AGO 1993-016.

• Case Date: July 29, 1993
• Court: Ohio

Ohio Attorney General Opinions 1993. AGO 1993-016. July 29, 1993OPINION NO. 1993-016The Honorable Dennis Watkins Trumbull County Prosecuting Attorney 3rd Floor Administration Building 160 High Street N.W. Warren, Ohio 44481-1092Dear Prosecutor Watkins: You have asked for an opinion (1) whether the position of administrative assistant to the county engineer is compatible with the position of township trustee, and (2) whether the position of administrative assistant to the county engineer is compatible with the position of member of the legislative authority of a city. 1979 Op. Att'y Gen. No. 79-111 sets forth the following seven questions for determining whether two public positions are compatible:

1. Is either of the positions a classified employment within the terms of R.C. 124.57?

2. Do the empowering statutes of either position limit the outside employment permissible?

3. Is one office subordinate to, or in any way a check upon, the other?

4. Is it physically possible for one person to discharge the duties of both positions?

5. Is there a conflict of interest between the two positions?

6. Are there local charter provisions or ordinances which are controlling?

7. Is there a federal, state, or local departmental regulation applicable?

Op. No. 79-111 at 2-367 and 2-368. Questions six and seven concern the applicability of state and federal departmental regulations and local departmental regulations, charter provisions, and ordinances. There are no applicable state or federal departmental regulations. Further, whether there is an applicable local departmental regulation, charter provision, or ordinance is a matter of local concern; thus, for purposes of this opinion, it is assumed that there are no local departmental regulations, charter provisions, or ordinances that prohibit the simultaneous holding of the positions in your questions.

R.C. 124.57

The first question of the analysis asks whether either of the positions is a classified employment within the terms of R.C. 124.57, which prohibits employees and officers in the classified service from participating in partisan political activity. A township trustee and a member of the legislative authority of a city, as elected officials, hold unclassified civil service positions. See R.C. 124.11(A)(1); R.C. 505.01; R.C. 731.01. Because information provided indicates that the administrative assistant is employed by and directly responsible to the county engineer and holds a fiduciary relationship to the county engineer, the position of administrative assistant to the county engineer is also in the unclassified service. See R.C. 124.11(A)(9). Insofar as none of the positions with which you are concerned is a classified employment, the prohibition of R.C. 124.57 does not prohibit an administrative assistant to the county engineer from serving simultaneously as either a township trustee or a member of the legislative authority of a city.

Outside Employment

The second question of the analysis asks whether the empowering statutes of either position limit outside employment. No provision in the Revised Code limits the outside employment possible of a township trustee or an administrative assistant to a county engineer. R.C. 731.02, which sets forth the qualifications for members of the legislative authority of a city, however, provides, in pertinent part, that, "[e]ach member of the legislative authority ... shall not hold any other public office, except that of notary public or member of the state militia." It must, therefore, be determined whether the position of administrative assistant to the county engineer is a public office. In State ex rel. Landis v. Board of Comm'rs of Butler County, 95 Ohio St. 157, 159-60, 115 N.E. 919, 919-20 (1917), the Ohio Supreme Court set forth the following criteria for determining whether a public position constitutes a "public office":

The usual criteria in determining whether a position is a public office are durability of tenure, oath, bond, emoluments, the independency of the functions exercised by the appointee, and the character of the duties imposed upon him.... The chief and most-decisive characteristic of a public office is determined by the quality of the duties with which the appointee is invested, and by the fact that such duties are conferred upon the appointee by law. If official duties are prescribed by statute, and their performance involves the exercise of continuing, independent, political or governmental functions, then the position is a public office and not an employment.

....

...[I]t is manifest that the functional powers imposed must be those which constitute a part of the sovereignty of the state.

See also, e.g., State ex rel. Milburn v. Pethtel, 153 Ohio St. 1, 90 N.E.2d 686 (1950). In light of the above criteria and the information provided in your letter of request, it appears that the administrative assistant position in question is not a public office. The position of administrative assistant to the county engineer is not specifically provided for in the Revised Code; rather, such assistants are appointed and employed pursuant to R.C. 325.17, which authorizes the county engineer to "appoint and employ the necessary deputies, assistants, clerks, bookkeepers, or other employees." The administrative assistant is not required by statute to take an oath or post a bond. Neither the duties nor the tenure of the administrative assistant position is prescribed by statute. Moreover, the duties assigned to the administrative assistant by the county engineer do not involve the exercise of sovereign power. As stated in your request letter, the primary duties of the administrative assistant include labor relations and human resource development, equipment purchasing, administration of a minority hiring program, administration of the department's facility maintenance program, and preparation of specifications for the department's maintenance material program. Thus, because an...