Coulson, 061819 OHAGO, AGO 2019-21

• Case Date: June 18, 2019
• Court: Ohio

The Honorable Charles E. Coulson AGO 2019-21 No. 2019-021 Ohio Attorney General Opinions Ohio Attorney General June 18, 2019          The Honorable Charles E. Coulson          Lake County Prosecuting Attorney          105 Main Street          P.O. Box 490          Painesville, Ohio 44077          SYLLABUS:          1. The areas of potential conflicts of interests between the position of an assistant prosecuting attorney and the positions of a magistrate or a temporary acting judge of a municipal court within the same county are so numerous, direct, and diverse as to render it impractical to fashion a comprehensive arrangement of limitations upon the duties and responsibilities of such positions so as to avoid significant danger of conflicts of interests. As such, the position of an assistant prosecuting attorney is incompatible with the position of a magistrate or a temporary assigned judge serving in a municipal court within the same county.          2. The areas of potential conflicts of interests between the position of a special assistant prosecuting attorney appointed by a judge of a common pleas court pursuant to R.C. 2941.63 and the positions of a magistrate or a temporary acting judge of a municipal court within the same county are so numerous, direct, and diverse as to render it impractical to fashion a comprehensive arrangement of limitations upon the duties and responsibilities of the positions so as to avoid significant danger of conflicts of interests. As such, the position of a special assistant prosecuting attorney appointed by a judge of the common pleas court pursuant to R.C. 2941.63 is incompatible with the position of a magistrate or a temporary assigned judge serving in a municipal court within the same county.          Dear Prosecuting Attorney Coulson:          By your letter of May 1, 2019, you solicit our formal opinion as to certain matters incident to your service as the Prosecuting Attorney of Lake County. Specifically you seek a determination as to the compatibility of the following positions:

1. A part-time assistant prosecuting attorney of a county prosecutor’s office who is also either a part-time magistrate or acting judge of a municipal court within the same county; and

2. A special prosecutor appointed by the court of common pleas to prosecute criminal or delinquent offenders and who is also either a part-time magistrate or acting judge of a municipal court within the same county.

         You indicate that “[t]here may be an opportunity for a part-time assistant prosecuting attorney or special prosecutor, who both handle limited criminal and delinquent matters, to serve a municipal court in Lake County as either a part-time magistrate or acting judge.”          You make reference in your letter to 1992 Op. Att’y Gen. No. 92-041, which indicates that:

An individual employed as an assistant county prosecuting attorney may also serve within the same county as a mayor’s court magistrate in the mayor’s court of a village, provided that the individual (1) as mayor’s court magistrate does not preside over hearings involving actions prosecuted or defended by the county prosecuting attorney who employs him as an assistant prosecuting attorney, and (2) is not delegated, as an assistant county prosecuting attorney, responsibility for the prosecution of actions under R.C. Chapter 2733, R.C. 733.73, or R.C. 117.27-.29, the handling of appeals from the mayor’s court to the county court or municipal court, the preparation or presentation of the county budget to the county budget commission, or the replacing of the county prosecuting attorney on the county budget commission.

1992 Op. Att’y Gen. No. 92-041, at 2-158 (syllabus). You write that “[d]ue to the differences between a mayor’s court and municipal court” you are “seeking an opinion that is specific to the situations outlined herein.” We note as well that 1990 Op. Att’y Gen. No. 90-005, indicates that “[a]n individual employed as an assistant prosecuting attorney may also serve as a part-time domestic relations referee in an adjoining county without having a conflict of interest, provided that the individual does not preside over hearings involving actions prosecuted or defended by the county prosecuting attorney who employs him as an assistant county prosecuting attorney.” 1990 Op. Att’y Gen. No. 90-005 (syllabus).          Set forth in 1979 Op. Att’y Gen. No. 79-111 are the seven questions related to the determination of whether two public positions are compatible. They are:

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

2. Do the empowering statutes of either position limit the outside employment [that is] 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 that is applicable?

1979 Op. Att’y Gen. No. 79-111, at 2-367 to 2-368; see also 1992 Op. Att’y Gen. No. 92-041, at 2-160. Before two public positions may be determined to be compatible, all seven questions must be answered in a manner which supports their compatibility.          Initially, we note that the sixth and seventh questions involve matters of local legislation and departmental regulations. We are aware of no applicable state or Federal departmental regulations which bear on the issues which you raise. It seems unlikely, and, for the purposes of this opinion, we assume that no such regulations exist, and that there are no local departmental regulations, charter provisions, or ordinances that prohibit...