OAG 1994-013.

• Case Date: March 28, 1994
• Court: Ohio

Ohio Attorney General Opinions 1994. OAG 1994-013. March 28, 1994OPINION NO. 1994-013The Honorable Jim SlagleMarion County Prosecuting Attorney133 1/2 E. Center StreetMarion, Ohio 43302 Dear Prosecutor Slagle: You have requested an opinion concerning the compatibility of the positions of township trustee and village administrator. You have stated that the township trustee represents the township on the board of fire district trustees that governs the joint fire district that encompasses the territory of the township and village.(fn1) Consequently, you wish to know whether a township trustee who represents his township on a board of fire district trustees may serve simultaneously as a village administrator for a village located within the joint fire district.

Compatibility Analysis

1979 Op. Att'y Gen. No. 79-111 provides the following test for determining the compatibility of two public positions:

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. The sixth and seventh questions of the analysis raise issues of local concern, and it is assumed, for purposes of this opinion, that there are no local departmental regulations, charter provisions, or ordinances that limit the holding of outside employment by the township trustee, member of the board of fire district trustees, or village administrator. There are no applicable state or federal regulations.

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 or officers in the classified service of the state, the several counties, cities, and city school districts thereof, and civil service townships from participating in partisan political activities, other than to vote or express their political views. A township trustee, as an elected officer, is an unclassified position. 1993 Op. Att'y Gen. No. 93-016 at 2-85; see R.C. 124.11(A)(1); R.C. 505.01. The position of village administrator is not subject to R.C. 124.57's prohibition since that section does not apply to officers or employees in the service of a village. 1993 Op. Att'y Gen. No. 93-048 at 2-234; see 1989 Op. Att'y Gen. No. 89-069 at 2-315; see also Ohio Const. art. XV, §10; R.C. 124.01. Similarly, since R.C. 124.57 does not expressly include a joint fire district among the political subdivisions whose classified employees and officers are prohibited from engaging in partisan political activity, the statute does not apply to the position of member of the board of fire district trustees of a joint fire district. Cf. Op. No. 89-069 at 2-315 ("R.C. 124.57 does not expressly mention officers or employees in the service of a village or local school district; thus, the statute does not apply to such officers or employees"). See generally R.C. 5705.01(A) (classifying a joint fire district as a "subdivision" for purposes of R.C. 5705); 1985 Op. Att'y Gen. No. 85-071 at 2-276 ("[i]t is clear that a joint fire district created pursuant to R.C. 505.371 constitutes a legal entity, separate and distinct both from the bodies which join in its creation and from the county or counties within which it is located"). The prohibition set forth in R.C. 124.57, therefore, does not prohibit a township trustee who represents his township on a board of fire district trustees from serving simultaneously as a village administrator.

Outside Employment

The second question of the analysis asks whether the empowering statutes of either position limit outside employment. No statute prohibits a township trustee or member of a board of fire district trustees from serving as a village administrator. Pursuant to R.C. 735.271, a village administrator is only prohibited from being "an elected official of the village at the time of his appointment or during his tenure in office." Insofar as neither a township trustee nor member of a board of fire district trustees is an elected official of the village, R.C. 735.271's prohibition does not apply. Accordingly, no statute expressly prohibits a village administrator from serving simultaneously as either a township trustee or member of a board of fire district trustees.

Subordination or Control

The third question of the analysis asks whether one position is subordinate to, or in any way a check upon, the other. As stated in Op. No. 93-048, a village administrator is appointed by the village mayor, and serves at the pleasure of the mayor and the village's legislative authority. Op. No. 93-048 at 2-234; see R.C. 735.271; see also R.C. 735.273 (a village administrator is under the general supervision and control of the village mayor). As an...