Can a newly appointed magistrate keep serving out a term as an elected city council member?

Currency note

The Board withdrew this opinion by Advisory Opinion 2022-09 on October 7, 2022; treat it as historical context, not current guidance. It interpreted the Ohio Code of Judicial Conduct as it stood after the March 1, 2009 amendments. Subsequent rule changes and the withdrawing opinion may have changed the analysis. Verify against the current Ohio Code of Judicial Conduct before relying on any specific rule or requirement mentioned here.

Plain-English summary

The Board addressed whether a newly appointed part-time domestic relations court magistrate could continue serving out a term as an elected city council member. It concluded the magistrate could not. The Board reasoned that Jud. Cond. R. 4.5 required a judge, and by application a full-time or part-time magistrate, to resign from judicial office upon becoming a candidate in a primary or general election for a nonjudicial elective office, subject only to a state constitutional convention exception that did not apply.

The Board treated it as a necessary corollary of Rule 4.5 that a magistrate may not continue to serve in a nonjudicial office to which he or she was elected before becoming a magistrate. It drew on Opinion 2004-3, which had reached the same result under former Canon 7(B)(4) (the substantively identical predecessor), advising that a person holding an elected nonjudicial office who is later appointed a magistrate must either decline the appointment or resign the elected office.

The Board added that Rules 1.2 and 1.3 reinforced the conclusion: simultaneously holding the magistrate position and the city council seat could compromise public confidence in the magistrate's independence, integrity, and impartiality, could create an appearance of impropriety, and could appear to lend the prestige of the office to advance personal interests. The Board noted that, unlike judges, magistrates are not subject to the constitutional and statutory bars on holding another office of profit or trust, but that statutory compatibility questions (for example, under R.C. 731.02 and 705.12) might exist and were within the Ohio Attorney General's authority, not the Board's.

Common questions

Q: Could a newly appointed magistrate finish out an elected city council term?

A: The opinion concluded no; under Jud. Cond. R. 4.5 and its corollary, the magistrate could not continue to serve in a nonjudicial elective office held before the appointment.

Q: What rule drove the result?

A: The opinion concluded the result followed from Jud. Cond. R. 4.5 (resignation on becoming a candidate for nonjudicial office), reinforced by Rules 1.2 and 1.3.

Q: Did the Board address whether a statute also barred holding both positions?

A: The opinion concluded that statutory compatibility questions were within the Ohio Attorney General's authority, not the Board's, and it identified R.C. 731.02 and 705.12 as potentially relevant without deciding them.

Background and rules framework

The opinion interpreted the Ohio Code of Judicial Conduct as amended effective March 1, 2009: Jud. Cond. R. 4.5 (resignation upon candidacy for nonjudicial elective office), R. 1.2 (public confidence and avoiding impropriety), and R. 1.3 (not abusing the prestige of office). It noted that Rule 4.5 is identical in substance to former Canon 7(B)(4).

Citations and references

Rules of Professional Conduct:

• Ohio Jud. Cond. R. 4.5 (candidacy for nonjudicial elective office)
• Ohio Jud. Cond. R. 1.2 (public confidence); R. 1.3 (prestige of office)

Statutes:

• Ohio Const. art. IV, § 6(B); R.C. 141.04(D), 1901.11(D), 1907.16(B) (judges holding other offices)
• R.C. 731.02, 705.12 (municipal legislative authority membership)

Other opinions cited:

• Ohio BPC Op. 2004-3 (2004): magistrate serving in a nonjudicial elected position under former Canon 7(B)(4)
• Ohio Atty. Gen. Op. 96-062 (1996): statutory compatibility for a part-time magistrate

See also

• Ohio BPC Op. 2009-001: Magistrate Outside Employment as an Independent Contractor

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op.-2009-7.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.supremecourt.ohio.gov

                                OFFICE OF SECRETARY




                             OPINION 2009-7
                           Issued August 14, 2009
                        Withdrawn by Adv. Op. 2022-09

