Can a court accept a donation of firearms from a company for use in court security?

Currency note

This opinion was issued in 2004 under the former Ohio Code of Judicial Conduct, which the Board flagged as superseded by the Ohio Code of Judicial Conduct effective March 1, 2009. The provisions on impropriety and on gifts to a court discussed here have been renumbered and revised in the current Code. Treat this page as historical context, not current guidance. Verify against the current Ohio Code of Judicial Conduct before relying on any specific rule mentioned here.

Plain-English summary

The Board addressed whether a municipal court judge could accept a donation of ten carbines, offered to the court's probation department for use in court security. The Board concluded that the judge should not accept the donation.

Its reasoning rested on the appearance of impropriety. The Board observed that court security should not be an afterthought met fortuitously through a generous donation from a company that may in the future do business with the court or have an interest in the judge's rulings in firearms cases. A donation of carbines to a court creates an appearance that the court's security is haphazard, or that a firearms company is attempting to influence the court. The Board concluded that if carbines are necessary to court security, the court should purchase them.

Common questions

Q: Can a court accept donated firearms for security from a private company?

A: No, under this opinion. It concluded a judge should not accept a company's donation of carbines for court security because of the appearance of impropriety.

Q: What should the court do if it needs the firearms?

A: Per the opinion, if the carbines are necessary to court security, the court should purchase them rather than accept them as a donation.

Background and rules framework

The opinion applies the former Ohio Code of Judicial Conduct's prohibition on impropriety and the appearance of impropriety (Canon 2) and its limits on a court's or judge's acceptance of gifts (Canon 4), to a proposed donation from a company with potential future business or case interests before the court. These provisions are addressed, renumbered and revised, in the current Code.

Citations and references

Rules of Judicial Conduct:

• Former Ohio Code of Judicial Conduct Canon 2 (impropriety and its appearance); Canon 4 (gifts)

See also

• Ohio BPC Op. 1998-010: Gifts to Judges (Country Club, Golf, Sports Tickets)
• Ohio BPC Op. 2004-006: A Judge Establishing a Court Arts Committee and Accepting Donated Artwork
• Ohio BPC Op. 1995-008: Judge Accepting a Waived Seminar Registration Fee

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-04-005.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

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 2004-5
                                 Issued August 6, 2004

[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: Under the Ohio Code of Judicial Conduct, a municipal court judge
should not accept a donation of ten carbines to a court’s probation department
for use in court security. Court security should not be an afterthought
fortuitously met through a generous donation from a company that may in the
future do business with the court or have an interest in the judge’s rulings in
firearms cases. A donation of carbines to a court creates an appearance of
impropriety that the court’s security is haphazard or that a firearms company is
attempting to influence the court. If carbines are necessary to court security, the
court should purchase the carbines.

OPINION: The opinion addresses a question regarding a judge accepting a
donation of carbines to the court’s probation department for use in court
security.

   Is it proper for a judge of a municipal court to authorize the
   acceptance of a donation of ten carbines from a firearms company
   to the probation department for use in court security?

A firearms company wants to donate ten carbines to a court’s probation
department. The donated carbines are for use in court security by probation
officers, bailiffs, and court security staff, but not for any other use. The firearms
company is not asking for anything in return for the donation. The company has
never done business with the court. The court purchases guns infrequently, on as
needed basis, but has never purchased guns from this firearms company.

The Ohio Code of Judicial Conduct and Ohio Ethics Law govern the issue. The
Board of Commissioners on Grievances and Discipline is the appropriate ethics
commission to render advice on Ohio Ethics Law for matters relating to judicial
officers and employees. See Ohio Rev.Code Ann §102.01(F)(2) (West 2002) and
§102.08 (West 2002). The Board is the advisory body for rendering advice on the
application of the Ohio Code of Judicial Conduct. See Gov.Bar R. V §(2)(C).

Op. 2004-5 2

Ohio Code of Judicial Conduct

Canon 2(C)(5) of the Ohio Code of Judicial Conduct restricts gifts to judges, but is
not applicable herein. The carbines are a donation to the court’s probation
department. The carbines are not a gift to a judge. The carbines are not for the
judge’s personal use or for personal use by any court employee.

Canon 3(C) is applicable because acceptance of a donation of carbines to a court
requires the exercise of a judge’s administrative duties. Canon 3(C)(1) requires
that the discharge of administrative duties be diligent and without bias or
prejudice. As part of making a diligent decision, a judge should consider whether
there is an actual need for the carbines.

Canon 2 is also applicable. A judge should consider the requirements of Canon 2
that “[a] judge shall act at all times in a manner that promotes public confidence
in the integrity and impartiality of the judiciary.” A judge’s decision to accept a
donation on behalf of a court must be made with due consideration for the
perception it may create to the public. Offers of great generosity and magnitude
may create appearances of partiality and impropriety.

