The Ohio Attorney General’s office recently issued an opinion that concluded a deputy sheriff who is employed in classified service may simultaneously serve as a member of a city or local school district board of education with a few limitations. The opinion was released on October 27th, 2015. The question of law turned on an interpretation of Ohio Revised Code §124.57(A), which states that an officer or employee in the classified service of the state or a public municipality is prohibited from 1) receiving any contribution for a political party or candidate for public office; 2) being an officer in any political party; or 3) taking part in politics other than to vote.
In analyzing the issue, the drafter of the opinion relied on a seven-question test to determine whether the two public positions were compatible. The test includes the following:
1. Is either of the positions considered classified employment within the terms of R.C. §124.57?
2. Do the empowering statutes of either position limit employment in another public position or the holding of another public office?
3. Is one position subordinate to, or in any way a check upon the other?
4. Is it physically possible for one person to discharge the duties of both positions?
5. Is there an impermissible conflict of interest between the two positions?
6. Are there local charter provisions, resolutions, or ordinances which are controlling?
7. Is there a federal, state, or local departmental regulation applicable?
The first question about whether a deputy sheriff serves as classified staff was answered in the affirmative, unless the deputy is assigned special duties which alter his or her status as a classified employee. In analyzing the second question, since a board of education member is elected in a nonpartisan election, and no other laws expressly prohibit a sheriff from serving as a board member or vice versa, the Attorney General opined that a deputy sheriff may lawfully run for the position subject to a few limitations discussed more fully below. And, in review of the third question, the opinion concluded that the deputy’s position in particular was not really subordinate to the board of education even when that deputy served as the district’s DARE officer, since the county sheriff and not the board generally determined specific duties and assignments. The opinion quickly dispensed with any concerns about whether an individual could physically perform the duties of both jobs under the fourth question, again affirming there was no issue as long as the deputy was able to serve on the board through use of leave or some other means when he/she was simultaneously assigned to active duty as a deputy.
However, when analyzing the fifth question in the test, the opinion concluded there was the potential for a number of conflicts of interest to arise when the individual carried out his or her duties as deputy and board member. First, there is a potential conflict of interest in preparation of and submission of budgets to the county commissioner, since the county sheriff and the board of education may compete for limited funds. This conflict could be avoided as long as the member did not appear before the county commissioner for budget matters on behalf of either organization. Second, the attorney general also recognized a potential conflict in the event both the sheriff and the board of education sought levies. However, the opinion recognized that the chance for conflict was low, and further could be avoided as long as the individual did not participate in any board member discussions, deliberations, and votes concerning the levy. Third, the opinion notes there is a potential conflict when the deputy is required to investigate an employee or member of the board of education, which can be avoided by reassigning the investigation to another deputy or another law enforcement agent. Fourth, there could be a conflict when contracts are negotiated between the board and the sheriff’s office. Again as long as the deputy refrains from any board deliberations about the contract, and as long as the deputy is not assigned to serve the board through the contract, the conflict is avoidable. Finally, the deputy may avoid any conflict with regard to allocation of trust fund grants such as through the D.A.R.E. program as long as the deputy is not a part of the internal control policy that determines how money is allocated.
The answers to the sixth and final questions in the test mentioned above were in the negative, since there were no applicable state or local regulations that applied in this case. Therefore, as long as the deputy avoided the potential conflicts mentioned above, the attorney general concluded that the positions of deputy sheriff and board of education member were compatible. In closing, however, the author of the opinion recognized that it may be impossible to consider all possible conflicts that could arise. Should the board member find that he or she must frequently refrain from deliberations, it is possible the member will eventually have a duty to resign from one position.
Click here to review the opinion in full.
Ohio Attorney General Opinion No. 2015-032.