Can a court hire someone who also works for a nonprofit treatment center under contract with the court, and can court staff fundraise for that nonprofit?

Plain-English summary

A common pleas court operating a certified specialized drug court docket contracted with the county's largest nonprofit drug treatment center to provide services. The court wanted to hire a drug court coordinator who would split duties between the court and the treatment center, with one duty being to help fundraise so the center could become self-sufficient, and it wanted other court employees to assist in that fundraising. The Board answered two questions, one under the Ohio Ethics Law and one under the Code of Judicial Conduct.

On the hiring question, the Board explained that judges and court employees are "public officials" subject to the Ohio Ethics Law (R.C. 102.01, 2921.01). R.C. 2921.42(A)(4) prohibits a public official from having an interest in the profits or benefits of a public contract entered into by the official's agency, and the Ohio Ethics Commission has treated an arrangement where a public official is simultaneously employed by a corporation under contract with the official's agency as the receipt of an improper financial benefit. So, unless the statutory exception in R.C. 2921.42(C) is met (the four prongs include that the services are unobtainable elsewhere for the same or lower cost and furnished as part of a continuing course of dealing, with the burden on the official to prove all four), a court's drug court coordinator and current court employees are prohibited from simultaneous employment with a treatment center under contract with the court. Even if the exception applied, R.C. 102.03(D) and 2921.42(A)(1) bar the official from participating in securing authorization of the contract.

On the judicial-conduct dimension, the Board noted that although the Code does not directly govern court staff, the court should consider how a staff member's dual employment may affect the judge's independence, integrity, and impartiality and raise disqualification issues (Jud.Cond.R. 1.2); a treatment-center employee who also has a role in a case as a court employee creates an appearance of impropriety necessitating disqualification. On fundraising, the Board held that a judge may not directly solicit contributions for an organization (Jud.Cond.R. 3.7(A)(2)) and must require court staff to act consistently with the judge's own obligations (Jud.Cond.R. 2.12), so the judge may not permit court employees to solicit funds for the treatment center; the treatment center should conduct its own solicitation without court employees. The Board observed that persons with business before the court might feel compelled to contribute if solicited by court staff, undermining the court's independence and the prestige-of-office limit in Jud.Cond.R. 1.3.

In practice

The opinion holds that, under the Ohio Ethics Law and the Ohio Code of Judicial Conduct as they stood at the time, a court operating a specialized docket may not hire a person who is simultaneously employed by a treatment center under contract with the court unless the four-prong exception in R.C. 2921.42(C) is satisfied. Per the opinion, even where dual employment is otherwise permitted, the court should weigh the effect on the judge's independence and impartiality and the resulting appearance of impropriety that may require disqualification (Jud.Cond.R. 1.2). The opinion concludes that a judge may not solicit funds for the treatment center and may not permit court employees to do so (Jud.Cond.R. 3.7, 2.12); it states the treatment center should conduct its own solicitation activities without the assistance of court employees.

Common questions

Q: Can a court hire an employee of a nonprofit that contracts with the court?

A: The opinion concluded that, absent the statutory exception in R.C. 2921.42(C), a court may not hire a person simultaneously employed by a treatment center under contract with the court, because that dual employment is an improper financial benefit from a public contract under R.C. 2921.42(A)(4).

Q: What is the statutory exception that could allow the dual employment?

A: The opinion describes the four-prong exception in R.C. 2921.42(C): the contract provides necessary services to the subdivision; the services are unobtainable elsewhere for the same or lower cost and furnished as part of a continuing course of dealing; the public agency's treatment is the same as other customers; and the transaction is at arm's length with full agency knowledge. The official bears the burden of proving all four.

Q: Can court employees help fundraise for the treatment center?

A: The opinion concluded no; a judge may not solicit contributions for an organization (Jud.Cond.R. 3.7(A)(2)) and must require court staff to act consistently with the judge's obligations (Jud.Cond.R. 2.12), so court employees may not solicit funds for the center, which should conduct its own solicitation.

Q: How does the dual employment affect the judge?

