May a Common Pleas judge teach a class at a state university and accept reimbursement for it?

Ohio BPC Opinion 86-002: Common Pleas Judge Instructing at a State University

Short answer: The opinion concluded that a Common Pleas judge could serve as a visiting lecturer at a state university so long as the activity did not interfere with judicial duties, and could accept reimbursement for reasonable and necessary expenses but not "fees or perquisites" under Article IV, Section 6(B) of the Ohio Constitution.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the bar's rules of judicial conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.

View original opinion

Plain-English summary

This opinion responded to a Common Pleas judge's question about whether the position of "visiting lecturer" at a state university constituted an "office of profit or trust under the authority of this state" within the meaning of Article IV, Section 6(B) of the Ohio Constitution, which prohibits Ohio judges from receiving fees or perquisites or holding other offices of profit or trust.

The Board concluded that a visiting lecturer was not a "public officer" within the constitutional prohibition. The Board applied the four-factor characterization from State ex rel. Bricker v. Gessner, 129 Ohio St. 290, 195 N.E. 63 (1935), which described a public office as "a charge or trust conferred by public authority for a public purpose, the duties of which involve in their performance the exercise of some portion of the sovereign power." A visiting lecturer, the Board held, did not exercise any portion of the sovereign power and therefore was not within the prohibition.

The Board noted that this conclusion did not exempt the judge from the obligation under Canon 5 of the then-applicable Code of Judicial Conduct to regulate extra-judicial activities to minimize the risk of conflict with judicial duties.

On the second question (reimbursement), the Board concluded that while the Ohio Constitution prohibited the receipt of "fees or perquisites," the judge could accept reimbursement for reasonable and necessary expenses under Canon 6(B) of the then-applicable Code of Judicial Conduct.

Currency note

The Board of Commissioners' status list flags this opinion as Withdrawn by Opinion 2021-11 on December 10, 2021. The opinion was also issued under the former Ohio Code of Judicial Conduct, which was superseded by the current Ohio Code of Judicial Conduct effective March 1, 2009, and was flagged "Not Current" earlier in light of subsequent amendments to Canons 1 through 6 effective May 1, 1997 and to Chapter 102 of the Ohio Revised Code (see Opinion 94-12). The current Ohio Code of Judicial Conduct restructures extra-judicial-activity restrictions and reimbursement under different canons. Treat this page as historical context, not current guidance. Do not rely on the Canon 5 or Canon 6(B) numbering cited here as current. Verify against current rules before acting.

Common questions

Q: Did the opinion treat a state-university teaching position as a public office under the Ohio Constitution?

A: No. The opinion applied the State ex rel. Bricker v. Gessner characterization of public office (requiring the exercise of some portion of the sovereign power) and concluded that a visiting lecturer was not a public officer and thus fell outside the prohibition in Article IV, Section 6(B).

Q: Could the judge be paid for teaching?

A: The opinion drew the line at "fees or perquisites" (prohibited by the Ohio Constitution) versus reimbursement for "reasonable and necessary expenses" (allowed under Canon 6(B) of the then-applicable Code of Judicial Conduct). The judge could accept reimbursement of reasonable and necessary expenses but not fees.

Q: Did the opinion impose other limits on the teaching activity?

A: Per the opinion, although the teaching was not a public office, the judge remained subject to Canon 5 of the then-applicable Code of Judicial Conduct, which required the judge to regulate extra-judicial activities to minimize the risk of conflict with judicial duties.

Background and rules framework

The opinion interpreted Article IV, Section 6(B) of the Ohio Constitution and Canons 5 and 6(B) of the former Ohio Code of Judicial Conduct, as well as the public-office definition from State ex rel. Bricker v. Gessner, 129 Ohio St. 290, 195 N.E. 63 (1935). The former Code of Judicial Conduct was replaced by the current Ohio Code of Judicial Conduct effective March 1, 2009, and the canon structure cited here does not correspond to the current canon numbering.

