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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 a public 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 member of a public board is interested in seeking or being considered for employment by the public agency he serves as a board member.

III. Summary of the Law

The Ohio Ethics Law and related statutes prohibit a member of a board of from:

• Authorizing a contract for his own employment with a public agency while he is a member of the agency's board;
• Seeking or soliciting employment from the public agency while he is a member of the agency's board;
• Using his position as a board member, in any way, to create or secure an employment opportunity for himself; and
• Profiting from an employment position that was authorized by the board while he was a member;

The law does not prohibit a former board member from competing for an employment position with the public agency he formerly served in an open and fair employment process if it is clear that he did not use his position, while on the board, to secure the job, and that the best and most qualified candidate is selected for the job.

IV. Authorizing Employment

R.C. 2921.42(A)(1) prohibits an official from authorizing, or using his position to secure, a public contract for himself.[2] A "public contract" is defined to include employment.[3] Therefore, R.C. 2921.42(A)(1) prohibits a board member from authorizing, or using his position to secure authorization of, employment with the public agency he serves.[4] R.C. 2921.42(A)(1) prohibits the board member from voting on his own employment contract, recommending himself for employment the board, or using his position of authority in any manner as a board member to secure the contract.

V. Soliciting or Using Position to Secure a Contract for Employment

R.C. 102.03(E) prohibits an official who serves as a board or commission member from soliciting anything of value if the thing of value could have a substantial and improper influence upon him with respect to his duties. R.C. 102.03(D) prohibits an official who serves as a board member from using his position to secure anything of value if the thing of value could have a substantial and improper influence upon him with respect to his duties.

"Anything of value" is defined to include money, which would include payment for employment, and any promise of future employment.[5] Therefore, R.C. 102.03(E) prohibits a board member from soliciting employment from the agency he serves as a board member.[6] R.C. 102.03(D) prohibits a board member from using his public position to secure employment from the agency. The board member is prohibited from voting, discussing, deliberating, lobbying, or taking any other action to secure employment with the board while he is a member.

VI. Profiting from Public Contract

R.C. 2921.42(A)(3) prohibits an official from profiting from a public contract authorized by him or by a board of which he is a member at the time of authorization, unless the contract is competitively bid and awarded to the lowest and best bidder. "Public contract" includes employment, and employment contracts are not competitively bid. Therefore, a board member cannot accept any benefit, including compensation, from an employment contract authorized by him, or by the board of which he is a member, even if he does not participate in the authorization of the contract.

VII. Creating New Position

If a public agency is creating a new employment position, R.C. 102.03(D) prohibits any member of the board from participating in that matter if he intends to apply for the job. If a board member wishes to apply for a job that the board is considering creating, he should resign from the board as soon as possible, before any official action regarding the position is taken. [7] He is also prohibited from lobbying other board members about the position.

VIII. Example of Restrictions

If the public agency has an open employment position, the members of the governing board of the agency are prohibited from applying for the job. A board member is also prohibited from using his authority to persuade other board members, or employees of the public agency, to hire him.[8]

If a board member wants to apply for an open job with the board, he must resign from the board before he submits an application or takes any other action to secure the job or benefits related to holding the job. He must resign before he discusses the employment opportunity with any board members or board employees. He is prohibited from seeking the job while he is a board member, and then resigning to accept the employment.

For example, if a state board is hiring a new executive director, a member of the board is prohibited from applying for the job. The board member would also be prohibited from discussing the employment opportunity with the current Director and with other board members.

If the board member thinks he will apply for the position of executive director, he would be prohibited from acting to increase the salary or benefits for the position, or modifying the duties or authority of the position. If the board member wants to apply for the position, he must resign from his position on the board before he submits his application. In order for him to apply, it must be clear that he did not use his position as a board member, in any way, to solicit or secure the job.

In some situations, the board can consider employment of a former member who has not applied for a position with the board.[9] There is an exception in the revolving door law that permits such employment situations. For more guidance in that situation, please read the Commission's revolving door memorandum and contact the Commission.

IX. Other Considerations

Any board member official who is considering seeking employment with that board should ask legal counsel for board whether the board 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 him.

Most of the ethics laws discussed in this information sheet (R.C. 102.03(D) and (E)) 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. The maximum penalty is 18 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, 432315-2940; telephone (614) 466-7090, and on the Commission's Web site: www.ethics.ohio.gov.

Rev'd March 2005