A: The opinion concluded that a treatment-center employee who simultaneously has a role in a case as a court employee creates an appearance of impropriety that necessitates the judge's disqualification, and the court should consider the effect on the judge's independence and impartiality under Jud.Cond.R. 1.2.

Background and rules framework

The opinion applies the Ohio Ethics Law, principally R.C. 2921.42(A)(4) (interest in a public contract), its exception in R.C. 2921.42(C), and R.C. 102.03(D)/2921.42(A)(1) (participating in securing a contract). On the judicial side it interprets Ohio Jud.Cond.R. 1.2 (promoting confidence in the independence, integrity, and impartiality of the judiciary; Model Code of Judicial Conduct Canon 1), 1.3 (avoiding abuse of the prestige of judicial office), 2.12 (responsibility for court staff; Canon 2), and 3.7 (extrajudicial activities and solicitation of funds; Canon 3).

Citations and references

Rules of Judicial Conduct:

• Ohio Jud.Cond.R. 1.2 (confidence in the judiciary's independence and impartiality) (Model Code of Judicial Conduct Canon 1)
• Ohio Jud.Cond.R. 1.3 (avoiding abuse of the prestige of judicial office)
• Ohio Jud.Cond.R. 2.12 (responsibility for court staff and officials), incl. cmt. [1]
• Ohio Jud.Cond.R. 3.7 (extrajudicial activities; solicitation of funds), incl. 3.7(A)(2)

Statutes:

• R.C. 2921.42 (interest in a public contract), incl. 2921.42(A)(4), (A)(1), (C), (G)
• R.C. 102.03(D) (use of public office for personal benefit)
• R.C. 102.01, 2921.01 (definitions of public official)

Other opinions cited:

• Ohio Ethics Commission Adv. Ops. 81-005, 92-013, 2016-1: interest in and profit from public contracts
• Ohio BPC Adv. Op. 1991-11: judge on a nonprofit board that provides services to the court
• Ohio BPC Adv. Op. 2006-7: municipal judge on the board of a contracting nonprofit
• Ohio BPC Adv. Op. 2004-13: using judicial office and employees to solicit donations
• ABA Formal Op. 08-452: judicial support of funding for organizations with court business

See also

• Ohio BPC Op. 2004-013: Judge Soliciting Donations for a Mental Health Court
• Ohio BPC Op. 2004-006: Judge, Court Arts Committee, and Artwork Donation
• Ohio BPC Op. 2004-005: Judge Declining a Firearms Donation for Court Security
• Ohio BPC Op. 1989-003: Judge on a College Board of Trustees

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/08/Adv.-Op.-2017-6-Final.pdf

Original opinion text

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

OPINION 2017-06
Issued August 4, 2017

           Specialized Docket Courts and Nonprofit Organizations

SYLLABUS: Under Ohio Ethics Law, a court may not employ a person who is
simultaneously employed by a nonprofit drug treatment center that has contracted with
the court to provide services for its specialized drug court docket. Unless a statutory
exception applies, this type of dual employment arrangement constitutes the receipt by a
public official of an improper pecuniary or financial benefit from a third party that has a
contract with his or her court.

Under the Code of Judicial Conduct, the dual employment of a court employee with the
treatment center may impact the independence, integrity and impartiality of the judge
and create an appearance of impropriety that necessitates the disqualification of the
judge. In addition, a judge may neither solicit funds on behalf of a nonprofit drug
treatment center, nor allow employees of the court to engage in the solicitation of funds
for the treatment center.

This nonbinding advisory opinion is issued by the Ohio Board of Professional Conduct
in response to a prospective or hypothetical question regarding the application of
ethics rules applicable to Ohio judges and lawyers. The Ohio Board of Professional
Conduct is solely responsible for the content of this advisory opinion, and the advice
contained in this opinion does not reflect and should not be construed as reflecting the
opinion of the Supreme Court of Ohio. Questions regarding this advisory opinion
should be directed to the staff of the Ohio Board of Professional Conduct.
 65 SOUTH FRONT STREET, 5TH FLOOR, COLUMBUS, OH 43215-3431
Telephone: 614.387.9370 Fax: 614.387.9379
www.bpc.ohio.gov

