Ohio Board Advisory Opinion Op. 22-09

OCR transcription; preserved printed pages are authoritative

e Ohio Board of Professional Conduct

OPINION 2022-09
Issued October 7, 2022
Withdraws Adv. Op. 2004-3, 2009-7

Magistrate Simultaneously Holding a Nonjudicial Elective Office

SYLLABUS: A full-time or part-time magistrate may not seek election to, or serve on, a

local, city, or state board of education, city council, or county board of commissioners.

This nonbinding advisory opinion is issued by the Ohio Board of Professional Conduct
in response to a prospective or hypothetical question regarding the application of
ethics rules applicable to Ohio judges and lawyers. The Ohio Board of Professional
Conduct is solely responsible for the content of this advisory opinion, and the advice
contained in this opinion does not reflect and should not be construed as reflecting the
opinion of the Supreme Court of Ohio. Questions regarding this advisory opinion
should be directed to the staff of the Ohio Board of Professional Conduct.

e> Ohio Board of Professional Conduct

65 SOUTH FRONT STREET, 5™ FLOOR, COLUMBUS, OH 43215-3431
Telephone: 614.387.9370 Fax: 614.387.9379
www.bpc.ohio.gov

PATRICIA A. WISE RICHARD A. DOVE
CHAIR DIRECTOR
Hon. D. CHRIS COOK D. ALLAN ASBURY
VICE- CHAIR SENIOR COUNSEL
KRISTI R. MCANAUL
COUNSEL

OPINION 2022-09
Issued October 7, 2022
Withdraws Adv. Op. 2004-3, 2009-7

Magistrate Simultaneously Holding a Nonjudicial Elective Office

SYLLABUS: A full-time or part-time magistrate may not seek election to, or serve on, a

local, city, or state board of education, city council, or county board of commissioners.
APPLICABLE RULES: Jud.Cond.R. 1.2, 1.3, 3.1, 4.5
QUESTION PRESENTED:

Is it proper for a full-time or part-time magistrate to serve on, or run for election

to, a local, city, or state school board, a board of county commissioners, or a city council?
OPINION:
Question 1

The issue of whether a full-time or part-time magistrate may seek election to, or
continue to serve in, a nonjudicial elective office is governed by the Code of Judicial
Conduct.! Both judges and full-time and part-time magistrates are required to resign

from judicial office upon becoming a candidate in a primary or general election for a

1 The Ohio Constitution and related statues prohibit judges from holding any other public office of profit
or trust under the authority of Ohio or the United States. See Ohio Const. Art. IV, Sec. 6(B); R.C. 141.04;
R.C. 1901.11(D); R.C. 1907.16(B). However, magistrates, unlike judges, are not subject to the constitutional
and statutory prohibitions on holding any other office of profit or trust. 1996 Ohio Op. Atty. Gen. No. 1996-
032 (constitutional and statutory prohibitions on holding offices of profit or trust not applicable to
magistrates.)

Op. 2022-09 2

nonjudicial elective office. Jud.Cond.R. 4.5; Jud.Cond.R., Application I(B). The “resign to
run” rule prevents the misuse of judicial office and avoids the potential for sitting judges
or magistrates from making improper pledges, promises, or commitments as candidates
for a nonjudicial office. Jud.Cond.R. 4.5, cmt.[1]. The rule also prevents the appearance
of impropriety and the entanglement of a court or its judicial officers in political

controversies.

The underlying rationale of Jud.Cond.R. 4.5 for requiring a judicial officer to
“resign to run” applies equally to a magistrate simultaneously holding another elective
public office as a school board member, a city council member, or a county
commissioner.” The Board concludes that because Jud.Cond.R. 4.5 prohibits a magistrate
from holding judicial office while seeking a nonjudicial elected office, it would be
inconsistent to read the rule as permitting a magistrate to hold a nonjudicial public office
at any time. If a lawyer holds a nonjudicial elected office and subsequently receives an
appointment as magistrate, the lawyer must either decline the appointment or resign

from the nonjudicial public office.

A magistrate’s holding of another public office also implicates other judicial
conduct rules. Magistrates must always act in a manner that promotes public confidence
in the independence, integrity, and impartiality of the judiciary, avoid impropriety and
the appearance of impropriety, and avoid abusing the prestige of office. Jud.Cond.R. 1.2,
1.3. The simultaneous holding of a position as magistrate and another public office may
result in an impairment of public confidence, undermine judicial independence, and
increase the potential that the prestige of the judicial office would be abused to advance
the interests of the other public office. The holding of another public office when viewed
as an extrajudicial activity also increases the risk that a reasonable person may question
the judge’s independence, integrity, or impartiality when performing his or her judicial
duties. Jud.Cond.R. 3.1(C).

2 In the case of a magistrate serving as a city council member, both R.C. 731.02 and R.C. 705.12 limit the
holding of other public offices by a council member. Advice as to statutory compatibility issues is under
the advisory authority of the Office of the Ohio Attorney General.