|
Syllabus by the Ohio Ethics Commission:
A member of the Cuyahoga County Soldiers and Sailors
Monument Commission is not a person who has been appointed to an office
of a commission of the state or the county for purposes of Section
102.04 (A) or (B) of the Revised Code, and therefore, is not subject
to the prohibitions contained therein.
* * * * * *
Your request for an advisory opinion asks whether a lawyer
who is a member and President of the Cuyahoga County Soldiers and Sailors
Monument Commission is in violation of Section 102.04 of the Revised Code
when he represents clients before state and county administrative boards.
You state, by way of history, that the duties, power
and obligations of the Cuyahoga County Soldiers and Sailors Monument Commission
are set forth in 91 Ohio Laws 741 (1894) and 95 Ohio Laws 799 (1902).
You state that such laws are not codified, and Chapter 345 of the Revised
Code has no application to the Monument Commission. You further relate
that you were appointed to the Commission in April of 1964 and since have
been elected President.
Divisions (A) and (B) of Section 102.04 of the Revised
Code place prohibitions on, among others, "persons . . . appointed to
an office of" a governmental entity. In Division (A) the state is the
pertinent entity; while Division (B) refers to a county, township, municipal
corporation or any other governmental entity.
The Ohio Ethics Commission in Advisory Opinion No. 74-007,
listed several tests to determine whether a person has been "appointed
to an office of the state": (1) was he appointed; (2) does he have a title;
(3) does he exercise functions of government concerning the public; and,
(4) is he not subject to a contract of employment." In Advisory opinion
No. 75-004 the Ohio Ethics Commission added a further test, the exercise
of sovereign power.' Sovereign power is "a concept meant to imply the
exercise of a duty entrusted to one by virtue of statute or some public
authority. Those duties are not merely clerical but involve some discretionary,
decision-making qualities." In that Advisory Opinion the Ohio Ethics Commission
determined that the duties and responsibilities exercised had to be greater
than finding facts, assisting in the formulation of plans and the
making of recommendations.
With these tests in mind, it is important to examine
the legislation which created the Cuyahoga County Soldiers and Sailors
Monument Commission. As stated in your letter of request, the act of creating
your Commission is not codified. The Act as reported in 91 Ohio Laws 741
(1894) is:
"Sec. I. Be it enacted by the General Assembly of
the State of Ohio, That upon the completion and dedication of the
Cuyahoga county soldiers' and sailors' monument, the board of monumental
commissioners shall select and appoint a board of five commissioners,
to be known and designated as 'the Cuyahoga county soldiers' and sailors'
monument commissioners.' Said board shall be union ex-soldiers or
sailors of the war of the rebellion, or a member or descendant of
members of either of the army organizations known - as, the grand
army of the republic, union veterans' union, or a member of the first
class in good standing of the military order of the loyal legion of
the United States, and residents of Cuyahoga county, and shall meet
and organize within ten days after their appointment, by the election
from their members of a president and secretary, and shall serve without
pay. Such board shall be perpetual, and the members thereof, shall
have power, and be required within ten days after occurrence, to fill
vacancies, by selecting and appointing a Union ex-soldier or sailor
of the war of the rebellion, or a descendant of same, residing in
Cuyahoga county. The members of such board, and their successors shall
take an oath to faithfully perform their duties in caring for the
monument, and the grounds surrounding it. Said board shall be empowered
to make such rules and regulations for their government, and for the
care of the monument and grounds surrounding the same, as in their
judgment is required, and shall have the power to employ a suitable
Union ex-soldier or sailor of the war of the rebellion, or of the
regular army of the United States or descendant of either, as attendant
and custodian of such monument and grounds, at a reasonable compensation,
to be paid from the general fund of the county, upon a voucher of
the president and secretary of the monument commissioners. Such attendant
and custodian shall be invested with the ordinary powers and authority
of a policeman.
Sec. II. Said monumental commissioners, and the board
herein provided for, shall have such control of the grounds of the
southeast section of the public square, including the streets, lawns,
and sidewalks surrounding the same, as will enable them to properly
perform their duties as commissioners, and for no other purpose, and
shall have the authority to direct the manner of curbing the streets
on the south and east sides of the said southeast section of the square,
also, the laying of the crosswalk therein. Such commissioners, or
the attendant and custodian of the monument, shall have full authority
to remove and restrict express wagons, moving vans, drays, public
hacks, street railroad transfer stations, hucksters, wagons, advertising
devices, or decorations and all other obstructions for making their
stands within the curbing, or in the streets adjoining and contiguous
to the curbing around said southeast section of the public square.
Any violation of this restriction is hereby declared unlawful, and
offenders upon conviction of such violation may be punished as for
disorderly conduct.
Sec. III. Said board of monument commissioners are
authorized to employ such assistants as may be required to take care
of the monument and grounds, and from time to time, to make necessary
repairs and improvements to the monument and grounds, also to provide
for electric heating and lighting; payments to be made therefor as
is provided for the payment to the attendant and custodian. The city
of Cleveland, shall furnish a sufficient supply of water for use in
and about the monument, and the grounds surrounding the same free
of charge.
Sec. IV. Said board of monument commissioners shall
have the authority to place the tools, hose, ladders, and implements
required for use in the tool-house used by the park commissioners
of the city of Cleveland located in the public square or in the basement
of the court house as said board may direct without any cost for storage."
Section I of the above act was amended in 1902 but
only to the effect of establishing a ceiling of one thousand dollars
per year for supervision, clerical and historical work, 95 Ohio Laws
799 (1902).
Thus, a member of the Cuyahoga County Soldiers and Sailors
Monument Commission may fulfill the first four tests applied to determine
whether he has been appointed to an office. It can be discerned that (1)
he is appointed; (2) he has a title; (3) in a manner, he exercises a function
concerning the public; and (4) he is not subject to a contract of employment.
It is the question of the exercise of "sovereign power" therefore, which
determines the issue.
Certainly the duties performed by a member of the Monument
Commission are performed on behalf of the community, however, as regards
the ethics law, it would be inaccurate to adjudge them an exercise of
"sovereign power." The principle duty of the Commission as set forth above
is "caring for the monument and the grounds surrounding the same." To
this end the Commission may draft rules and regulations for their internal
government, hire a custodian, set his compensation, set restrictions on
the use of what is described as the "southeast corner of public square,"
make repairs and improvements on the monument and the like. These acts
are indeed a public service performed by the members of the Commission;
however, they are not an exercise of "sovereign power."
Although the above listed tests have only been applied
in making determinations as to the persons appointed to an office of the
state in Division (A) of Section 102.04 of the Revised Code, the parallel
language of Division (B) demands the application of the same test as regards
persons appointed to offices of other governmental entities listed there.
The results of applying the tests would, likewise, be the same.
Therefore, it is the opinion of the Ohio Ethics Commission
and you are so advised, that a member of the Cuyahoga County Soldiers
and Sailors Monument Commission is not a person who has been appointed
to an office of a commission of the state or the county for purposes of
Section 102.04 (A) or (B) of the Revised Code, and therefore, is
OHIO ETHICS COMMISSION
(Mrs.) Barbara H. Rawson, Chairman
[Return to Top of Page]
|