DAVID L. DINGWELL RICHARD A. DOVE
CHAIR DIRECTOR
SANFORD E. WATSON D. ALLAN ASBURY
VICE- CHAIR SENIOR COUNSEL
HEIDI WAGNER DORN
COUNSEL

                                   OPINION 2017-06
                                 Issued August 4, 2017


              Specialized Docket Courts and Nonprofit Organizations

SYLLABUS: Under Ohio Ethics Law, a court may not employ a person who is
simultaneously employed by a nonprofit drug treatment center that has contracted with
the court to provide services for its specialized drug court docket. Unless a statutory
exception applies, this type of dual employment arrangement constitutes the receipt by a
public official of an improper pecuniary or financial benefit from a third party that has a
contract with his or her court.

Under the Code of Judicial Conduct, the dual employment of a court employee with the
treatment center may impact the independence, integrity and impartiality of the judge
and create an appearance of impropriety that necessitates the disqualification of the
judge. In addition, a judge may neither solicit funds on behalf of a nonprofit drug
treatment center, nor allow employees of the court to engage in the solicitation of funds
for the treatment center.

QUESTIONS PRESENTED: 1) Whether a common pleas court may employ an
employee of a nonprofit drug treatment center, currently under contract with the court,
as a full-time or part-time court employee to serve as the coordinator of the court’s
specialized drug court docket.
Op. 2017-6 2

2) Whether the court’s drug court coordinator and other employees of the court may
engage in fundraising activities on behalf of the nonprofit drug treatment center.

APPLICABLE RULES AND LAW: Jud.Cond.R. 1.2, 1.3, 2.12, 3.7; R.C. §§102.01, 102.03,
2921.01, 2921.42, and 2921.43.

OPINION: In the opinion request, a common pleas court operates a specialized drug
court docket that is certified pursuant to Sup.R. 36.20. The drug court is operated, in part,
through a contract with the county’s largest local drug treatment center. The treatment
agency is a nonprofit §501(C)(3) agency. All programming, counseling, and group
meetings in the drug court are operated out of the court’s adult probation department.
Currently, employees of the treatment agency, the court, and employees who work for
both the court and the agency, operate and coordinate the various programs in support
of the specialized drug court.

   The common pleas court seeks to hire a new coordinator on a full- or part-time

basis to operate the drug court. The coordinator will work with court employees and the
treatment center to provide services necessary to carry out the functions of the drug court.
The coordinator may split his or her duties as an employee of the treatment center and
the court. One of the primary duties of the coordinator will be to assist in fundraising for
the operation of the treatment center so that the center can become self-sufficient and not
dependent upon government funding. In addition, the court desires to enlist other
employees of the court to assist in fundraising activities for the treatment center.

Question 1

Application of the Ohio Ethics Law to Court Employees

   The Ohio Ethics Law is set forth in R.C. §§ 102 et.seq., 2921.42 and 2921.43. The

Board of Professional Conduct is authorized by statute under the Ohio Ethics Law to
render advisory opinions for judicial officers and employees Ohio courts. R.C. §§
102.01(F)(2), 102.08. O.E.C. Adv. Op. 81-008 (1981).
Op. 2017-6 3

   Judges and court employees are considered “public officials” subject to the Ohio

Ethics Law. R.C. §§102.01 (B), (C); 2921.01 (A), (B). The term "public official" is defined
as any elected or appointed officer, employee, or agent of any political subdivision of the
state. R.C. §2921.01(A). Consequently, the court’s proposed drug court coordinator and
other court employees would be or are public officials subject to the Ohio Ethics Law.

Profiting from a Public Contract

   In order to prohibit those dealings in which there is a risk that private

considerations may detract from serving public interests, the Ohio Ethics law prohibits a
public official from having any definite and direct financial interest in the public contracts
of his or her agency:

          No public official shall knowingly do any of the following: Have
          an interest in the profits or benefits of a public contract entered
          into by or for the use of the * * * agency * * * with which the public
          official is connected.

R.C. §2921.42(A)(4), O.E.C. 2016. See Committee Cmt., Am. H.B. 511, 109th Ohio General
Assembly.

