State of OhioIt seems that every corner of Ohio has seen a high-profile federal public corruption prosecution in recent years. So much so that some may not know that Ohio has its own statutory scheme to hold wayward public officials accountable: the Ohio Ethics Law.

 What Is It?

The Ohio Ethics Law, which was enacted in 1974, is comprised mostly of the provisions of Ohio Revised Code Chapter 102 and Sections 2921.41 and 2921.433. These statutes lay out the ethical rules and standards to which Ohio’s public servants must adhere.[1]

Three different agencies have responsibility for investigating and enforcing the Ohio Ethics Laws.[2] The Board of Commissioners on Grievances and Discipline of the Supreme Court of Ohio has jurisdiction over ethical violations by public servants of the judicial branch.[3] The Joint Legislative Ethics Committee has jurisdiction over matters regarding public officials and employees of the general assembly and legislative agencies.[4] Last, the Ohio Ethics Commission has jurisdiction over all public officials and employees of public agencies that are a part of Ohio Executive Branch, including those at the state and local levels of government.[5]

Who Does It Cover?

Most public servants in Ohio, from the temporary unskilled laborer in your city’s public works department all the way up to the executives and directors of state public agencies, are “public officials and employees” subject to the Ohio Ethics Law.[6] The law defines a “public official or employee” as generally any person “who is elected or appointed to an office or is an employee of any public agency.”[7] A public agency includes most state and local governmental offices, departments, and divisions, as well public schools and universities.[8] So, if you receive a paycheck from the State of Ohio, you are probably subject to the Ohio Ethics Law.

Everyday teachers and educators, whose positions generally do not include administrative or supervisory authority, are generally not considered public employees for the purposes of the Ohio Ethics Law.[9] High ranking members of the two major political parties, such as central committee members or national convention delegates, are also not public officials or employees for the purposes of the Ohio Ethics Law.[10]

What Conduct Does It Govern?

The Ohio Ethics Law governs a wide range of conduct of public officials. Its provisions fall into four major categories: 1) Prohibitions Against Conflicts of Interest; 2) Financial Disclosure Requirements; 3) Post-Employment Restrictions; and 4) Restrictions Against Interests in Public Contracts.

No Conflicts of Interests Allowed

A conflict of interest generally arises when any of the following occurs: 1) a public official or employee uses the authority of his/her office or position to secure a benefit or avoid a detriment to himself/herself or a person close to him/her; 2) a public official or employee solicits or accepts a thing of value that could result in a substantial and improper influence in the performance of his/her duties; and 3) a public official or employee solicits or accepts supplemental compensation for performing an official duty.

Recommending, approving, or even merely discussing actions that may affect a public official or employee’s interest may be considered a use of his/her authority and, therefore, a violation of the Ohio Ethics Law.[11] It does not matter whether the public official is the final decision maker or even if the recommended course of action is ultimately adopted. For example, hiring a close family member would obviously be nepotism and a violation of the Ohio Ethics Law,[12] but even something as small as directly forwarding on the application materials of a close family member could arguably be considered the use of one’s authority of office to secure a benefit.

Both the value of an item and its source should be taken in consideration when public officials and employees are deciding whether to accept something. Depending on the circumstances, items of value can include things such as: free travel and lodging, meal expenses, gifts, and honoraria.[13] Persons regulated by or seeking to do business with the agency of the public official or employee are often considered improper sources.[14]

Compensation for the performance of an official duty by public official or employee can only come from the public official’s employer.[15] This prohibition is designed, in part, to guard against any appearance of bribery and influence peddling by public servants.

Financial Disclosure Requirements

All persons running for or currently holding elected office in Ohio, as well high-ranking governmental administrators and employees are required to file financial disclosure statements. Subject to certain exceptions, these financial disclosure statements must identify, the names of the filer’s immediate family members, the amount and every source of the filer’s income, the names of companies in which the filer has investments, any investment properties in Ohio, certain creditors and debtors of the filer, and the source’s certain gifts and payments for travel and meal expenses.

