Can a probate judge teach a training course for county agency employees and accept pay for it?

Currency note

This opinion was issued in 2006 under the former Ohio Code of Judicial Conduct, which the Board flagged as superseded by the Ohio Code of Judicial Conduct effective March 1, 2009.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 integrity, impartiality, and compensation provisions discussed here have been renumbered and revised in the current Code, and the Ohio Ethics Law statutes may have been amended. Treat this page as historical context, not current guidance. Verify against the current Code and current statutes before relying on any specific rule mentioned here.

Plain-English summary

The Board addressed whether a probate judge may teach a six-hour course on adult protective services at a training program for employees of county departments of job and family services. It concluded that the judge may teach the course, provided the activity does not interfere with the performance of judicial duties. That much is permissible extra-judicial teaching.

The Board drew the line at payment. The judge should not accept compensation for the activity. Compensation from the state department of job and family services would not uphold the integrity, independence, and impartiality of the judiciary required under Canons 1 and 2, and under Ohio Ethics Law it would be an honorarium, improper compensation, and an unlawful interest in a public contract. The Board recommended that the opinion apply prospectively.

Common questions

Q: Can a probate judge teach a training course for a county agency?

A: Yes. The opinion concluded a probate judge may teach the six-hour adult-protective-services course if it does not interfere with judicial duties.

Q: Can the judge be paid for teaching it?

A: No. Per the opinion, the judge should not accept compensation; payment from the state department would be an honorarium, improper compensation, and an unlawful interest in a public contract, and would not uphold judicial integrity under Canons 1 and 2.

Background and rules framework

The opinion applies the former Ohio Code of Judicial Conduct Canon 1 (integrity and independence of the judiciary) and Canon 2 (avoiding impropriety and its appearance), together with Ohio Ethics Law (including R.C. 2921.43 on soliciting or accepting improper compensation). These provisions are addressed, renumbered and revised, in the current Code, and the statutes may have changed since 2006.

Citations and references

Rules of Judicial Conduct:

• Former Ohio Code of Judicial Conduct Canon 1, Canon 2

Statutes:

• Ohio Rev. Code 2921.43 (soliciting or accepting improper compensation)

See also

• Ohio BPC Op. 1986-002: Judge Teaching a University Class
• Ohio BPC Op. 2003-006: A Judge Refereeing Soccer Games for a Non-Profit Organization for Compensation
• 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-06-003.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 2006-3
Issued April 7, 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: A probate judge may teach a six hour course on the topic of adult
protective services at a training program for employees of county departments of
job and family services, provided the activity does not interfere with the
performance of judicial duties, but the probate judge should not accept
compensation. Compensation for such activity is prohibited under both the Ohio
Code of Judicial Conduct and Ohio Ethics Law. Compensation to the probate
judge from the state department of job and family services does not uphold the
integrity, independence, and impartiality of the judiciary as required under
Canons 1 and 2 of the Ohio Code of Judicial Conduct and would be an
honorarium, improper compensation, and an unlawful interest in a public
contract under Ohio Ethics Law. Prospective application of this opinion is
recommended.

OPINION: This opinion addresses a question regarding probate juvenile judges
providing training to employees of county department of job and family services
for compensation.

   Is it proper for a probate judge to serve as a “trainer” for the Ohio
   Department of Jobs and Family Services, teaching a six hour course
   on the topic of adult protective services at a training program for
   employees of county departments of job and family services, and to
   receive compensation?

Probate judges have been asked to help train employees of county departments of
job and family services by teaching a six hour course on the topic of adult
protective services. As proposed, the probate judges are asked to present the
topic of “Basic Legal Framework for Adult Protective Services” covering six areas:
legal structure; state statutes for protecting older adults; interpreting law;
application of the law; unraveling key legal concepts; legal actions against elder
abuse perpetrators.

As part of the process, a probate judge would enter an agreement with a county
department of job and family services. The purpose of the agreement is to
provide inservice training workshops to staff in county agencies through the Ohio
Human Services Training System. The agreement refers to the county

Op. 2006-3 2

department of job and family services as the “regional training center.” The
agreement refers to the judge as the “trainer.” The state department of job and
family services (ODJFS) is the contract manager and serves as the state
coordinator for the Ohio Human Services Training System. The regional training
coordinator is responsible for the operation of the regional training center and
the Ohio Human Services Training System. The regional training coordinator
collaborates with the trainers to determine course outline, training content,
methods of presentation, and handouts for the training program.