   A “public contract’” is defined as a “* * * contract for the purchase or acquisition,

of property or services by or for the use” of a public agency. R.C. §2921.42(G). An
“interest” in a public contract may be deemed either pecuniary or fiduciary; however,
“profit” has been interpreted by the Ohio Ethics Commission to mean a pecuniary or
financial gain or benefit. O.E.C. Adv. Op. 92-013. See also O.E.C. Adv. Op. 81-005 (the
officers of a nonprofit corporation have an interest in the contracts of the corporation).

   An arrangement where a public official is simultaneously employed by a for-profit

or nonprofit corporation that is under contract with that public official’s public agency
implicates R.C. §2921.42(A)(4). O.E.C. Adv. Op. 2016-1. Such an arrangement constitutes
the receipt of an improper pecuniary or financial benefit by the public official in a contract
with a third party and the official’s public agency. O.E.C. Adv. Op. 2016-1. See also Adv.
Op. 91-11 (municipal court judge is prohibited by R.C. §2921.42(A)(4) from serving on the
Op. 2017-6 4

board of a nonprofit corporation that has a contract with the court.0 Consequently, unless
the statutory exception discussed below applies, a court’s drug court coordinator and
current court employees are prohibited from simultaneously engaging in employment
with a drug treatment center under a contract with the court. R.C. §2921.42(A).

Statutory Exception to R.C. §2921.42(A)(4)

   A statutory exception exists to the prohibition in R.C. §2921.42(A) and permits the

dual employment of court employees if each of four requirements is met: 1) the public
contract provides necessary supplies or services for the political subdivision; 2) the
supplies or services are unobtainable elsewhere for the same or lower cost, are furnished
as part of a continuing course of dealing prior to the hiring of the public official; 3) the
treatment accorded the public agency is preferential to, or the same as other customers;
and 4) the transaction is conducted at arm’s length, with full knowledge by the agency of
the interest of the public official in the services provider. R.C. §2921.42(C).

   In order for the exception to apply, the public official who simultaneously is

employed by a corporation and the court has the burden to demonstrate that the four
prongs of the exception are satisfied. O.E.C. 2016-1. The advisory opinion request does
not demonstrate facts that the exception would apply in this instance.

   However, even if the exception in R.C. §2921.42(C) were to apply, the Board

advises that any public official employed by a for-profit or nonprofit corporation that
contracts with his or her public agency is prohibited from participating in matters, or
authorizing or using the authority or influence of his or her position, to secure
authorization of the public contract with the corporation. R.C. §§102.03(D), 2921.42(A)(1).

Code of Judicial Conduct Considerations

   Notwithstanding the application of the Ohio Ethics Law, the Board has previously

considered the intersection of courts and nonprofit organizations that contractually
provide services to courts, including specialized dockets. Prior opinions reviewed only
the conduct of judges serving as directors or board members, but similar concerns may
Op. 2017-6 5

exist when court staff are employed by nonprofit organizations under contract with a
court.

      In Adv. Op. 2006-7, the Board opined that the former Code prohibited a municipal

judge from serving on the board of trustees of a nonprofit corporation that was under
contract with the court to provide mental health and chemical dependency treatment
services for the court’s specialized docket. Citing former Canon 1 (a judge shall uphold
the independence and integrity of the judiciary)1, the Board reasoned that “the integrity
and independence of the judiciary was 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.” Id. In Adv. Op. 1991-11, the Board
considered a judge’s participation on a board that provided services to the court to assist
it in its community reentry detention program. The court’s involvement with the
community reentry program required the judge to decide whether the defendant would
be incarcerated or permitted to participate in the reentry program. The Board concluded
under former Canon 5(B)(1) (service as an officer, director, trustee of an organization)2
that the judge was prohibited from serving as a member of the nonprofit because the
organization frequently would be engaged in proceedings before the judge.

      Although the Code does not directly apply to court staff, the court should carefully

consider how the dual employment of the judge’s staff with the drug treatment center
may similarly impact the judge’s independence, integrity, and impartiality or raise
possible disqualification issues. See Jud.Cond.R. 1.2. For example, drug treatment center
employees may frequently appear before the court in order to fulfill contractual duties
related to the specialized docket. The appearance in a case by a treatment center staff
member, who simultaneously participates or has a role in the case as a court employee,
creates an appearance of impropriety that necessitates the disqualification of the judge.