Citations and references

Constitutional provisions:

• Ohio Const. Art. IV, Section 6(B) (judicial offices of profit or trust; fees or perquisites)

Rules of Judicial Conduct:

• Former Ohio CJC Canon 5 (extra-judicial activities)
• Former Ohio CJC Canon 6(B) (compensation and reimbursement)

Cases:

• State ex rel. Bricker v. Gessner, 129 Ohio St. 290, 195 N.E. 63 (1935), defining "public officer"

See also

No sibling opinions yet indexed.

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-86-002.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 3370, COLUMBUS, OH 43215-6105
(614) 644-5800 FAX: (614) 644-5804

OFFICE OF SECRETARY

OPINION 86-002

[Former CJC Opinion-provides advice under the former Ohio Code of Judicial Conduct which is superseded by the Ohio Code of Judicial Conduct, eff. 3/1/2009.]

[Not Current- subsequent rule amendments to Canons 1 through 6, Ohio Code of Judicial Conduct, eff. May 1, 1997 and amendments to Chapter 102, Ohio Revised Code (See Op. 94-12)]

SYLLABUS: A Common Pleas Judge may instruct a class at a state university and receive reimbursement as long as these activities do not interfere with his duties as Judge.

TO: Judge Frederick D. Pepple, Court of Common Pleas, Auglaize County, Wapakoneta, OH

FROM: Board of Commissioners on Grievances and Discipline of the Judiciary

DATE: May 5, 1987

We have before us your request for our opinion on the following question: "May a Common Pleas Judge instruct a class at a university so long as such does not interfere with his duties as Judge and if so, may such Judge accept nominal reimbursement?"

In order to answer your first question, it must be considered whether, inter alia, there exist any pertinent constitutional or statutory provisions which limit the outside employment of a Common Pleas Judge.

Ohio Const. Art. IV, Section 6(B) provides in part: "Judges shall receive no fees or perquisites, nor hold any other office of profit or trust, under the authority of this state, or of the United States." Thus, we must determine whether the position of visiting lecturer at a state university qualifies as an office of profit or trust, under the authority of this state.

We believe instructing at a state university does not constitute holding of an office. In State ex rel. Bricker v. Gessner, 129 Ohio St. 290, 195 N.E. 63 (1935), the Court enumerated the characteristics of public officer, now found in Art. IV, Section 6(B) and stated as follows:

" . . . a public office is a charge or trust conferred by public authority for a public purpose, the duties of which involve in their performance the exercise of some portion of the sovereign power, whether great or small. A public officer is an individual who has been appointed or elected in the manner prescribed by law, who has a designation or title given to him by law, and who exercises the function concerning the public assigned to him by law." 129 Ohio St. at 293-294, 195 N.E. at 65.

Clearly, a visiting lecturer is not a public officer as herein defined and therefore is not within the prohibition of Art. IV, Section 6(B) of the Ohio Constitution. This is not to say that such a position transcends Canon 5 of the Code of Judicial Conduct, which requires a judge to regulate his extra-judicial activities to minimize the risk of conflict with his judicial duties.

In regard to your second question concerning reimbursement, a judge may not receive "fees or perquisites." Ohio Const. Art. IV, 6(B). However, you may accept reimbursement for reasonable and necessary expenses. Code of Judicial Conduct, Canon 6(B).

In conclusion, it is our opinion, and you are so advised, that a judge of a Common Pleas Court is not prohibited by either Ohio Const. Art. IV, Section 6(B) or the Code of Judicial Conduct from holding the position of visiting lecturer of the state university.

This opinion is advisory in nature, is based upon the facts as presented and limited to questions arising under the Code of Professional Responsibility and the Code of Judicial Conduct.

JAMES W. MASON, Esq.
Secretary, Board of Commissioners
Grievances and Discipline
of the Judiciary of
The Supreme Court of Ohio