Votel, 020722 OHAGO, AGO 2022-003

• Case Date: February 07, 2022
• Court: Ohio

The Honorable Martin P. Votel AGO 2022-003 Opinion No. 2022-003 Ohio Attorney General Opinion Ohio Attorney General February 7, 2022          The Honorable Martin P. Votel          Preble County Prosecuting Attorney          101 E. Main Street, Courthouse, First Floor          Eaton, Ohio 45320          SYLLABUS

1. A person may serve simultaneously as the Preble County clerk of the court of common pleas and as the clerk of the Eaton Municipal Court, unless local officials determine it is physically impossible for the same person to perform the duties of both offices.

2. The clerk of the Eaton Municipal Court may not be hired as an independent contractor, and is a public employee as defined in R.C. 145.01.

3. There is no statutory limit for the compensation of the clerk of the Eaton Municipal Court.

4. Preble County and the City of Eaton contribute to the compensation of the clerk of the Eaton Municipal Court as set forth in R.C. 1901.31(C)(3) and R.C. 1901.11, which generally provide that the city pays three-fifths of the clerk’s compensation and the county pays two-fifths.

5. When the person serving as the clerk of the Preble County Court of Common Pleas is appointed to serve as the clerk of the Eaton Municipal Court, the Preble County Board of County Commissioners may not veto the appointment.

         Dear Prosecutor Votel:          You have requested an opinion asking certain questions related to whether the Preble County clerk of the court of common pleas may simultaneously serve as the clerk of the Eaton Municipal Court. I have framed your questions as follows:

1. May a person simultaneously serve as the Preble County common pleas clerk and as the Eaton municipal court clerk? In other words, are the positions compatible?

2. If the positions are compatible, may the Eaton municipal court clerk be hired as an independent contractor, or must the employment be through a formal public employment arrangement with PERS contributions?

3. If the positions are compatible, is there a limit to the amount of compensation paid to the Eaton municipal court clerk?

4. If the positions are compatible, is there any requirement regarding how the compensation of the clerk positions will be divided between Preble County and the City of Eaton?

5. When the person serving as the clerk of the Preble County Court of Common Pleas is appointed to serve as the clerk of the Eaton Municipal Court, may the Preble County Board of County Commissioners veto the appointment?

         I conclude that the two positions are compatible, provided that the local parties determine that it is physically possible for the same person to perform both jobs. I answer your remaining questions below.          I          As background, the Preble County clerk of the court of common pleas is an elected position that serves as the clerk for the Preble County Court of Common Pleas and the 12^th District Court of Appeals. R.C. 2303.01 and 2303.03. The duties of the clerk generally include maintaining the books and records of the court and its cases, accepting case filings, collecting fees, and administering oaths. See R.C. Chapter 2303. The clerk also has duties relating to registration of motor vehicle titles. See R.C. Chapter 4505. The Preble County common pleas clerk is sometimes informally called the county clerk of courts.          The Eaton Municipal Court is created pursuant to R.C. 1901.01. It is based in the City of Eaton, but has jurisdiction throughout all of Preble County. R.C. 1901.02(B). Despite having jurisdiction throughout Preble County, it is not a county-operated municipal court. R.C. 1901.03(F).          The Eaton municipal court clerk is created pursuant to R.C. 1901.31. Because the population of the territory of the court is less than 100,000, the clerk is appointed by the judge of the Eaton Municipal Court. R.C. 1901.31(A)(2)(a). The duties of the clerk are similar to those of the common pleas clerk, and include maintaining the records and docket of the court, collecting fees, and taking oaths and affidavits. R.C. 1901.31(E).          II          I first address whether the positions of the Preble County common pleas clerk and the Eaton municipal court clerk are compatible.          An issue of compatibility arises whenever one person wishes to hold simultaneously two or more positions of public service. The following seven questions are used to determine if two positions are compatible:

1. Is either position in the classified service for purposes of R.C. 124.57?

2. Does a constitutional provision or statute prohibit a person from serving in both positions at the same time?

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

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 that are controlling?

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

2021 Op. Att’y Gen. No. 2021-005, Slip Op. at 2; 2-19 to 2-20; 1979 Op. Att’y Gen. No. 79-111, at 2-367 to 2-368. All seven questions must be resolved in favor of compatibility for the positions to be compatible. 2021 Op. Att’y Gen. No. 2021-005, Slip Op. at 2; 2-19 to 2-20; 2013 Op. Att’y Gen. No. 2013-008, at 2-78.          The portions of questions six and seven that relate to local provisions and regulations are for local officials to answer. 2019 Op. Att’y Gen. No. 2019-020, Slip Op. at 5-6; 2-151. For the purposes of this opinion, I assume that no local...