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Syllabus by the Ohio Ethics Commission:
1) A member of an Institution Advisory Council, created
pursuant to Executive order G-12 (Revised January, 1976) of the Ohio
Department of Mental Health and Mental Retardation is not a person
elected or appointed to an office of or employed by an instrumentality
of the state, and therefore, is not subject to the provisions of Sections
102.03 (A) and 102.04 (A) of the Revised Code.
2) A member of an Institution Advisory Council, created
pursuant to Executive Order G-12 (Revised January, 1976) of the Ohio
Department of Mental Health and Mental Retardation is not a "public
official or employee" as that term is defined in Section 102.01 (B)
of the Revised Code and, therefore, is not subject to the provisions
of Divisions (B),(C), and (D) of Section 102.03 of the Revised Code.
* * * * * *
Your request for an advisory opinion asks whether a violation
of the ethics law would occur if an attorney served as a member of the
Central Ohio Psychiatric Hospital Institution Advisory Council. You state
that the Central Ohio Psychiatric Hospital Advisory Council was created
pursuant to Executive Order G-12 (Revised January, 1976) of the Ohio Department
of Mental Health and Mental Retardation.
No violation of Chapter 102 of the Revised Code, the
ethics law, would occur per se when an attorney serves as a member
of an Institution Advisory Council. However, Sections 102.03 and 102.04
of the Revised Code prohibit persons who hold public office or who are
public employees from engaging in certain types of activities.
Section 102.04 (A) of the Revised Code applies to any
"person elected or appointed to an office of or employed by . . . any
. . . instrumentality . . . of the state . . . " Section 102.03 (A) of
the Revised Code applies to "state officials and employees."
Ohio Ethics Commission Advisory opinion 76-008 defined
the term "state official or employee" to include "persons elected or appointed
to an office of or employed by . . . any . . . instrumentality of the
state . . ." Thus, Section 102-03 (A) of the Revised Code has been interpreted
to apply to the same class of persons as Section 102.04 (A) of the Revised
Code.
Executive Order G-12 (Revised January, 1976) of the Ohio
Department of Mental Health and Mental Retardation, which created Institution
Advisory Councils pursuant to the power vested in that Department to promulgate
department rules and regulations by Section 111.15 of the Revised Code,
must be reviewed to determine if a member of an Institution Advisory Council
is a "person elected or appointed to an office of or employed by . . .
any . . . instrumentality of the state . . . "
The term "instrumentality" is defined in Ohio Ethics
Commission Advisory Opinion No. 75-004 as "any agency or organizational
unit of government." Thus, "any . . . instrumentality of the state is
any agency or organizational unit of the state.
Since the Executive Order which created the Institution
Advisory Councils was promulgated by a state department, the Department
of Mental Health and Mental Retardation, and since the Institution Advisory
Councils are financed by and established to advise state hospitals, institutes,
mental health centers, and other facilities under the management of the
Department of Mental Health and Mental Retardation, the Institution Advisory
Councils are an "instrumentality of the state."
To determine if a member of an Institution Advisory Council
is "a person elected or appointed to an office of or employed by . . .
any . . . instrumentality of the state . . . " it is necessary to review
the provisions of the Executive Order creating the Councils.
Section V, B, 1 of the Executive Order provides that
two-thirds of the members of Institution Advisory Councils are appointed
by the Mental Health and Mental Retardation Advisory Council and the remaining
one-third are appointed by the Institution Advisory Council members appointed
by the Mental Health and Mental Retardation Advisory Council. That Section
further provides that the members shall serve two year terms. Section
V, B, 13 of the Executive Order provides that the members receive no salary
and are entitled only to the reimbursement for travel and meals.
Section V, A of the Executive Order describes the duties
and functions of the Institution Advisory Council:
"V. SUBJECT CONTENT
A. Description
The Institution Advisory Council shall advise
and assist the Managing Officer of the institution and
the directors of its various departments in any or all matters
pertaining to the planning, administration, and governing of the
institution. The matters may include but shall not be limited
to:
1. advising the institution of the community's
needs for services;
2. advising the institution as to the
appropriateness of, but not the professional structure of, various
institutional programs;
3. advising the institution of community
attitudes toward the institution;
4. communicating to the community institutional
needs and programs involving adequate transitional and aftercare
programs;
5. being available to the institution's
management in the event that difficult problems arise;
6. advising in the areas of personnel
problems, budgetary matters, systems and procedures within the
institution, institutional policies, and programmatic elements
and changes;
7. reviewing any rules or regulations
of the institution and advising the Managing Officer and Commissioner
as to the appropriateness, content, or wording of such rules and
regulations;
8. submitting an annual report of the
Institution Advisory Council's activities to the appropriate Commissioner;
9. consulting with regard to the selection,
appointment, or removal of the Managing Officer;
10. recommending service priorities for
future program development based on unfulfilled client and community
needs;
11. serving as advocate for clients and
their families and providing a method for serving in this capacity;
and
12. communicating, if deemed necessary,
with the District Manager, Governor, Legislature, 648 Board(s),
169 Board(s), and Department." (Emphasis added)
From the above quoted Section of Executive Order G-12
(Revised January, 1976) it is clear members of Institution Advisory Councils
are not elected.
The next issue to be determined is whether the members
are "appointed to an office of an instrumentality of the state" or "employed
by an instrumentality of the state" and thus within the purview of Section
102.03 (A) and 102.04 (A) of the Revised Code.
