This past Wednesday, Oct. 19, was Global Ethics Day, meaning this is an ideal time to think about rules governing the compatibility of public offices. These situations arise when public officials like school board members wish to serve in other public roles while on the school board. By nature, school board members are often civic-minded and community-oriented individuals involved in different community or service ventures. However, despite the best of intentions, serving in multiple public roles can create thorny conflicts of interests for board members and, in many situations, the law prohibits holding two public positions at once. In such scenarios, school board members who want to serve in another public position must choose between their position as a board member and the other office or position.

If you are a board member interested in holding two simultaneous positions, it is important to ensure the two positions are compatible. Compatibility issues are governed by several different statutes and common law doctrine. The office of the Ohio Attorney General (OAG) has published many advisory opinions on this topic, and its guidance and opinions are helpful in determining whether two positions are compatible. In particular, the OAG’s Compatibility of Public Offices or Positions Index is useful in identifying situations in which two positions are compatible. As the index notes, the OAG’s 1979 Opinion No. 79-111 forms the basis of its analysis of compatibility issues. The approach involves asking seven questions to determine compatibility of offices:

1. Is either of the positions a classified employment within the terms of Ohio Revised Code 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 office subordinate to, or in any way a check upon, the other?

4. Is it physically impossible for one person to discharge the duties of both positions?

5. Is there a conflict of interest between the two positions?

6. Are there local charter provisions, resolutions or ordinances that are controlling?

7. Is there a federal, state, or local departmental regulation applicable?

While these questions form the analytical framework of the OAG’s approach, it is also helpful to review the opinions listed in the index that address specific compatibility scenarios the OAG has already analyzed, many of which specifically address school board members. For instance, the OAG has issued opinions determining that membership on a local school board is compatible with serving as the fiscal officer of a township, a village police chief, and even a student in the district, as long as the board member takes certain steps to remove themselves from specific discussions and actions that create a conflict of interest. Conversely, membership is not compatible with serving as a county commissioner or county park board commissioner in the county in which the district is located or the governing board of the educational service center that serves the district.

As these decisions illustrate, even in situations in which the positions are legally compatible, board members must still take action to avoid conflicts of interest in specific situations, meaning they may need to avoid discussing, deliberating or voting on issues that affect their other position. The Ohio Ethics Law also governs officials serving in two compatible public positions. More information about how the Ethics Law applies is available in this Ohio Ethics Commission information sheet. Also, the incompatibility of two elected public offices does not necessarily mean board members are prohibited from running for another office, even if the board member would be prohibited from serving in both positions at the same time—it means that if they are elected to a second office, they must choose between their board membership and the other position.

For more information about this and other ethics topics, please consult the Ethics section on our website. You can also purchase the OSBA Ohio School Ethics Guide here. For questions on this topic, please contact the legal division at 855-OSBA-LAW.

Posted by John R. Price on 10/21/2022