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I. Introduction

The Ohio Ethics Law and related statutes are found in Ohio Revised Code (R.C.) Chapter 102. and Sections 2921.42 and 2921.43. These laws generally prohibit public officials and employees from misusing their official positions for their own personal benefit or the benefit of their family members or business associates.

The Ethics Law applies to all people who serve as officials and employees for public agencies in Ohio. "Public agencies" include state departments, boards, and commissions, counties, cities, villages, townships, school districts, public colleges and universities, public libraries, port authorities, and all other public entities.

The Ohio Ethics Commission was created to administer, interpret, and assist in the enforcement of the Ethics Law for all officials in the state, except members and employees of the General Assembly and judicial officers and employees [1]   In this information sheet, the word "official" includes any person who serves any public agency, except a state agency, whether elected, appointed, or employed.

II. Purpose of this Information Sheet

The Ethics Commission prepared this information sheet to explain how the law applies when a local public official wishes to sell goods or services to the local public agency she serves.

The Commission has prepared a separate information sheet (Information Sheet # 3) for officials and employees of state agencies.

III. Summary of the Law

The Ohio Ethics Law and related statutes prohibit an official from:

• Selling goods or services to the agency she serves unless she can meet one of two exceptions to the law; and
• Using her position to get a public contract or payments from the agency.

IV. Prohibition Against Having an Interest in a Public Contract

R.C. 2921.42(A)(4) prohibits an official from having an interest in the profits or benefits of a public contract entered into by or for the use of a public agency with which she is connected.

A public contract exists whenever a public agency buys or acquires goods or services, regardless of whether there is a written contract. [2] Examples of public contracts are:

• Purchases of goods like computers, fire trucks, and paper products [3] ;
• Purchases of services like insurance, consulting, and accounting [4] ;
• Any employment, whether full time, part time, temporary or permanent; and
• Grants (because the agency acquires services by virtue of the grant). [5]

R.C. 2921.42(A)(4) prohibits an official from selling goods or services to the public agency with which she is "connected."

A person is "connected" with the agency she serves. [6] For example, a person who works for the county is connected with all county agencies. An employee of the county engineer's office is prohibited from selling computers to the sheriff's office. A city council member is prohibited from selling uniforms to the police department.

V. Stockholding Exception

There is an exception when an official is a stockholder of a company. If an official owns less than five percent of the stock in a company, and files an affidavit about her stock ownership with her public agency, she will not have a prohibited interest in any contract between the agency and the company. However, the exception does not apply if the official has any additional connection with the company, such as employment. [7]

For example, if a city employee owns less than five percent of the stock in a car company, and she files an affidavit with the city disclosing her stockholding, she does not have a prohibited interest if the city buys a car from the company.

VI. Four-Part Exception

There is another exception. In order for the exception to apply, the public official must be able to show that she meets all four of the following requirements:

Requirement 1: The goods or services are necessary goods or services. [8] In other words, the agency can demonstrate that it needs the goods or services the official will provide.

Requirement 2: Either the goods or services are part of a continuing course of dealing or they are unobtainable elsewhere for the same or lower cost. [9] There are two ways the official can show that she meets this requirement.

First, the official can meet the requirement if she is supplying goods or services to the agency as part of a continuing course of dealing established before she was elected or employed. In other words, if the official had a contract to sell goods or services to the agency before she was hired, she can continue to perform that contract. [10] However, if there was simply a practice of purchases, or if there are any significant changes to the contract (including cost), the official cannot meet this exception. If the official believes that she can show that she meets this requirement, she should contact the legal advisor for the public agency, or the Ethics Commission, to independently assure that the requirement can be met.

Second, the official can meet the requirement if the agency cannot get the goods or services from any other source for the same or lower cost. However, the agency must use some objective price comparison and must provide adequate notice to other suppliers of the same goods or services, in a fair and impartial purchasing process. [11] If the official provided the lowest and best bid after a fair and open competitive bid, or offered the lowest price on the goods as determined by some other fair and objective process, the official may be able to demonstrate that she meets this requirement.

Requirement 3: The treatment that the official provides to the agency is the same as, or better than, the treatment that she provides to other customers or clients in similar transactions. [12] In other words, the official must treat the agency the same as, or better than, she treats the other customers or clients of her business.

Requirement 4: The transaction is conducted at arm's length, the agency has full knowledge of the official's interest in the sale of goods or services, and the official has taken no part in the deliberations or decision with respect to the transaction. [13] The official must first show that she did not use her unique access as an agency employee to secure the contract. Then the official must show that she has fully informed the agency that she is interested in the transaction. Finally, the official must show that she was not involved in any votes, discussions, or decisions about the contract.

VII. Using Public Position to Secure a Public Contract

The Ethics Law also prohibits the official from using the authority or influence of her public position, in any way, to get an agency contract, or payments for goods or services from the public agency to her or her business. [14] The official is prohibited from discussing her contract with other officials or employees of the same agency.

Similarly, R.C. 102.03(D), a protection against conflicts of interest, prohibits an official from using her public position to secure a thing of value for herself. [15] The money that an official would receive from the sale of goods or services to the agency would be a thing of value. The official is prohibited from using her position to get payments from the agency.

VIII. Occupying a Position of Profit in a Contract

An official who authorizes contracts, or is a member of any board or committee that authorizes contracts, including a governing board (such as a city council, school board, or board of trustees), is also subject to R.C. 2921.42(A)(3). This section prohibits an official from occupying a position of profit in a contract if the contract is authorized by the official, or by a body, committee, or board of which she sits, unless the contract is competitively bid and awarded to the lowest and best bidder.

A public contract has been authorized by an official, body, board, or commission where the contract could not have been awarded without the approval of the board or official, the position in which the official serves, or the public entity with which she serves. [16]

If a board for an agency will authorize or approve a contract, a member of the board would be prohibited from receiving any profit from the contract unless the contract is competitively bid and awarded to the lowest and best bidder. [17] This is true even if the board member does not participate in the board's approval or authorization of the contract. [18]

IX. Other Considerations

Any official who wishes to sell goods or services to her public agency should ask her supervisor, or legal counsel for the public agency, whether the public agency has any additional policies or rules regarding this matter. (A public agency cannot create a policy or rule that is less restrictive than the prohibitions described above. However, an agency may have a policy or rule that is more restrictive than the Ethics Law.)

X. Penalties

The Ethics Law and related statutes are criminal laws. If a person is convicted of violating an ethics law, that person may receive a jail sentence and/or have a fine levied against her.

Most of the ethics laws discussed in this information sheet (R.C. 2921.42(A)(4) and R.C. 102.03(D)) are first-degree misdemeanors, with a maximum penalty of six months in prison and/or a $1000 fine. One of the laws discussed (R.C. 2921.42(A)(1)) is a fourth-degree felony, with a maximum penalty of eighteen months in prison and/or a $5000 fine.

XI. Conclusion

Please contact the Ethics Commission if you have questions about this information sheet or the Ohio Ethics Laws. This information sheet is not an advisory opinion, and is not intended to provide advice on specific facts. Copies of the Commission's formal advisory opinions can be obtained from: Ohio Ethics Commission, 8 East Long Street, 10th Floor, Columbus Ohio, 43215-2940; telephone (614) 466-7090, and on the Commission's Web site: www.ethics.ohio.gov.

Rev’d March 2006