SYLLABUS: It is improper under the Ohio Code of Judicial Conduct for a newly
appointed full-time or part-time domestic relations court magistrate to continue
serving out a term as an elected member of city council. Rule 4.5 requires a
magistrate to resign as magistrate upon becoming a candidate in a primary or
general election for a nonjudicial elective office. A corollary of Rule 4.5 is that a
magistrate may not continue to serve in a nonjudicial office that he or she was
elected to prior to becoming a magistrate. Rule 1.2 and Rule 1.3 buttress the view
that a magistrate may not continue to serve in a nonjudicial elective office. Rule
1.2 requires a magistrate to act in a manner that promotes public confidence in
the independence, integrity, and impartiality of the judiciary, and to avoid
impropriety and the appearance of impropriety. Rule 1.3 requires that a
magistrate not abuse the prestige of judicial office to advance personal or
economic interests. The simultaneous holding of a position as magistrate and an
elective position of city council member may compromise public confidence in
the magistrate’s independence, integrity, and impartiality; may create an
appearance of impropriety; and may appear to lend the prestige of being a
magistrate to advance personal interests. Further, there may be statutory
compatibility issues to consider, but those are beyond the scope of this advisory
opinion.

OPINION: This opinion addresses a question regarding a newly appointed part-
time magistrate continuing to hold an elected office as city council member.

   Is it proper for a newly appointed part-time domestic relations
   court magistrate to continue serving out a term as an elected
   member of city council?

Part-time magistrates like part-time judges are subject to Rule 4.5 of the Ohio
Code of Judicial Conduct. See Part III, Application, Ohio Code of Judicial
Conduct. Full-time magistrates and full-time judges are also subject to Rule 4.5.
See Part I, Application, Ohio Code of Judicial Conduct.
Op. 2009-7 2

Rule 4.5 of the Ohio Code of Judicial Conduct requires that “[u]pon becoming a
candidate in a primary or general election for a nonjudicial elective office, a judge
shall resign from judicial office.” Rule 4.5 provides one exception, not applicable
herein, that “[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.”

Pursuant to Rule 4.5, a magistrate must resign as magistrate, just as a judge must
resign as judge, if he or she becomes a candidate in a primary or general election
for a nonjudicial office.

A necessary corollary to the Rule 4.5 requirement that a magistrate resign as a
magistrate upon becoming a candidate in a primary or general election for a
nonjudicial elective office is that a magistrate may not continue to serve in a
nonjudicial office to which he or she was elected prior to becoming a magistrate.

In Opinion 2004-3 (2004), the Board addressed, among other issues, whether a
magistrate may simultaneously serve as a magistrate while serving in a
nonjudicial elected position. That opinion interpreted Canon 7(B)(4) of the
former Ohio Code of Judicial Conduct which was superseded by the Ohio Code of
Judicial Conduct, effective March 1, 2009. Rule 4.5 is identical in substance to
former Canon7(B)(4). See Comparison Section, Rule 4.5, Ohio Code of Judicial
Conduct.

In Op. 2004-3, the Board advised: “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 also
advised: “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 expressed the 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 or resign from the non-judicial elective
office and accept the appointment as magistrate.”

Like the Board’s view in Opinion 2004-3 that Canon7(B)(4) prohibits a
magistrate from simultaneously serving in a nonjudicial elective office, the
Board’s view is that Rule 4.5 prohibits a magistrate from continuing to serve in a
nonjudicial elective office.

Further, other rules in the Ohio Code of Judicial Conduct buttress the view that a
magistrate may not continue to serve in a nonjudicial elective office. Full-time
and part-time magistrates like full-time and part-time judges are subject to Rule
1.2 and Rule 1.3. See Parts I and III, Application, Ohio Code of Judicial Conduct.

