At its Oct. 2 meeting, the Ohio Ethics Commission issued formal Advisory Opinion No. 2020-03, which addresses ethics questions about public officials and employees attending ceremonial events. Specifically, the commission’s opinion responds to the question of whether public officials or employees are prohibited from accepting an invitation to attend an event where the official or employee is performing a ceremonial or honorary function.

The opinion reminds public officials and employees of their obligations under RC 102.03(D) and (E), which state:

(D) No public official or employee shall use or authorize the use of the authority or influence of office or employment to secure anything of value or the promise or offer of anything of value that is of such a character as to manifest a substantial and improper influence upon the public official or employee with respect to that person's duties.

(E) No public official or employee shall solicit or accept anything of value that is of such a character as to manifest a substantial and improper influence upon the public official or employee with respect to that person's duties.

Under the statute, a “thing of value” is something “of such a character as to manifest a substantial and improper influence” on a public official or employee if it is “of such a quality, nature or kind that it could have a substantial and improper influence on the public official or employee” with respect to that person’s duties. It can include things like money, gifts, meals, travel expenses and entertainment.

The Commission reviewed Advisory Opinion No. 2019-01, in which it determined that an unsolicited, ceremonial gift given to a public official or employee that has little intrinsic, marketable, or utilitarian value and is intended for presentation, such as a personalized plaque, picture, framed certificate, trophy, or similar item is generally not a thing of a substantial value. The Commission noted that while this type of a ceremonial gift can be desirable to a public official or employee for its sentimental value, it is not a valuable thing or benefit that is of such a character as to have a substantial and improper influence on the official or employee in the performance of his or her public duties.

For that reason, the Commission concluded that a public official is not prohibited from accepting these types of ceremonial gifts. The Commission cautioned, however, that some ceremonial gifts would not come under this exemption even if they are unsolicited and personalized. Examples would include a plaque, picture, or trophy that: has general desirability or marketability as a valuable object of art or a collectible item; has significant utilitarian value; or incorporates materials of significant value, such as precious metals or gems. The Commission stated that under these circumstances, even though the item is intended as a ceremonial gift, it would be a valuable thing or benefit that is of such a character as to improperly influence the official or employee in the performance of his or her public duties.

In the opinion that issued last week, the Commission applied a similar analysis and determined that, under certain circumstances, the Ethics Law would not prohibit a public official or employee from accepting an invitation from a prohibited source to attend a ceremonial event, such as the opening of a new exhibit, a ground-breaking or ribbon-cutting ceremony, or other public event, where the official or employee is present in a ceremonial role or honorary capacity. A ceremonial role means an act performed at an event by the official as a representative of the official’s agency at the request of the holder of the event where, for a period of time, the focus of the event is the act performed by the official.

To provide further clarity and guidance, the Commission offered the following criteria to help identify when attendance at a ceremonial event is objectively related to the official’s or employee’s authorized duties:

  1. The event is clearly presented as ceremonial in nature;
  2. The event is formally scheduled, advertised, and open to the public and media;
  3. The official or employee is invited to attend the event as a representative of his or her public agency;
  4. The event is related to the work of the public agency the invited public official or employee serves;
  5. The attending public official or employee is performing a designated ceremonial or honorary function appropriate to his or her public position; and
  6. The attending public official or employee stays at the event for the time reasonably necessary to perform his or her official duties.

The Commission found that where these circumstances are present, there is no potential conflict of interest because the public official or employee is representing the public agency they serve, and their presence serves a public purpose.

If you have additional general questions about your obligations or responsibilities under Ohio Ethics Laws, please contact the Division of Legal Services at (855) OSBA-LAW.

Posted by Sara C. Clark on 10/16/2020