Prior to serving as a trainer, a probate judge would attend an orientation and
training session sponsored by the Ohio Human Services Training System. At the
session, the judge/trainer is asked to sign a statement “I have reviewed Ohio R.C.
102.04 and I am in compliance with all provisions of this section.” R.C. 102.04 is
a provision of Ohio Ethics Law addressing compensation, but the courts are
expressly excluded from this provision. Therefore, R.C. 102.04 is not further
discussed herein, other than to observe that there is no reason for a judge to sign
such a statement. Sections of Ohio Ethics Law pertinent to judges are addressed
below.

The signed agreement between the judge/trainer and the county department of
job and family services/regional training center establishes the dates, times,
topic, and location. The trainer agrees to collaborate with the regional training
coordinator to determine the course outline, training content, methods of
presentation and handouts. The trainer agrees to work with the Ohio Human
Services Training System to ensure that the training is culturally specific and
promotes cultural competence. The trainer agrees to provide handouts to the
regional coordinator. The trainer agrees to provide travel, lodging and personal
arrangements and costs of completing the activities. The trainer agrees to pay all
income taxes and social security payments on moneys earned. The trainer agrees
to assume responsibility for personal liability insurance and for accidents or
injury. The trainer agrees that he or she may be removed for failure to meet the
standards in the application and certification process.

Pursuant to the agreement, the state coordinator/contract manager (the state
department of job and family services) “retains the right to review and approve
all training plans and materials to be used by the trainer in the implementation of
training activities and to make the final determination of the scope and nature of
the training services provided by the Trainer.”

Pursuant to the agreement, upon completion of the training days designated in
the contract, the county department of job and family services/central regional
training center, acting as the Fiscal Agent for the Ohio Human Services Training
System, pays the trainer five hundred dollars per training day of six in-class
hours.

Op. 2006-3 3

Judges are subject to the Ohio Code of Professional Responsibility, the
Ohio Code of Judicial Conduct and Ohio Ethics Law

As attorneys and officers of the court, judges are subject to the Ohio Code of
Professional Responsibility and the Ohio Code of Judicial Conduct. See Gov.Jud.
R. I § 1. As public officers, judges are subject to Ohio Ethics Law. See Ohio Rev.
Code Ann § 102.01(B)-(C).

The Ohio Code of Judicial Conduct and Ohio Ethics Law are pertinent to the
question presented. As addressed herein, the proposed teaching activity is
permitted by the Ohio Code of Judicial Conduct, but compensation for the
proposed teaching activity is inappropriate under both the Ohio Code of Judicial
Conduct and Ohio Ethics Law.

Judges are permitted by the Ohio Code of Judicial Conduct to engage in
teaching activities.

The reference to a judge’s teaching activities appears in Canon 2(A)(1) of the Ohio
Code of Judicial Conduct: “A judge may speak, write, lecture, teach, and
participate in other activities concerning the law, the legal system, and the
administration of justice.” Although it is unstated in the Code, it is logical that a
judge also may write, lecture, teach, and speak on non-law related subjects.

Canon 2(A) conditions a judge’s ability to engage in such activities upon the
requirement that the “activities do not cast doubt on the judge’s capacity to act
impartially as a judge, demean the judicial office, or interfere with the proper
performance of judicial duties.”

Compensation for a engaging in a teaching activity is not always proper

Compensation for teaching activities is generally permitted by the Ohio Code of
Judicial Conduct, but subject to conditions imposed by the Code. Compensation
for teaching activities is also subject to restrictions imposed by Ohio Ethics Law.

Under Canon 2(D) and 2(D)(1)-(2) of the Ohio Code of Judicial Conduct, a judge
may accept compensation or reimbursement for activities permitted by the Code,
provided that: the source of the compensation or reimbursement does not give
the appearance of influencing the judge in his or her judicial duties or otherwise
give the appearance of impropriety; the compensation does not exceed a
reasonable amount or what a non-judge would receive for the same activity; and
the expense reimbursement is limited to the actual cost of travel, food, and
lodging reasonably incurred. But, compensation must be reported. Under Canon
2(D)(3)(a) an annual financial disclosure form must be filed, and under Canon
2(D)(3)(b) an annual quasi-judicial or extra-judicial activity form must be filed.

Op. 2006-3 4

Ohio Ethics Law sharply curtails the ability of a judge to accept certain
compensation even if permitted by the Ohio Code of Judicial Conduct.

Judges are not permitted to accept an honorarium under Ohio Ethics Law.

Ohio Ethics Law amendments, effective May 12, 1994, prohibit public officials or
employees, from accepting compensation considered an “honorarium.”