In addition, a judge must consider DR 8-101(A)(3) of the Ohio Code of
Professional Responsibility: a lawyer who holds a public office is not permitted
to “[a]ccept any thing of value from any person when the lawyer knows or it is
obvious that the offer is for the purpose of influencing his [her] action as a public
official.” Judges are lawyers and are subject to the Ohio Code of Professional
Responsibility. Gov.Jud R. I §1. A judge must consider whether a donation is an
attempt to influence the judge. If a judge knows that the purpose of a donation is
to influence judicial actions, the judge must not accept the donation.

An offer of ten carbines is generous and unusual. A judge must question why a
firearms company wants to donate ten carbines to the court. Is it to put the
company in a position to influence future purchases of firearms from the
company? Is the donation an attempt to influence the judge with regard to cases
involving firearms? What will be the public perception of such donation? If the
firearms are necessary for court security, why has not the court already
purchased such items to protect the court, its employees, and the public? On its
face, the offer creates an appearance of impropriety.

Thus, the Board’s view as to the facts presented is as follows. Under the Ohio
Code of Judicial Conduct, a judge should not accept a donation of ten carbines to
a court’s probation department for use in court security. Court security should
not be an afterthought fortuitously met through a generous donation from a
company that may in the future do business with the court, or have an interest in
the judge’s rulings in firearms cases. A donation of carbines to a court creates an
appearance of impropriety that the court’s security is haphazard or that a

Op. 2004-5 3

firearms company is attempting to influence the court. If carbines are necessary
to court security, the court should purchase the carbines.

Ohio Ethics Law

Ohio Ethics Law is set forth in Chapter 102 and related statutes Sections 2921.01,
2921.42, 2921.421, and 2921.43 of the Ohio Revised Code. For purposes of Ohio
Ethics Law, judicial officers and judicial employees are “public officials and
employees” and courts are “public agencies.” Ohio Rev.Code Ann. §102.01(B),
(C) (West 2002).

Pertinent to this opinion is Section 102.03 of the Ohio Revised Code, prohibiting
misuse of public office to secure a thing of value that manifests a substantial and
improper influence with respect to official duties.

   Section 102.03

   (D) No public official or employee 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.

   (E) No public official or employee 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.

  (F) No 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 influence upon the public official or
  employee with respect to that person’s duties.

Ohio Rev.Code Ann. §102.03 (D), (E), (F) (West 2002).

To invoke the restrictions of Section 102.03(D), (E), and (F): 1) there must be a
thing of value; and 2) the thing of value must be of such a character as to manifest
a substantial and improper influence with respect to official duties.

What is “anything of value?” “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 2002).

What is a “substantial and improper influence?” A thing of value that is more
than nominal or de minimis is a “substantial” influence. A thing of value from a

Op. 2004-5 4

party interested in matters before, regulated by, or doing or seeking to do
business with the public agency is considered an “improper” influence.

As interpreted by the Ohio Ethics Commission in Opinion 89-002, R.C. 102.03 is
not applicable when the thing of value goes to a public agency as opposed to an
individual.

  R.C. 102.03 has been interpreted to apply only to those situations
  where a public official or employee, or someone to whom he is
  related in his private capacity, would receive a thing of value. R.C.
  102.03(D) and (E) prohibits individuals—public officials and
  employees—from improperly accepting, soliciting, or using their
  position to secure anything of value. The prohibitions of R.C.
  102.03(D) and (E) do not apply to the receipt of items by the state,
  or any agency, board, or commission thereof. Similarly, R.C.
  102.03(F) prohibits donations to individuals—public officials and
  employees—rather than to the state or an agency thereof.

Ohio Ethics Commission, Op. 89-002 (1989) (permitting private companies to
donate industrial and safety equipment to the Industrial Commission, so long as
no official or employee of the Commission benefits personally from the
equipment, and so long as the donation is voluntary).

This Board agrees. Donations of things of value to a court are distinct from
donation of things of value to individual judicial officers and employees, and are
not prohibited by Section 102.03. See e.g., Ohio SupCt, Bd Comm’rs on
Grievances & Discipline, Op. 2004-6 (2004).

Nevertheless, although a municipal court judge would not violate Ohio Ethics
Law by authorizing the acceptance of a donation of ten carbines to a court’s
probation department when no judge or judicial employee benefits personally
from the equipment and the donation is voluntary; the donation is improper
because it violates the Ohio Code of Judicial Conduct.

Conclusion

Under the Ohio Code of Judicial Conduct, a municipal court judge should not
accept a donation of ten carbines to a court’s probation department for use in
court security. Court security should not be an afterthought fortuitously met
through a generous donation from a company that may in the future do business
with the court, or have an interest in the judge’s rulings in firearms cases. A
donation of carbines to a court creates an appearance of impropriety that the
court’s security is haphazard or that a firearms company is attempting to
influence the court. If carbines are necessary to court security, the court should
purchase the carbines.

Op. 2004-5 5

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. 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.