1 Current Canon 1 and Jud. Cond. R. 1.2.
2 Current Jud. Cond. R. 3.7(A)(7).
Op. 2017-6 6

Question 2

Fundraising prohibitions

   Judges are prohibited from directly soliciting contributions on behalf of an

“organization or entity,” and by extension, cannot directly or indirectly permit staff to
assist in fundraising activities on behalf of the judge or the court. Jud.Cond.R. 3.7(A)(2).
A judge is directed by Jud.Cond.R. 2.12 to “require court staff, court officials, and others
subject to the judge’s direction and control to act in a manner consistent with the judge’s
obligations under [the] code.” Jud.Cond.R. 2.12. Consequently, a judge may not require
or permit court personnel to engage in any conduct, including soliciting funds for a third
party, when such conduct would violate the code if undertaken by the judge. See
Jud.Cond.R. 2.12, cmt [1].

   Other rules of the Code of Judicial Conduct also are implicated if court staff engage

in prohibited solicitation of funds for the treatment center. For example, a judge is
required to act at all times in a manner that promotes the public confidence in the
independence, impartiality, and integrity of the judiciary, and from engaging in conduct
that creates the appearance of impropriety. Jud.Cond.R. 1.2. Directing or permitting
employees to assist in solicitation efforts for an organization that provides core services
to a specialized docket court by, gives the appearance that the court, through its
employees, is improperly soliciting funds on behalf of the organization. This conduct,
when performed by court employees, whether during or after regular work hours,
undermines the independence and integrity of the court. Lastly, the solicitation of funds
by the court’s employees also may implicate the Code if the prestige of judicial office is
used to advance the economic interests of third parties. Jud.Cond.R. 1.3. See Adv. Op.
2004-13 (using judicial office and employees to solicit donations improper because it
interferes with integrity and independence of the court and public confidence in the
judiciary); ABA Formal Op. 08-0452 (judicial support or endorsement of funding for
organizations with business with the court may create the appearance of impropriety and
raise the potential for disqualification.)

   Although the goal of assisting a nonprofit treatment center in becoming financially

self-sufficient is laudable and will ultimately assist the court in carrying out the functions
Op. 2017-6 7

of its specialized drug court docket, the court by and through its employees cannot
engage in solicitation on behalf of the organization. Solicitation by employees on behalf
of the treatment center, coupled with the possible dual employment of court employees
discussed earlier, may give the impression that the nonprofit treatment center and the
court are indistinct, thereby undermining the independence of the court and creating the
appearance of impropriety. In addition, persons or entities with business before the court
may feel compelled to contribute to the treatment center, if an employee of the court
solicits contributions from the local community or lawyers practicing before the court.

   In order to ensure proper separation between the court and the nonprofit

treatment center, avoid the appearance of impropriety, and ensure compliance with the
Code of Judicial Conduct, the treatment center should conduct its own solicitation
activities without the assistance of court employees. In the event the proposed drug court
coordinator is simultaneously employed by the court and the treatment center under the
exception available in R.C. §2921.42(C), the Board advises that the coordinator should not
be involved in solicitation activities for the treatment center in either employment
capacity.

CONCLUSION: Under R.C. §2921.42(A), a court operating a specialized docket may
not hire persons who are employed by a drug treatment center under contract with the
court unless the exception in R.C. §2921.42(C) applies. Furthermore, court employees
simultaneously employed with the drug treatment center may impact the independence,
integrity, and impartiality of the judge and create an appearance of impropriety that
necessitates the disqualification of the judge. Jud.Cond.R. 1.2. Additionally, a judge is
prohibited from engaging in the solicitation of funds for organizations and entities and
cannot permit or require employees under his or her direction or control from engaging
in the same prohibited conduct. Jud.Cond.R. 3.7, and 2.12. The solicitation of funds by
court employees interferes with the independence and integrity of the court, creates the
appearance of impropriety, and may improperly advance the economic interests of
private entities.