Phillips, 121117 OHAGO, AGO 2017-43
| Case Date | December 11, 2017 |
| Court | Ohio |
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 employment in another public position or the holding of another public office?
3. Is one position 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 an impermissible conflict of interest between the two positions?
6. Are there local charter provisions, resolutions, or ordinances which are controlling?
7. Is there a federal, state, or local departmental regulation applicable?2003 Op. Att’y Gen. No. 2003-010, at 2-69 to 2-70. “In order for two positions to be found compatible, all seven questions must be resolved in favor of compatibility.” 1989 Op. Att’y Gen. No. 89-052, at 2-218. To answer these questions, we need to understand the primary statutory duties and functions this person will carry out in each position. Duties and Functions of a Commissioner of Jurors R.C. Chapter 2313 creates the office of commissioner of jurors and establishes the procedures through which the commissioners of jurors summon jurors and draw their names for service. R.C. 2313.01(A) authorizes the appointment of two persons by the judges of the general division of the court of common pleas to serve as commissioners of jurors. The appointment is made by the judge or a majority of the judges where there is more than one judge in the county. Id. A commissioner of jurors holds office at the pleasure of the judges of the court of common pleas in the county of his appointment, and serves as an officer of the court of common pleas of the county. Id. Compensation for a commissioner of jurors is fixed by the court of common pleas and paid out of the county treasury. R.C. 2313.02(A). A commissioner of jurors shall not be an attorney at law and shall not be of the same political party as the other commissioner of jurors. R.C. 2313.01(A). A commissioner of jurors may also serve as a court employee. Id. With the written consent of the court, a commissioner of jurors may appoint or remove as many deputy commissioners as needed to carry out the provisions in R.C. Chapter 2313. R.C. 2313.02(A). Additionally, a commissioner of jurors may authorize a deputy commissioner to perform any duty or class of duties that a commissioner may perform when the commissioner of jurors authorizes such duties in writing. R.C. 2313.02(B). A commissioner of jurors or any deputy commissioner may administer an oath or affirmation in relation to any matter governed by R.C. Chapter 2313. Id. R.C. 2313.01(B) authorizes a commissioner of jurors to “examine under oath any juror called for trial as to that person’s qualifications to serve as a juror.” A commissioner’s “duties include making annual and supplementary jury lists, selecting a sufficient number of electors from such lists to constitute the required number of prospective jurors, and notifying prospective jurors that they have been drawn for jury duty.” 2014 Op. Att’y Gen. No. 2014-022, at 2-197; see also R.C. 2313.06 -.10. The commissioner of jurors shall publish notice of the drawing of jurors in at least one newspaper of general circulation in the county, and serve written notice of the drawing upon the clerk of the common pleas court and at least one judge of the common pleas court. R.C. 2313.08(A). The commissioner of jurors shall keep records of all proceedings before him. See R.C. 2313.06; R.C. 2313.09; R.C. 2313.14(G). A commissioner of jurors is authorized to exempt from jury service those individuals entitled to exemption upon their request. See R.C. 2313.12; R.C. 2313.14-.15. Duties and Functions of a Member of a Board of Township Trustees A township trustee, as an elected township officer, R.C. 505.01, serves and is responsible to the township’s electorate. The powers, duties, and responsibilities of a member of a board of township trustees relate primarily to exercising executive and legislative powers on behalf of the township. 1994 Op. Att’y Gen. No. 94-013, at 2-60 (“[t]ownship trustees are statutorily vested with various powers and duties associated with the government of the township”). A board of township trustees is authorized to appoint a township administrator, R.C. 505.031; maintain an inventory of township supplies, R.C. 505.04; maintain a list of building nuisances, R.C. 505.06; accept and dispose of property, R.C. 505.10; exchange, transfer, and lease real property, R.C. 505.104; R.C. 505.11; provide for solid waste facilities, R.C. 505.12; purchase, construct, or acquire township parks, public library buildings, and other public areas, R.C. 505.26; and provide fire and police protection to the township’s residents, R.C. 505.37-.39; R.C. 505.43. “A board of township trustees also handles fiscal and budgetary matters on behalf of the township.” 2000 Op. Att’y Gen. No. 2000-025, at 2-168. Generally, a board of township trustees is required to adopt a tax budget for each fiscal year, R.C. 5705.28, and submit the tax budget to the county auditor, R.C. 5705.30, who in turn presents the tax budget to the county budget commission, R.C. 5705.31. As a taxing authority under R.C. 5705.01(C), the board of township trustees is authorized to levy taxes within the ten-mill limitation, see R.C. 5705.05-.06, and to submit tax levies in excess of the ten-mill limitation to the electors, see R.C. 5705.07; R.C. 5705.19-.191. Application of R.C. 124.57 The first question of the compatibility analysis concerns the application of R.C. 124.57, and asks whether a particular position is in the classified service for purposes of that statute. R.C. 124.57(A) provides, in part:
No officer or employee in the classified service of the state, the several counties, cities, and city school districts of the state, or the civil service townships of the state shall directly or indirectly, orally or by letter, solicit or receive, or be in any manner concerned in soliciting or receiving, any assessment, subscription, or contribution for any political party or for any candidate for public office; ... nor shall any officer or employee in the classified service of the state, the several counties, cities, and city school districts of the state, or the civil service townships of the state be an officer in any political organization or take part in politics other than to vote as the officer or employee pleases and to express freely political opinions.“R.C. 124.57 thus prohibits a classified employee from holding a partisan elective office or engaging in partisan political activities, but does not apply to non-partisan elective offices.” 1989 Op. Att’y Gen. No. 89-022, at 2-101. Therefore, we must determine whether the positions of member of a board of trustees of a township and a commissioner of jurors are in the classified civil service. A board of township trustees consists of three members, elected by general election for a four year term. R.C. 505.01. R.C. 124.11(A)(1) states that the unclassified service includes “all officers elected by popular vote.” Because a member of a board of township trustees is an elected official, this position is not within the classified service of the township. R.C. 124.11(A)(10) includes in the unclassified service “commissioners of courts of record, … and such officers and employees of courts of record[.]” “Commissioners of courts of record” are not specifically defined in R.C. Chapter 124. See R.C. 1.42 (when a term is not statutorily defined, we look to the common and ordinary meaning of a term). Black’s Law Dictionary 272 (6th ed. 1997) defines a...
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