Rule 1.2 requires that “[a] judge shall act at all times in a manner that promotes
public confidence in the independence, integrity, and impartiality of the
Op. 2009-7 3

judiciary, and shall avoid impropriety and the appearance of impropriety.” Rule
1.3 requires that “[a] judge shall not abuse the prestige of judicial office to
advance the personal or economic interests of the judge or others, or allow others
to do so.” The simultaneous holding of a position as magistrate and the elective
position of city council member may compromise public confidence in the
magistrate’s independence, integrity, and impartiality; may create an appearance
of impropriety; and may appear to lend the prestige of being a magistrate to
advance personal interests.

For judges, the legal issue of holding another elective office is long settled. A
judge may not continue to hold another elective office. The Ohio Constitution
and related statutes prohibit a judge 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 Supp. 2009) [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 2005) [municipal court judges]; Ohio Rev. Code Ann. § 1907.16(B) (West
2005) [county court judges].

But, a magistrate, unlike a judge, is 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 Op. 96-062 (1996) (n.1). [In OAG Op. 96-062,
the attorney general advised that there is statutory compatibility for a part-time
domestic relations magistrate to serve as a member of the county board of
election, but noted the consideration did not constitute an opinion on the
applicability of the Code of Judicial Conduct.]

In Op. 2004-3, the Board stated that the “[r]esolution 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.” That statement may be overbroad, for a magistrate is subject
to statutory compatibility issues. As examples, the Board notes two statutory
provisions that may be relevant to the holding of the positions of magistrate and
city council member.

R.C. 731.02 states that each member of the legislative authority of a municipal
corporation “shall not hold any other public office, except that of notary public or
member of the state militia, and shall not be interested in any contract with the
city, and no such member may hold employment with said city.” Ohio Rev. Code
Ann. § 731.02 (West Supp. 2009).

R.C. 705.12 states that members of the legislative authority of a municipal
corporation “shall not hold any other public office or employment, except that of
notary public or member of the state militia, or state or county central
committeeman of a political party, or state or county executive committeeman of
Op. 2009-7 4

a political party, or state or county officer of a political party, and shall not be
interested in the profits or emoluments of any contract, job, work, or service for
the municipal corporation.” Ohio Rev. Code Ann. § 705.12 (West 1994). [R.C.
705.12 is applicable to each plan of city government provided for in R.C. 705.41 to
705.86 (commission plan, city manager plan, federal plan). Ohio Rev. Code Ann.
§ 705.07 (West 1994).]

The Board acknowledges that advice as to statutory compatibility issues is under
the advisory authority of the Office of the Ohio Attorney General. See e.g., Ohio
Rev. Code Ann. §§ 109.12-109.14 (West 2002). Advice as to the application of the
Ohio Code of Judicial Conduct is under the advisory authority of the Board of
Commissioners on Grievances and Discipline. See Gov. Bar R. V(2)(C).

In conclusion, the Board advises as follows. It is improper under the Ohio Code
of Judicial Conduct for a newly appointed full-time or part-time domestic
relations court magistrate to continue serving out a term as an elected member of
city council. Rule 4.5 requires a magistrate to resign as magistrate upon
becoming a candidate in a primary or general election for a nonjudicial elective
office. A corollary of Rule 4.5 is that a magistrate may not continue to serve in a
nonjudicial office that he or she was elected to prior to becoming a magistrate.
Rule 1.2 and Rule 1.3 buttress the view that a magistrate may not continue to
serve in a nonjudicial elective office. Rule 1.2 requires a magistrate to act in a
manner that promotes public confidence in the independence, integrity, and
impartiality of the judiciary, and to avoid impropriety and the appearance of
impropriety. Rule 1.3 requires that a magistrate not abuse the prestige of judicial
office to advance personal or economic interests. The simultaneous holding of a
position as magistrate and an elective position of city council member may
compromise public confidence in the magistrate’s independence, integrity, and
impartiality; may create an appearance of impropriety; and may appear to lend
the prestige of being a magistrate to advance personal interests. Further, there
may be statutory compatibility issues to consider, but those are beyond the scope
of this advisory opinion.

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 Ohio
Rules of Professional Conduct, the Ohio Code of Judicial Conduct,
and the Attorney’s Oath of Office.