court’s mental health program docket. Also, pursuant to the
agreement, the non-profit corporation accepts responsibility for initiating and
maintaining treatment of each individual referred from the mental health
program docket.
Application of Ohio Ethics Law
Ohio Ethics Law is set forth in Chapter 102 and Sections 2921.42 and 2921.43 of
the Ohio Revised Code. Judges are subject to Ohio Ethics Law. Ohio Rev. Code
Ann. § 102.01 (B), (C), § 2921.01 (A), (B) (West Supp. 2006).
The appropriate advisory body for Ohio Ethics Law matters relating to judicial
officers and judicial employees is the Board of Commissioners on Grievances and
Discipline. Ohio Rev. Code Ann. § 102.01(F)(2) (West Supp. 2006) and § 102.08
(West 2002).
Pertinent to this opinion is R.C. 2921.42(A)(4), a provision of Ohio Ethics Law,
which prohibits a judge from having an interest in a public contract with the
court with which the judge is connected.
R.C. 2921.42(A) No public official shall knowingly do any of the
following:
(4) Have 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 [she] is connected.
Ohio Rev. Code Ann. § 2921.42(A) (West 1997).
A public contract is defined as follows:
R.C. 2921.42(G) As used in this section:
(1) ‘Public contract’ means any of the following:
(a) The purchase or acquisition, or a contract for the
purchase or acquisition, of property or services by
or for the use of the state, any of its political
subdivisions, or any agency or instrumentality of
either, including the employment of an individual
by the state, any of its political subdivisions, or any
agency or instrumentality of either;

Op. 2006-7 4
(b) A contract for the design, construction, alteration,
repair, or maintenance of any public property.
Ohio Rev. Code Ann. § 2921.42(G) (West 1997).
An “interest” in a public contract may be either pecuniary or fiduciary. A board
member of a non-profit corporation has an “interest” in the contracts of the non-
profit corporation. See Ohio SupCt, Bd Comm’rs on Grievances & Discipline, Op.
91-11 (1991), Ohio Ethics Comm’n Op. 81-008 (1981), Ohio Ethics Comm’n, Op.
81-003 (1981).
A municipal court judge is prohibited by R.C. 2921.42(A)(4) from serving on the
board of a non-profit corporation that has a contract with the municipal court to
provide services. See Ohio SupCt, Bd Comm’rs on Grievances & Discipline, Op.
91-11 (1991).
Even though the mental health program docket is separate from the general
docket and even though the inquiring judge hears cases on the mental health
program docket only once a year, it is improper for the judge to serve. The
mental health program docket is part of the municipal court. There is a public
contract between the municipal court and the non-profit corporation. A judge
serving as a board member would have a prohibited interest in a public contract.
Thus, under Section 2921.42 (A)(4), a municipal court judge may not serve on the
board of trustees of a non-profit corporation that provides mental health and
chemical dependency treatment and counseling services if the municipal court
has an agreement to pay the non-profit corporation for providing services to the
court’s mental health program docket.
Further, under Sections 102.03(D) and (E), a municipal court judge should not
serve on the board of trustees of a non-profit corporation that provides mental
health and chemical dependency treatment and counseling services, when
municipal court defendants fulfill conditions of their court-ordered probation by
using, and sometimes being directed by the probation office to use, the services of
the non-profit.
Section 102.03(D) states that no judge “shall use or authorize the use of the
authority or influence of 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 the public official or employee with
respect to that person’s duties.” Ohio Rev. Code Ann § 102.03(D) (West Supp.
2006). Section 102.03(E) states that no judge “shall solicit or accept anything of
value that is of such a character as to manifest a substantial and improper
influence upon the public official or employee with respect to that person’s
duties.” Ohio Rev. Code Ann § 102.03(E) (West Supp. 2006). Section 102.03(F)
states “[n]o person shall promise or give to a public official or employee anything
of value that is of such a character as to manifest a substantial and improper

Op. 2006-7 5
influence upon the public official or employee with respect to that person’s
duties.” Ohio Rev. Code Ann § 102.03(F) (West Supp. 2006).
“Anything of value” includes among other things, money, goods, chattels, any
interest in realty, a promise of future employment, and every other thing of value.
Ohio Rev. Code Ann. §1.03 (West 2004) and § 102.01(G) (West Supp. 2006). A
thing of value that is more than nominal or de minimis is a “substantial”
influence. A thing of value from a party interested in matters before, regulated by
or doing or seeking to do business with the public agency is considered an
improper influence. See Ohio SupCt, Bd Comm’rs on Grievances & Discipline,
Op.2004-5 (2004).
A judge has the duty to decide a sentence and a condition of probation. The
judge’s proposed service as a member on a non-profit board that provides
services utilized by defendants (either through the defendant’s own choice or
through the direction of the probation office) to fulfill a condition of probation
could be viewed as a thing of value that might manifest a substantial and
improper influence upon the judge with regard to sentencing and probation
decisions.
Application of Ohio Code of Judicial Conduct
The Ohio Code of Judicial Conduct is also applicable. Canon 2(B) allows a judge
to 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 limitations listed in Canon 2(B)(1) and the other requirements of
the Code of Judicial Conduct.
The limitations in Canon 2(B)(1) are as follows:
Canon 2(B)(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.
The non-profit corporation, on which the judge would serve, is considered to be
an organization engaged in proceedings that ordinarily would come before the
judge. Defendants in municipal court exercise the choice of using the services of
that non-profit corporation to fulfill the conditions of court ordered probation.

Op. 2006-7 6
At times, the defendants may be directed by the probation office to the non-profit
corporation.
The requirements of Canon 1 are applicable. Canon 1 requires that a judge
uphold the integrity and independence of the judiciary. Under Canon 1 “[a] judge
should participate in establishing, maintaining, and enforcing high standards of
conduct, and personally shall observe those standards so that the integrity and
independence of the judiciary will be preserved.” The integrity and independence
of the judiciary is not maintained if a judge serves on the board of a non-profit
corporation that provides defendants of the court with services needed to fulfill
court ordered conditions of probation. The appearance is that a judge’s decision
to impose certain conditions of probation may be influenced by the judge’s
fiduciary interest in the promoting the use of the services of the non-profit
corporation on which he or she serves.
Thus, under Canon 1 and Canon (2)(B)(1), a municipal court judge may not serve
on the board of trustees of a non-profit corporation that provides mental health
and chemical dependency treatment and counseling services if the municipal
court has an agreement to pay the non-profit corporation for services to the
court’s mental health docket program docket.
Conclusion
It is improper under the Ohio Code of Judicial Conduct and Ohio Ethics Law for a
municipal court judge to serve on the board of trustees of a non-profit
corporation that provides mental health and chemical dependency treatment and
counseling services, when the non-profit corporation has a contract to provide
services to the court for the mental health program docket or when municipal
court defendants use the services of the non-profit to fulfill conditions of court
ordered probation.
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. Pursuant to Section 102.08 of the Ohio
Revised Code, the requester of the opinion may reasonably rely on the
opinion as it applies to Ohio Ethics Law and related statutes.