The Ohio Ethics Commission in Advisory Opinion No. 75-004,
used several tests to determine whether a person has been appointed to
an "office" for purposes of Section 102.04 (A) of the Revised Code: (1)
was he appointed; (2) does he have a title; (3) does he exercise functions
of government concerning the public; (4) is he not subject to a contract
of employment; and, (5) does he exercise sovereign power. Sovereign power
is described in that Advisory Opinion as, " . . . 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." That Advisory Opinion went on to hold that
finding facts, assisting in the formulation of plans and the making of
recommendations was not the exercise of sovereign power.
From the Sections of the Executive Order discussed above,
it is clear a member of an Institution Advisory Council is 1) appointed;
2) has the title of member of an Institution Advisory Council; 3) exercise
a function of government concerning the public; and, 4) is not subject
to a contract of employment.
After reviewing the duties and functions of the Institution
Advisory Councils established by Section V, A it is also clear that the
members of the Institution Advisory Councils functions only in an advisory
or consulting capacity and, therefore, do not exercise sovereign power.
Thus, although the members of Institution Advisory Councils meet the first
four tests of being appointed to an "office," since Institution Advisory
Councils do not exercise sovereign power the members are not "appointed
to an office" for purposes of Sections 102.03 (A) and 102.04 (A) of the
Revised Code.
Having determined that members of Institution Advisory
Councils are not elected or appointed to an office of an instrumentality
of the state, it remains to be determined if they are employed by an instrumentality
of the state and, thus, subject to Sections 102.03 (A) and 102.04 (A)
of the Revised Code.
Ohio Ethics Commission Advisory Opinion No. 75-022 established
four tests to determine if an employee-employer relationship exists:
1) the selection and engagement of the employee;
2) the payment of salary or wages;
3) the power of dismissal, and;
4) the power of control of the employee's conduct.
That Advisory Opinion went on to hold that "these tests
are applied in a balancing manner and no single test is determinative,
although the test of ?control of the employee's conduct' is essential
to an employer-employee relationship."
Reviewing Executive Order G-12 (Revised January, 1976)
and applying the employee-employer relationship tests set out above, it
may be determined that:
1) the members of the Institution Advisory Councils
are selected and engaged either by the Department of Mental Health
and Mental Retardation Council or by the members of the Institution
Advisory Council itself;
2) The members do not receive a salary or wages;
3) the members may be dismissed from the Council
only for their failure to attend three consecutive meetings; and,
4) the Department of Mental Health and Mental Retardation
exercises no control over the manner in which the members of Institution
Advisory Councils perform those duties and functions prescribed in
Section V, of the Executive Order other than to provide in Section
V, B, 4 and 5 of the Executive Order that the meetings of the Institution
Advisory Council be held once every two months with 10 days notice
to the members prior to every meeting except special meetings in which
case 10 days notice is not required and that the meetings shall be
open to the public.
The requirements of regular meetings are procedural and
are not an indication of control by the Department of Mental Health and
Mental Retardation over an Institution Advisory Council member's conduct
in the performance of his duties.
Thus, members of Institution Advisory Councils clearly
do not meet three of the four tests of an employee-employer relationship;
they do not receive wages or a salary, they are not subject to dismissal
at the discretion of the Department of Mental Health and Mental Retardation,
and the Department does not exercise control over the Institution Advisory
Council members in the performance of their duties and functions. Since
three of the four employee-employer tests are not met, members of Institution
Advisory Councils are not employees of an instrumentality of the state.
A member of an Institution Advisory Council is not a
"person elected or appointed to an office of or employed
by . . . any . . . instrumentality . . . of-the state . . . " (Emphasis
. added) Therefore, a member of an Institution Advisory Council is not
of the class of persons to which Sections 102.03 (A) and 102.04 (A) of
the Revised Code apply.
The three other Divisions of Chapter 102 of the Revised-Code
which affect the conduct of certain persons holding public office or employed
by a public agency are Divisions (B), (C), and (D) of Section 102.03 of
the Revised Code.
These Divisions of Section 102.03 of the Revised Code
apply to "public officials and employees" as that term is defined in Section
102.01 (B) of the Revised Code:
"'Public official or employee' means any person who
is elected or appointed to an elective office or employed by
any public agency." (Emphasis added)
As determined in the previous discussion of Executive
Order G-12 (Revised January, 1976), members of Institution Advisory Councils
are not elected to an office of, nor are they employed by, any public
agency of the state. The members are not appointed to an elective office
since the position of member of an Institution Advisory Council is one
which may only be obtained through an appointment, not an election.
Thus, an Institution Advisory Council member is not a
"public official or employee" as that term is defined in Section 102.01
(B) of the Revised Code and not of the class of persons to which Divisions
(B), (C), and (D) of Section 102.03 applies.
Therefore, it is the opinion of the Ohio Ethics Commission
and you are so advised that a member of an Institution Advisory Council,
created pursuant to Executive Order G-12 (Revised January, 1976) of the
Ohio Department of Mental Health and Mental Retardation is not a person
elected or appointed to an office of or employed by an instrumentality
of the state and, therefore, is not subject to the provisions of Section
102.03 (A) and 102.04 (A) of the Revised Code; and that a member of an
Institution Advisory Council, created pursuant to Executive Order G-12
(Revised January, 1976) of the Ohio Department of Mental Health and Mental
Retardation is not a "public official or employee" as that term is defined
in Section 102.01 (B) of the Revised Code and, therefore, is not subject
to the provisions of Divisions (B), (C), and (D) of Section 102.03 of
the Revised Code.
OHIO ETHICS COMMISSION
Merom Brachman, Chairman
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