  R.C. 102.03 (H)(1) No public official or employee . . . who is
  required to file a financial disclosure statement under section
  102.02 of the Revised Code shall solicit or accept, and no person
  shall give to that public official or employee, an honorarium.

Ohio Rev. Code Ann. § 102.03(H)(1) (West Supp. 2005).

Honorarium is expansively defined in R.C. 102.01(H), circumscribing
compensation for a broad range of activities, including payment for any speech
given.

  R.C. 102.01(H) ‘Honorarium’ means any payment made in
  consideration for any speech given, article published, or attendance
  at any public or private conference, convention, meeting, social
  event, meal, or similar gathering. ‘Honorarium’ does not include
  ceremonial gifts or awards that have insignificant monetary value;
  unsolicited gifts of nominal value or trivial items of informational
  value; or earned income from any person, other than a legislative
  agent, for personal services that are customarily provided in
  connection with the practice of a bona fide business, if that business
  initially began before the public official or employee conducting
  that business was selected or appointed to the public official’s or
  employee’s office or position of employment.

Ohio Rev. Code Ann. § 102.01(H) (West Supp. 2005).

The Board has expressed the view that certain teaching activities are distinct
from the category of “any speech given” and therefore do not fall within the ban
on honorarium. Compensation for teaching a college or university course or a
continuing legal education class is not considered an honorarium. See Bd.
Comm’rs on Grievances & Discipline, Op. 94-12 (1994) (advising that a judge may
accept compensation for teaching a college or university course on topics related
to the law, the legal system, or the administration of justice); Bd. Comm’rs on
Grievances & Discipline, Op. 95-9 (1995) (advising that a judge may accept
compensation for teaching continuing legal education classes or courses). But
compensation for other speaking activities is considered prohibited honorarium.
See Bd. Comm’rs on Grievances & Discipline, Op. 95-9 (1995) (advising that a
judge may not accept compensation for presenting motivational speeches).

Op. 2006-3 5

Why did the Board distinguish certain teaching activities from “any speech
given”? Teaching involves more rigorous requirements than general speaking
activities. Teaching imparts knowledge and skill as part of a planned educational
process. In teaching college courses, academic goals are defined and academic
credit is offered. Students must earn credit to reach academic goals. Instructors
must be qualified. Instructors have duties beyond the classroom hour. As to
teaching a continuing legal education course, the Commission on Continuing
Legal Education of the Supreme Court of Ohio sets standards and monitors the
education offerings. The instructors must submit teaching materials for
approval. The instructors earn continuing legal education credit for teaching.
The participants earn continuing legal education credits to reach goals, such as
keeping their professional law licenses in good standing. The participant’s
educational credits are reported to and monitored by the Commission on
Continuing Legal Education of the Supreme Court of Ohio. See Bd. Comm’rs on
Grievances & Discipline, Op. 95-9 (1995) and 94-12 (1994).

Speaking activities are characteristically a singular or isolated event, not part of a
planned educational process. When giving a speech, a speaker’s duties are often
limited to the preparation and delivery of the speech. No academic credit is
offered and no credits are earned by students. See Bd. Comm’rs on Grievances &
Discipline, Op. 95-9 (1995).

Judges must abide by Ohio Ethics Law which broadly bans honorariums for
judges and other public officials. Thus, the Board is reluctant to distinguish the
proposed training course for county employees as a teaching activity not subject
to the honorarium ban. Teaching an inservice training for employees of county
departments of job and family services is important and educational, but it is not
a teaching activity with the same rigors and requirements as teaching a college or
university course, nor is it a teaching activity subject to the rules and
requirements of the Commission on Continuing Legal Education of the Supreme
Court of Ohio. For a judge, such activity falls more into the category of “any
speech given” for which compensation is not proper.

Judges must uphold the integrity and independence of the judiciary under
the Ohio Code of Judicial Conduct

Canon 1 of the Ohio Code of Judicial Conduct requires judges to uphold the
integrity and independence of the judiciary. Compensation to a judge by another
branch of government for providing training to the government employees is
inappropriate under Canon 1 of the Ohio Code of Judicial Conduct.

Under Canon 1, the independence and integrity is not upheld when a probate
judge receives compensation from a county department of job and family services
for teaching a training course to county employees who are at times involved in
matters before a probate juvenile court.

Op. 2006-3 6

Under Canon 2(D)(1) there is the further consideration that the source of the
compensation, ODJFS, might give the appearance of influencing the judge in his
or her judicial duties or otherwise give the appearance of impropriety because the
judge hears cases involving the employees of ODJFS.