Post-Employment Restrictions

After employment with a public agency ends, the former public official or employee cannot represent any person or entity, whether formally or informally, in connection to matters in which the public servant personally participated.[16] This restriction lasts for one year of post-employment for most former public servants,[17] but could last up to two years for former commissioners of the Public Utilities Commission of Ohio, employees that had authority over solid and hazardous waste matters, and employees of the Ohio Casino Control Commission.[18] Additionally, public officials and public employees who are required to file financial disclosures must also file a statement disclosing any subsequent place of employment.[19]

There are a few major exceptions to the post-employment restrictions. First, a public servant that leaves the government may represent his/her former public agency.[20] Second, a former public official or employee may perform ministerial functions, such as filing forms and applications or seeking licenses.[21] Finally, an employee that leaves a public agency for another public agency is not restricted from representing his/her new employer.[22]

Restrictions Against Interests in Public Contracts.

A public official or employee cannot do any of the following: 1) authorize a public contract in which he/she, a member of his/her family, or a business associate has an interest;[23] 2) authorize an investment of public funds in which he/she, a family member of business associate has an interest or receives a fee;[24] 3) profit or benefit from a public contract to which he/she is connected;[25] 4) authorize and profit from a public contract that was not awarded to the lowest bidder after competitive bidding.[26]

A “public contract” is any purchase of any property or services for use by a public agency or contact for the construction or maintenance of a public property[27] A public official “authorizes” a public contract if he/she takes any action whatsoever to vote, deliberate, or otherwise participate in the decision-making process with respect to the implementation of the public contract.[28]

What Are the Penalties?

Although most violations of Chapter 102 only constitute misdemeanors punishable by fines and jail time up six months,[29] much of the conduct covered in the chapter overlaps with the conduct prohibited by the Ohio and federal criminal codes. For instance, the restrictions against receiving extraneous compensation for the performance of an official duty and having an interest in a public contract are plucked directly from Ohio Revised Code Chapter 29. Such conduct also comes dangerously close to the line of felony bribery and unlawful gratuities, which carry prison terms of up to five years under Ohio law[30] and up to two or fifteen years under federal law.[31]

The Ohio Ethics Law and related statutory provisions can be a dense thicket of laws and regulations that affects so many public servants. Unfortunately for those who are not prepared, or who have not taken the time to understand these laws, the consequences for non-compliance can be significant. Public employees, former public employees, and public employees who may be considering leaving the public sector, should ensure that they fully understand the Ohio Ethics Law and its legal obligations.

[1] See Ohio Ethics Law Overview, The Ohio Ethics Commission (last updated May 2019), available at https://www.ethics.ohio.gov/education/factsheets/EthicsLawOverview.pdf.

[2] R.C. 102.01(F).

[3] R.C. 102.01(F)(2).

[4] R.C. 102.01(F)(1).

[5] R.C. 102.01(3).

[6] R.C. 102.01(B).

[7] Id.

[8] R.C. 102.01(C)(1).

[9] R.C. 102.01(B).

[10] Id. Party officials, however, do fall within the scope of Ohio’s bribery statute. R.C. 2921.02.

[11] Ohio Ethics Advisory Opinion No. 2009-04, 1998-04, & 1990-10.

[12] R.C. 2921.42(A)(1).

[13] Ohio Ethics Advisory Opinion Nos. 2001-04 & 2011-04; R.C. 102.03(H).

[14] Id.

[15] R.C. 2921.43(A).

[16] R.C. 102.03(A)(1).

[17] Id.

[18] R.C. 102.03(A)(2)-(3) & (10).

[19] R.C. 102.021

[20] R.C. 102.03(A)(6).

[21] R.C. 102.03(A)(7).

[22] R.C. 102.03(A)(8)-(9).

[23] R.C. 2921.42(A)(1).

[24] R.C. 2921.42(A)(2).

[25] R.C. 2921.42(A)(3).

[26] R.C. 2921.42(A)(4).

[27] R.C. 2921.42(I)(1)(A).

[28] Ohio Ethics Advisory Opinion No. 2001-02.

[29] R.C. 102.99.

[30] R.C. 2921.02.

[31] 18 U.S.C. § 201.