Judges may not solicit or receive improper compensation under Ohio
Ethics Law.

R.C. 2921.43 is a provision of Ohio Ethics Law prohibiting public servants from
soliciting or receiving improper compensation. Judges and other public officials
are public servants for purposes of R.C. 2921.43. See Ohio Rev. Code Ann. §
2921.01(A), (B) (West Supp. 2005).

  §2921.43 Soliciting or receiving improper compensation

  (A) No public servant shall knowingly solicit or accept, and no
      person shall knowingly promise or give to a public servant,
      either of the following:

          (1) Any compensation, other than as allowed by divisions
              (G), (H), and (I) of section 102.03 of the Revised Code or
              other provisions of law, to perform the public servant’s
              official duties, to perform any other act or service in the
              public servant’s public capacity, for the general
              performance of the duties of the public servant’s public
              office or public employment, or as a supplement to the
              public servant’s public compensation;

          (2) Additional or greater fees or costs than are allowed by
              law to perform the public servant’s official duties.

Ohio Rev. Code Ann. § 2921.43(A)(1)-(2) (West Supp. 2005).

When a judge agrees to provide training for government employees in need of the
judge’s expertise, he or she is agreeing to perform an act or service in his or her
judicial capacity.

Compensation to a probate judge for teaching a six hour course on the topic of
adult protective services at a training program for employees of county
departments of job and family services is improper compensation to the judge for
performing an act or service in his or her judicial capacity under Ohio Ethics Law,
R.C. 2921.43(A)(1).

Op. 2006-3 7

Judges are prohibited by Ohio Ethics Law from having an unlawful interest
in a public contract

R.C. 2921.42 is a provision of Ohio Ethics Law that prohibits a judge from having
an unlawful interest in a public contract.

  § 2921.42. Having an unlawful interest in a public contract.

         (A) No public official shall knowingly do any of the
             following:

                (1) Authorize, or employ the authority or influence of
                    his office to secure authorization of any public
                    contract in which he, a member of his family, or
                    any of his business associates has an interest;

Ohio Rev. Code Ann. §2921.42(A)(1) (West 1997).

When a probate judge enters an agreement with ODJFS to provide training
courses to county employees for compensation, the probate judge has authorized
a public contract in which he or she has a financial interest.

Such financial interest is prohibited unless the judge could meet the
requirements of the safe harbor provision provided in R.C. 2921.42(C).

  R.C. 2921.42(C) This section does not apply to a public contract in
  which a public official, member of his family, or one of his business
  associates has an interest, when all of the following apply:

                (1) The subject of the public contract is necessary
                    supplies or services for the political subdivision or
                    governmental agency or instrumentality involved;

                (2) The supplies or services are unobtainable
                    elsewhere for the same or lower cost, or are being
                    furnished to the political subdivision or
                    governmental agency or instrumentality as part of
                    a continuing course of dealing established prior to
                    the public official’s becoming associated with the
                    political subdivision or governmental agency or
                    instrumentality involved;

                (3) The treatment accorded the political subdivision
                    or governmental agency or instrumentality is
                    either preferential to or the same as that accorded
                    other customers or clients in similar transactions;

Op. 2006-3 8

                (4) The entire transaction is conducted at arm’s
                    length, with full knowledge by the political
                    subdivision or      governmental       agency    or
                    instrumentality involved, of the interest of the
                    public official, member of his family, or business
                    associate, and the public official takes no part in
                    the deliberations or decision of the political
                    subdivision or      governmental       agency    or
                    instrumentality with respect to the public
                    contract.

Ohio Rev. Code Ann. §2921.42(C) (West 1997).

Whether the safe harbor provision could be met depends upon the facts and
circumstances. This determination is not necessary since the proposed conduct
is improper under other provisions of Ohio Ethics Law and the Ohio Code of
Judicial Conduct.

Conclusion

The Board advises as follows. A probate judge may teach a six hour course on the
topic of adult protective services at a training program for employees of county
departments of job and family services, provided the activity does not interfere
with the performance of judicial duties, but the probate judge should not accept
compensation. Compensation for such activity is prohibited under both the Ohio
Code of Judicial Conduct and Ohio Ethics Law. Compensation to the probate
judge from the state department of job and family services does not uphold the
integrity, independence, and impartiality of the judiciary as required under
Canons 1 and 2 of the Ohio Code of Judicial Conduct and would be an
honorarium, improper compensation, and an unlawful interest in a public
contract under Ohio Ethics Law. Prospective application of this opinion is
recommended.

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 102.02 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.